UB School of Law Prof. Gilda Daniels is an expert on voting rights. She took a reduced teaching load this past year to work as director of litigation for the Advancement Project. Her book, Uncounted: The Crisis of Voter Suppression in the United States, is due out this winter from NYU Press. The book examines the phenomenon of disenfranchisement through the lenses of history, race, law and the democratic process. Here are her responses to the June 27 SCOTUS rulings on gerrymandering and the citizenship question on the 2020 census.
If enough is enough, how much is too much? The Supreme Court refused to answer that question in the partisan gerrymandering cases, Rucho v. Common Cause and Lamone v. Benisek.
One case involves a Republican-drafted plan in North Carolina and the other a Democratic-drawn plan in Maryland. In both cases, the drafters explicitly stated that they intended to draw a plan that advantaged their political party. The court, however, found that notwithstanding these proclamations, this was not enough to enter into the “political thicket” of partisan gerrymandering.
Chief Justice John Roberts wrote, “We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.” Justice Elena Kagan expressed her discontent: “Gerrymandering is, as so many Justices have emphasized before, anti-democratic in the most profound sense. Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent.”
With that statement, partisan gerrymandering claims are now in the hands of each individual state. A push for redistricting reform must now focus on the state courts and state legislatures to provide safeguards for partisan overreach.
This reliance on the states raises the stakes for the 2020 election. The partisan gerrymandering ruling provides a clear focus on legislative and congressional elections in 2020. Here’s how: Persons elected in the 2020 cycle will draft the districts for elections that will be held throughout the decade. After states receive the census count for their states, counties, cities, school boards and other jurisdictions in 2021, the redistricting process begins.
This time, it will occur without the federal oversight that Section 5 of the Voting Rights Act provided and with those elected officials understanding that the federal courts will not review their “undemocratic” efforts to game the system in a way that provides an unrealistic advantage to the elected political party. This makes the election in 2020 extremely important, not just for the presidential election but for democracy.
The partisan gerrymandering cases asked the court to provide guidelines on when enough is enough regarding using partisanship as the primary reason for drafting districts. The court not only refused to provide limits, it essentially gave elected officials the ability to carve districts any way they choose in the name of partisanship. The court has, in the past, issued opinions on when the use of race in gerrymandering rises to a constitutionally inappropriate level, but apparently no such limit exists when it comes to partisanship.
Enough is indeed enough.
Citizenship Question on the 2020 Census
The Supreme Court ruled in a 5-4 decision to exclude a citizenship question on the 2020 census, at least for now. The Census is taken every 10 years and used to determine how many persons each election district should include and to distribute federal funds to the states and other jurisdictions.
Without question, including a citizenship question would have a chilling effect on communities of color, Latinx and mixed-status family units. Additionally, the Enumerations Clause requires the Census to count every person, not just those who are citizens. Nonetheless, the Census Bureau argued that it needed the Court to decide whether it could include the citizenship question prior to July 1 in order to include it on the 2020 Census form.
The Census offered that the inclusion was necessary to ensure more effective Voting Rights Act enforcement. It is interesting to note that this administration has not brought any cases under the Voting Rights Act. The Court found that “[a]ltogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision … we cannot ignore the disconnect between the decision made and the explanation given.” In other words, they lied.
Notwithstanding this decision, the Court reiterated that federal agencies have broad discretion and gave a blueprint on how to offer a different reasoning in the future. We will see if July 1 was indeed the real deadline. If so, then the question will not be included on the 2020 form. If the Census Bureau was not truthful about the deadline, as it apparently was not about the rationale to include the question, then the fight over the citizenship question will continue in the lower courts, where plaintiffs have obtained additional evidence that the VRA was not the impetus for the question, but excluding people of color. Hopefully, the citizenship question should be down for the count and not resurrected any time soon.