Tuesday, July 30, 2019

Supreme Court Rejects Addition of Citizenship Question to Census

On June 27, 2019, the Supreme Court ruled that the Trump administration's decision to add a citizenship question to the U.S. census did not violate the Enumeration Clause or the Census Act, but the Commerce Secretary’s rationale for the decision was an unlawful pretext for the actual reason.

In March 2018, Secretary of Commerce Wilbur Ross, announced that he had decided to add a question about citizenship on the 2020 census questionnaire. The Secretary stated that he was acting at the request of the Department of Justice, which sought improved data about citizen voting-age population for the purposes of enforcing the Voting Rights Act’s ban on diluting the influence of minority voters by depriving them of single-member districts in which they could elect their preferred candidates

Civil actions were filed alleging the Secretary’s decision violated the Enumeration Clause of the Constitution and the requirements of the Administrative Procedure Act. Another group of plaintiffs asserted an equal protection claim.

The government argued that the plaintiffs lacked standing to pursue their claims. To have standing, a plaintiff must allege an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant’s challenged behavior; and is likely to be redressed by a favorable ruling.

The Supreme Court affirmed the trial court’s conclusion that the plaintiffs had standing. The evidence established a sufficient likelihood that adding a citizenship question would result in noncitizen households responding to the census at lower rates than other groups. This would cause them to be undercounted and lead to many of the injuries they asserted.

The government also argued the Commerce department’s decision was nonreviewable. In some limited instances, final agency actions can be deemed nonreviewable and committed to the agency’s discretion. Rejecting the government’s argument that the Secretary’s decision to include a citizenship question was not reviewable under the Administrative Procedure Act, the Supreme Court held the decision was amenable to judicial review to ascertain compliance with the Census Act.

The evidence showed that the Secretary was determined to add a citizenship question from the time he entered office. He instructed his staff to make it happen and waited while Commerce officials explored whether another agency would request census-based citizenship data. Late in the course of this process, Commerce officials contacted the Attorney General to ask if the Justice Department would make the request using the Voting Rights Act as the rationale.

The majority concluded that the Secretary had made up his mind to include a citizenship question well before receiving Justice Department’s request, and did so for reasons unrelated to the Voting Rights Act. The decision to add a citizenship question could not be explained by the Justice Department’s request for improved citizenship data to better enforce the Voting Rights Act. This was a cynical and disingenuous pretext. There was a significant mismatch between the decision the Secretary made and the rationale provided.

The government claimed that Commerce was acting on a routine data request from another agency. Unlike a typical case in which an agency might have both stated and unstated reasons for a decision. In this case the Voting Rights rationale seemed to the majority to have been contrived. The Trump Administration wasn’t acting to protect the voting rights of minorities. It was seeking to intimidate and discourage noncitizen households from responding to Census questionnaires.

Reasoned decision making under the Administrative Procedure Act requires an explanation for agency’s action. The justification the government offered lacked credibility. What was provided in this case was more of a dishonest “distraction” than a legitimate explanation. The case was remanded for further proceedings consistent with Court’s opinion.

[1] Leland Ware, University of Delaware. Professor Ware’s book, “A Century of Segregation: Race, Class and Disadvantage” can be purchased from Amazon and other on-line outlets.

Sunday, June 30, 2019

Supreme Court Decines to Rule on Racial Gerrymandering Case from Virginia

On June 17, 2019, the Supreme Court issued a decision in Virginia House of Delegates v. Bethune-Hill. The events leading up to the case began in 2011 when Virginia redrew legislative districts for the State’s Senate and House of Delegates. Voters in 12 of the impacted House districts sued charging that the redrawn districts were racially gerrymandered in violation of Equal Protection Clause of the Fourteenth Amendment. Gerrymandering occurs when a legislature divides a geographic area into political units in a manner that disadvantages African American or Latino/as voters.

Virginia’s House of Delegates intervened as a party to the case arguing the constitutional validity of the challenged districts. After a trial a three-judge panel ruled that race was not a predominant factor in the creation of eleven of the districts. The panel also held that race was a predominant factor for the boundaries of the remaining district, District 75, but the legislature did not violate the Equal Protection Clause because the legislature's use of race was narrowly tailored to achieving a compelling state interest.

When the case was appealed the Supreme Court held that the district court applied an incorrect legal standard when it determined that race did not predominate in the redistricting. The case was remanded to the district court for further proceedings. After a second trial, a three-judge court, held 2 to 1, that in 11 of the districts the State had unconstitutionally sorted voters based on their race. The court enjoined Virginia from conducting any elections until a new redistricting plan was adopted. A new map was eventually drawn with the help of a court-appointed expert

A few weeks after the entry of the trial court’s decision, Virginia’s Attorney General announced that the State would not pursue an appeal to the Supreme Court. Virginia’s House filed its own appeal. The Supreme Court did not address the merits of the Gerrymandering claim. It held instead that Virginia’s House lacked standing to represent State. The elements of standing are: a discrete and particularized injury that is fairly traceable to the challenged conduct and is likely to be redressed by a favorable decision.  In this case a Virginia law gave the Attorney General with exclusive authority to speak for the Commonwealth in civil litigation.

Justice Ruth Bader Ginsburg wrote for the majority an opinion that was joined by Justices Clarence Thomas, Sonia Sotomayor, Elena Kagan and Neil Gorsuch. Justice Samuel Alito dissented in an opinion that was joined by Chief Justice John Roberts and Justices Stephen Breyer and Brett Kavanaugh. The decision means that the State’s election in November will likely go forward using the new map.

[1] Leland Ware, Louis L. Redding Professor of Law & Public Policy, University of Delaware