The NPR Politics Podcast - Supreme Court Leaves Citizenship Question Blocked; Allows Partisan Gerrymandering

Episode Date: June 27, 2019

President Trump says he is looking into delaying the 2020 census, hours after the Supreme Court decided to keep a question about citizenship off the form to be used for the head count. Plus, the Supreme Court ruled that partisan redistricting is a political question — not reviewable by federal courts. This episode: White House correspondent Tamara Keith, political editor Domenico Montanaro, political reporter Miles Parks, and reporter Hansi Lo Wang. Email the show at [e-mail]. Find and support your local public radio station at npr.org/stations.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hi, this is Victoria, and I'm in a hotel room in Louisville after watching the first night of the Democratic debates. My husband of two weeks and I just spent the last two hours on the phone so we could watch them together while I'm away for work. This podcast was recorded at 1.36 p.m. on Thursday, the 27th of June. Things may have changed by the time you hear this, but I'll still be married to someone awesome enough to send me Scott Detro tweets about John Hickenlooper. Enjoy the show. That is pretty awesome. That was super sweet. And also makes me think that this is our second podcast of the day. Go back and listen to the old one about the debates. Hey there, it's the NPR Politics Podcast. I'm Tamara Keith. I cover the White House.

And I'm Domenico Montanaro, political editor. And we've got a special guest today, NPR's Hansi Lo Wong. Hey, Hansi. Hey, Tam. And if you are here, that means that we are talking about the census. That's right. Here we go. So it was the last decision day of this term for the U.S. Supreme Court. And today, the high court handed down two major decisions that we've been waiting for and following, one about the census and one about partisan gerrymandering. Domenico, you are the NPR editor who edits all of our Supreme Court coverage. What did the court decide today as relates to the census? Well, the court essentially blocked the citizenship question from coming up in 2020, which the Trump administration

wanted to do. And they did this. The reasoning for it was because of all these explanations and how they've changed over time. And Chief Justice John Roberts wrote the majority opinion and wasn't having it. Breaking news. Trump just tweeted, I have asked the lawyers to delay the census. He says, quote, seems totally ridiculous that our government and indeed country cannot ask a basic question of citizenship in a very expensive, detailed and important census. In this case for 2020, he says, I have asked the lawyers if they can delay the census no matter how long until the United States Supreme Court is given additional information from which it can make a final and decisive decision on this very critical matter, can anyone really believe that as a great country we are not able to ask whether or not someone is a citizen only in America? Unquote. Wow.

Exclamation point. Unquote. I mean, delay the census. Like, what does that even mean? I mean, you know how many people have to be hired up the length of time that it takes to go and conduct the census, to go door to door. This isn't like delaying a poll or survey a week or two. There's a whole host of things that go into this that is really fascinating and stunning that the president, without any more information, is going to say that potentially you're going to put off the census. Something required to be done every 10 years by the Constitution. Well, and Hansi, in fact, there was sort of a rush to get this decision.

I mean, the timing was that they needed to do it anyway. But there's a real deadline here, a July 1st deadline, right? The Census Bureau has said July 1st is when the printing of 1.5 billion paper forms, letters, mailings has to start by, because that is what it's currently budgeted for. The Census Bureau, although, has said that officially that date could be pushed back to October 31st with exceptional resources, additional resources. I've been trying to figure out exactly what that means. The Bureau has not spoken about that because it's been under the assumption that July 1st was the start date for printing. You know, it's really fascinating to me that if he's going to say that potentially we could move this off, let's say even to October, right? All for

one question that really is about Hispanics in this country and how many are in this country, whether legally or illegally, that it's so important to him foundationally, politically, to say, we need to know who's a citizen in this country. Think about what he's running on for reelection and what he ran on in 2015. It was all about immigration. This is a huge base play once again. Well, let's go to this citizenship question thing. What the president wants is, in addition to asking how many people live in the House, what their race and gender is, among other things, he wants a question that asks, are you a citizen of the United States of America? And is this something that has not

been asked in the past? Why is this so controversial? In short, it's complicated. There have been questions on census forms about citizenship status going back 1820, but it's been on and off over the years. And it's been asked only of certain parts of the country for a long time. Only of folks born outside of the U.S. was citizenship status asked about. And so I think the thing to keep in mind here is that 1950 was the last time a citizenship question was included among the census questions for every household in the country. But back in 1950, not every person's citizenship status

was asked for. It was only asked for of people born outside of the U.S. And so what I figured out by looking through all these census records and looking through this history is that if this citizenship question ends up on the 2020 census form, it would be the first time the federal government has used the census to directly ask about citizenship status of every person living in every household in the country. And this is information that actually the Census Bureau says, if you really wanted to know that, if you really wanted to know this detailed citizenship data of every household in the country, adding a citizenship

question is not the way to do it. It produces data that is less accurate and more expensive than compiling existing government records about citizenship status. Well, I mean, one of the things the Census Bureau even warned about was a severe undercount of the number of people in this country overall. And, you know, what this comes down to is Latinos. Right. And, you know, that is a major potential political blockbuster if they were to do that. And that could lead to all kinds of reductions of power, you know, and services, you know, power for Democrats, services for these communities. And that was a big thing that they warned about. And the reasoning through all of this has changed.

There have been things that just blatantly were found to be false on the original reasoning that were sent to the Supreme Court. And Chief Justice John Roberts today joined the liberals on the court with his decision to make it 5-4, and he wrote the majority opinion. And one of the things he said was essentially that when you create administrative law, when you create these things, there has to be a, quote, reasoned explanation, reasoned explanation requirement. He said it's meant to ensure that agencies offer genuine justifications for important decisions. He said they have to be reasons that can be scrutinized not only by courts, but the interested public. And he said accepting contrived reasons would defeat the purpose of this enterprise. And he delivered a searing line after that and said, our review is deferential, but we are not required to exhibit a naivete from which ordinary citizens are free. What the Supreme Court did today essentially leaves a block on the citizenship question from being added to the 2020 census. Three federal judges around the country have blocked this question from being added. The Supreme Court did not move those blocks, but it said that it believes that the Commerce Department should be given an opportunity to give a better reason for adding the citizenship question. And if it said that it believes that the Commerce Department should be given an opportunity to

give a better reason for adding the citizenship question. And if it does that, that might reopen the citizenship question. We don't know. We'll see. I reached out to the Justice Department, which is representing the Trump administration in all these different lawsuits. And a spokesperson said in a written statement that we are disappointed by the Supreme Court's decision today. The Department of Justice will continue to defend the administration's lawful exercises of executive power. And so I'm watching to see where this legal battle goes. It's already been very complicated. I wouldn't be surprised to see additional twists and surprises in the coming hours and days.

The reality is that these kinds of cases take time. And unless the census is delayed, it's unlikely they have enough time again to change all this, to come back to the court, to have a new rationale when the paper trail has been there from the beginning of this. And that's what they've been arguing about basically already to this point. And what you have to wonder is whether or not this was some kind of a negotiation to get John Roberts's vote to be able to say, OK, we'll push this back to the lower courts. We'll give the agency a chance to come up with a new rationale. Just timing wise, unless the census literally is delayed, which the president is threatening, it's really hard for this to come back in a way that you see the Trump

administration winning. OK, Hansi, you keep watching this. We will all be watching your reporting. We are going to take a quick break. And when we get back, a major decision about political gerrymandering. There's more to watch and read these days than any one person can get to. That's why we make Pop Culture Happy Hour from NPR. Twice a week, we sort through the nonsense, share reactions, and give you the lowdown on what's worth your precious time. Listen and subscribe to NPR's Pop Culture Happy Hour. And we're back, and now we've got Miles Parks with us.

Hey, Miles. Hi there. You cover elections for the NPR politics team, and the Supreme Court weighed in on something that relates to a lot of elections and also relates back to the U.S. census. You know the ins and outs of voting better than anyone. What did the court decide today in what were two cases dealing with partisan gerrymandering? So the court basically decided that they're not going to rule in this space. They're going to let the politicians duke it out on how districts should

be drawn. The two cases we were looking at here today, there was one out of North Carolina and one out of Maryland. In North Carolina, the Republican legislature had drawn districts that basically gave Republicans a 10 to 3 advantage in House seats, despite that state being right around 50-50 when it comes to Democrats and Republicans. In Maryland, it was the opposite. Democrats control the government there, and they drew maps after the 2010 election that basically ousted a longtime incumbent Republican by moving about 300,000 Democratic voters into his district

when maps were drawn. What's interesting about both these cases is there's no question on intent. In both the cases, lawmakers in Maryland and in North Carolina made it very clear that the reasons they were drawing the maps this way were to give their party an advantage. All right, let's go back to the whole concept of gerrymandering and drawing district lines in partisan ways. So every 10 years, as we just discussed with Hansi, there is a census, and the American people are counted. And then it goes back to the states once those numbers are in, and state legislatures are in some places commissions. But there are decisions made about how to draw congressional and legislative maps, how to draw there is a majority control in the state by a single party, then that party rules and they this case has been able to come before the court and they're actually able to kind of kind of make a decision because they basically said this is beyond the reach of federal courts, is that this all comes back to Justice Anthony Kennedy.

Kennedy, who retired last year, had seemed open to getting rid of political redistricting or gerrymandering. He thought that it was a problem. But what he felt was that there wasn't a, quote, manageable standard, that they needed some way to measure what is extreme partisan gerrymandering and what's within the basic reasonable limits of what the Constitution allows for a state legislature to go and do. They never quite came up with a manageable standard. Some of the people who brought the arguments before the court had all kinds of ways to come up with standards.

I mean, think about how much we do with computers now to figure out whether or not a state should be drawn one way or another. It didn't seem to ring true for Justice Kavanaugh, who is the newest member of the court. And they push this back. So Kavanaugh replaced Kennedy and Kavanaugh sort of had a different view on this or wasn't searching for an excuse to get involved, for the federal court to get involved in this. That's right. He proved not to be the swing vote at the very least in this in the way that the man that he once clerked for was. OK, so what are the immediate consequences of this decision? What happens now? Everything stays the same. I mean, you know, when you have people in this country

complaining that, you know, mostly Democrats right now complaining that you have a state where it might have been 50-50 or, you know, Republicans by a little bit or Democrats by a little, you'll have a place like North Carolina where it's a 10-3 split, right? That doesn't seem equitable or fair, but that's the way it's been drawn because one party controls the legislature there. Well, and Roberts, in writing that the court didn't want to get involved in this space, was not arguing that partisan gerrymandering is like a good thing. Right. He said specifically that the practice, you know, reasonably seems unjust.

He just didn't think it was the court's job to jump into the space. we're going to see a bunch of lower courts that had thrown out maps in Ohio, in Wisconsin, that were kind of looking to the Supreme Court decision to see what was going to happen ahead of 2020. All of those cases get thrown out. Federal courts are not going to have a say when it comes to gerrymandering. And then even beyond that, when you think about the maps after the 2020 election that are going to be drawn, basically, the Supreme Court had been threatening to get into this space. So the maps we had in 2010 were kind of drawn with this eye on, well, we can't make them too extreme because the Supreme Court, as Domenico mentioned, Kennedy had said, we might get into this space. Now that warning is gone. They said

they don't want to have any part in this. So you can see how extreme those maps could theoretically be after 2020. So I want to make two points, one legal and one political. And first of all, when you look at the legal, Chief Justice John Roberts, who we mentioned, wrote this opinion. We're talking about the, quote, manageable standard and trying to find one. Roberts said that federal judges have no license to reallocate political power between the two major political parties. And he said, quote, no plausible grant of authority in the Constitution and no legal

standards to limit and direct their decisions. So there's no standard is essentially what he's saying there. OK, the political point I want to make is that even though Democrats will say, oh, this is so bad for democracy, quote unquote, in their view, you can guarantee that because Democrats have now taken over in states where they had felt like they were victims of this previously, that they're going to turn the screws as much as they possibly can. Well, and I just want to I talked to Justin Leavitt about this. He's an election law professor at Loyola Law School. And here's what he told me about the future of gerrymandering in places where there is that sort of unilateral

control, whether it's Republican or whether it's Democrat. We're in Mad Max territory now. There are no rules. And I do think you'll see more legislators in more states taking up the mantle of extreme partisan aggression against people who disagree with them. The other thing to remember is that just because the legal battle at the federal level is over, there is going to be a huge push for lawsuits at the state level, because there are still states where partisan gerrymandering does violate the state constitution. So there's a legal route that way. And in his opinion, Roberts also talked about the legislative solution. There's the idea of citizen initiatives

that in about half the states, you can basically push, the citizens can basically push a law to get passed where they could make redistricting by independent commission. And Roberts also mentioned that Congress has written up a number of bills that would take redistricting out of the hands of partisans and put it into these sorts of commissions. It's worth noting the U.S. is the only civilized Western country that does it this way. So, you know, there's a lot of things that we only do exceptionalism. Right. It's normal. It's normal because we've been talking about this for literally hundreds of years. Who else has electoral college?

Yeah, exactly. But we've been talking about it for hundreds of years, so I think we do get a little bit normalized on it. But it is not the way that elections are done everywhere. All right. That is a wrap for this pod. We will be back later tonight or maybe very early tomorrow morning with a recap of the second night of the first Democratic presidential debates. If you check out your feed, you'll see a pod from earlier that breaks down last night's debate and prepares you for what is coming tonight. I'm Tamara Keith. I cover the White House. I'm Domenico Montanaro,

political editor. And I'm Miles Parks. I cover voting. And thank you for listening to the NPR Politics Podcast.