Today, Explained - Supreme Count

Episode Date: June 27, 2019

The Supreme Court dropped two doozies today. NPR’s Hansi Lo Wang details a ruling on the 2020 census before Vox’s Andrew Prokop explains how the Court finally weighed in on partisan gerrymandering. Learn more about your ad choices. Visit podcastchoices.com/adchoices

This particular episode of Today Explained is brought to you by KiwiCo. KiwiCo projects are designed to spark creativity in children of all ages. And right now, Today Explained listeners get to try them out for free when you visit KiwiCo.com slash explained. Hansi Lowong, national correspondent at NPR. On the precipice of the Supreme Court's last day before summer vacation, we got two big rulings for how we count people and structure maps. Let's talk about the people. The Supreme Court finally issued a ruling in the census citizenship question this morning. What happened?

A majority of the Supreme Court ruled that for now they're going to leave the citizenship question blocked from being added to the 2020 census forms. And what was their reasoning? Well, the majority opinion, this is written by Chief Justice John Roberts. He wrote that essentially the Trump administration's reasoning for wanting to add the question, is this person a citizen of the United States to the 2020 census forms? That reasoning, which was to better protect the voting rights of racial and language minorities, that reasoning the court found was, quote, contrived. And the majority said that it, cannot ignore the disconnect between the decision made and the explanation given for the question

by the Trump administration. So it's not an all out rejection of the citizenship question? No, the majority of the courts ruled it is essentially still within the authority of the Commerce Department, which oversees the Census Bureau, to add this question. But the reasoning to better enforce the Voting Rights Act, that reasoning they are skeptical of. You know, another interesting word that was used was this was a distraction, Chief Justice John Roberts wrote. So it leaves the door open for a better reason then? Right. Technically, what the Supreme Court did today was send this issue essentially back in the Commerce Department's court. And they can explain what is a reasoning for this that would maybe pass muster with the justices and the courts.

Hansi, since the last time we spoke, some incendiary stuff about this citizenship question has come out, yeah? Well, this is what the plaintiffs are arguing. Hard drives have surfaced from a major Republican redistricting strategist. His name was Thomas Hoffler. He died last year in August. And his estranged daughter found his hard drives and realized that these documents could be fairly significant, knowing what role her father played in drawing voting districts around the country on behalf of Republican groups. This guy whose computer

this was found on did apparently have some influence on the president's thinking about this. Of course, redistricting is democracy at work. Redistricting is like an election in reverse. Usually the voters get to pick the politicians. In redistricting, the politicians get to pick the voters. His estranged daughter, she ultimately turned those hard drives over to a group that was connected with a law firm that just so happened to be representing one of the citizenship question plaintiff groups, they looked through these files and came across this study

that Thomas Hoffler was commissioned to do, an unpublished study from 2015, in which he concluded that adding a citizenship question to census forms would produce the data necessary in order to redraw voting districts that are advantageous, quote, to Republicans and non-Hispanic whites. These are the words of Thomas Hoffler. And the plaintiffs also found another document from Thomas Hoffler's hard drives, in which there's a paragraph that puts forth an argument to justify adding a citizenship question by using the Voting Rights Act. And that same paragraph, word for word, shows up in one of the documents the Trump administration turned over as part of the lawsuits to show all the documents it considered before Commerce Secretary Wilbur Ross approved adding this question.

And so the plaintiffs are arguing that this shows a connection between Thomas Hoffler's ideas and shows a role that he played in the Trump administration's push for this question, not for a Voting Rights Act, but instead to give Republicans and non-Hispanic white people a political advantage when new voting districts are drawn after the 2020 census. Did the Hofler revelations play a role in the case? This was really late breaking information. And it came weeks before the Supreme Court issued its ruling today. And there was a big question of how this might influence the justices.

And it's interesting, the opinions that were released today do not mention Thomas Hofler. But a federal judge in New York could possibly issue penalties against Trump administration officials, including a former advisor to Commerce Secretary Wilbur Ross. What drama. What's next for the poor census? I think the big question for me is, will the Census Bureau send over files to the printing contractor so that it can start printing on July 1st as scheduled, as is currently budgeted for. The printer has been waiting to figure out which version of the census forms, the paper forms to print, one with the citizenship question, one without the citizenship question.

I've checked in with the Census Bureau. They've released a written statement saying they're still reviewing the Supreme Court's decision. And so we're days away from what the Census Bureau says is a deadline. And I'm watching for that. What happens if that July 1st deadline is missed? Well, July 1st is when it's all scheduled and budgeted for to start the printing of 1.5 billion pieces of paper. These are paper forms, letters, envelopes, postcards that have to go out to just about every household in the country. This is a big job. Any extra pressure on the printing contractor to get that done on time and accurately and ready to go, that really risks possibly jeopardizing the last stages of the preparations for the 2020 census, which is just a few months away.

It starts officially in January in rural Alaska. In these final months, the Census Bureau really needs to have some finality to know whether or not this question is on it, because it's continuing to hire workers for the 2020 census. They need to be trained and need to know how to talk about the 2020 census. Also, they're gearing up for an advertising campaign and for local outreach. And those people need to know how to talk about the 2020 census and whether or not there's a citizenship question on there. I wonder, you know, the president tweeted after the decision dropped, quote, seems totally ridiculous that our government and indeed country cannot ask a basic question of citizenship. And then continued, I have asked 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.

He seems dead set on having the citizenship data. Could he find another way to get it if the citizenship question doesn't work out? I think it's important first to point out that there already is citizenship information that the government has. And that is from the what is known as American Community Survey. And if there is ultimately no citizenship question on the 2020 census forms, there is essentially a plan B waiting in the wings. Commerce Secretary Wilbur Ross approved not only adding a citizenship question to the forms, he also approved the compiling of existing government records on citizenship from various federal agencies by the Census Bureau. And Census Bureau recently said at a public meeting, an official recently said that they are prepared to release that detailed citizenship data from every household

in the country. And they're waiting for guidance from the Commerce Secretary to figure out if he wants that to be done. So there is a source for citizenship data, whether the question is asked or not. And there is an instruction to produce block-level citizen voting age population that has not been rescinded. These are records that the Bureau said would be more accurate and less expensive than adding a citizenship question onto the 2020 census. And this is also the kind of citizenship data that would be necessary to do what Thomas Hoffler outlined in his memos, to draw districts that would benefit Republicans and non-Hispanic white people. You would then be able to have the data necessary to draw political districts that would essentially be beneficial to the Republican Party.

Turns out you don't need a new citizenship question to draw voting districts beneficial to the Republican Party. The Republicans are already doing that. And today the Supreme Court weighed in on that, too. That's coming after a message from our sponsor. Hi. Hello, is this Desmond? Yes, it is. Hey, Desmond, this is Sean from Vox. How are you?

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Thank you. I'll try. Andrew Prokop, senior correspondent, Vox. In addition to the census decision, the court today weighed in on voting districts. Our old friend gerrymandering. It was kind of a one-two punch. What did the conservative majority say in this 5-4 decision? Chief Justice Roberts wrote that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Basically, he's saying that federal courts cannot step in to block or throw out a map that is arguably very gerrymandered on partisan grounds to benefit a particular party. Was the court looking at specific cases of partisan gerrymandering here?

And what did they look like if so? There were two specific maps before the court. One is in North Carolina. It is a kind of unique case because when drawing this map just a few years ago, the North Carolina Republicans outright admitted

that they were drawing 10 districts to benefit Republicans and three to benefit Democrats. And the argument here is that this is whack because Democrats and Republicans are essentially getting the same number of votes.

But instead of the same number of seats, you get 10 Republicans, three Democrats. Yeah, North Carolina is essentially a swing state. They have a Democratic governor right now. It's pretty closely divided. But the congressional districts are so gerrymandered that, you know, it's a 10 to 3 advantage, which is a huge Republican advantage in the delegation. And the districts are drawn in such a way to make it very difficult. Basically, all of the Democratic voters, almost all of them, are just packed into just these three districts out of 13 in the state. And this decision by the Supreme Court on North Carolina was paired with another one in Maryland.

And that is about a Democrat-drawn gerrymander. Because both parties do this. Yes, yes, both parties do this. Republicans have had more opportunity to do this just because they did so well in elections before the last redistricting. But Maryland is a big example of Democrats doing it too. The state has eight districts and so many Republicans were just packed into just one district, the first district. So since then, there have been seven Democratic-controlled districts in Maryland and one Republican-controlled. So is the conservative majority saying that these kinds of maps are OK, that it's OK for partisan mapmakers to draw political maps that guarantee their party wins?

Arguably, yes. From their perspective, they are saying that this is not an area where the federal courts should step in. That was Roberts' position. He wrote, we, the Supreme Court, have never struck down a partisan gerrymander as unconstitutional. He was making the point that this would be a new thing for the Supreme Court to decide to do. States can draw their maps on whatever partisan grounds they want and we are not going to step in and do anything about it. And lower federal court judges can't either. So is that to say that Roberts isn't necessarily saying, this is okay, that this is how our system works, but he is saying, not sure if the court should be getting involved. Yeah, he wrote,

excessive partisanship in districting leads to results that reasonably seem unjust. So he's, you know, acknowledging, I feel your pain. But then he says, that does not mean that the solution lies with the federal judiciary. So not our job, essentially. What do the four dissenting judges say? So Kagan wrote a pretty fiery dissent. She said that partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights, the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside down the core American idea that all governmental power derives from the people.

So she was displeased. The four liberals have, for several years now, it's looked like they have wanted to set a big new sweeping standard that in cases of extreme partisan gerrymandering, it is the role of the federal courts to step in and prevent what they saw as people's rights from being taken away by these partisan majorities in state legislatures. There are different kinds of gerrymandering. There's racial gerrymandering.

There's partisan gerrymandering. There's good gerrymandering that can secure a voting block for a particular group. There's bad gerrymandering that can seek to take away a particular group's voting power. Did the majority weigh in on all these different kinds or was this decision today just about partisan gerrymandering? Yes, this was about the specific question of partisan gerrymandering, drawing the lines to benefit a party. Before this, for decades, federal courts, there's been a lot of precedent that they can strike down maps designed to dilute the voting power of racial minorities. So racial gerrymandering is not addressed by this decision at all.

Also, there's a lot of precedent that maps have to abide by the one person, one vote principle. But it's difficult because the Constitution gives the power to draw these boundaries to state legislatures. And what Roberts says that the courts have always been lacking is a clear standard for when they should step in, a clear test. And the retirement of Anthony Kennedy last year may be a big reason for this decision, because Kennedy was a little squishy on gerrymandering. He was not with the liberals, but he was not totally with the conservatives either. He was leaving open the possibility that at a later date, there could be some test for partisan gerrymandering that would allow the courts to step in. But now he's gone

and replaced by Brett Kavanaugh, who is more clearly in the conservative camp on this. So does that mean that states basically have the green light to go nuts when they're drawing these maps? It definitely gives state legislatures a freer hand to kind of draw their boundaries, how they see fit when it comes to partisanship. So what that means is heading into these 2020 elections across the country, since the maps were last redrawn after big Republican wins across the board during Obama's presidency in the 2010 census, Republicans remain with a huge advantage after the Supreme Court decision. Yeah, I would say that a lot of it is set in stone at this point. And it does look like Republicans will continue to have a lot of opportunities to redistrict in their party's favor. Andrew Prokop rocks politics at Vox. I'm Sean Ramos for him.

This is Today Explained. Irene Noguchi is the show's executive producer. Afim Shapiro is the show's engineer. Noam Hassenfeld, Bridget McCarthy, Halima Shah, and Amina Alsadi produced the show. Alex Pena and Will Reed interned the show. And Jared Paul is going to help out tomorrow. The Mysterious Breakmaster Cylinder is our silent partner. Today Explained is produced in association with Stitcher

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