Sheila Suess Kennedy: Can partisans game the system? We’re about to find out

kennedy-sheila-takingissue-2018Gerrymandering—the process whereby legislators choose their voters in order to ensure that the voters don’t get to choose their legislators—takes a variety of forms.

Prison gerrymandering, for example, occurs when the census counts offenders as residents of the towns where they’re imprisoned, even though they can’t vote while in prison and most return to their homes after release. The United States has an enormous prison population, so counting prisoners in the wrong place undermines the Constitution’s requirement that political power be apportioned on the basis of population. You can’t draw fair districts when the underlying data is flawed.

Which brings us to the critical importance of the census.

The Supreme Court recently heard oral arguments in an appeal of a lower-court decision forbidding the addition of a citizenship question to the upcoming census. Evidently, the five conservative judges telegraphed their willingness to reverse the lower court (one of three separate decisions, all of which found the question and the manner of its addition illegal).

If they do, it will be a nakedly political decision and will further undermine what is left of the Supreme Court’s legitimacy.

Why do I say that?

The census is supposed to count “heads”—the number of people in a given area. There is no use of census data that requires knowing how many of those residents are citizens. (Secretary of Commerce Wilbur Ross’ lame justification was that this information would protect the voting rights of African-Americans. There’s no logical nexus between that goal and the census, and this administration hasn’t exactly been solicitous of the rights of minority populations.)

The reason this administration wants to add the question is that it will hurt Democratic cities and states and benefit Republican ones.

Experts, including several who previously headed the Census Bureau, argue that a citizenship question would significantly reduce the response rate of immigrants, both legal and illegal. Because 2021 redistricting will be based on the resulting undercounts, it will reduce the political power of states with large numbers of immigrants, most of which lean Democratic.

The census is also the basis upon which federal monies are distributed to cities and states. Guess which cities and states would get more and which less?

The three federal judges who considered the issue have all ruled that Ross failed to follow the legal procedures governing the addition of a question to the census. In one of those decisions—a 277-page enumeration of the flaws in Ross’ attempt to subvert the accuracy of the count—the judge found that addition of the citizenship question was unlawful because of “a veritable smorgasbord of classic, clear-cut” violations of the Administrative Procedure Act by Ross, including cherry-picking evidence to support his effort.

“To conclude otherwise and let Secretary Ross’s decision stand would undermine the proposition—central to the rule of law—that ours is a ‘government of laws, and not of men,’” the judge wrote, quoting John Adams.

Two pending cases in this year’s Supreme Court term will go a long way toward affirming or destroying the rule of law: the combined partisan gerrymandering cases from Maryland and North Carolina, and the census case.

The fundamental issue in both cases is whether America will insist on fair elections, or whether partisans will be allowed to continue gaming the system.•


Kennedy is a professor of law and public policy at the Paul H. O’Neill School of Public and Environmental Affairs at IUPUI.

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