Just before closing for summer recess, the Supreme Court of the United States (SCOTUS) issued two related decisions, both with crucial implications for the business of democracy. The first was a decision about whether the 2020 U.S. Census should ask respondents if they are U.S. citizens. The second was on partisan gerrymandering — the drawing of electoral district lines in order to manipulate voting outcomes in favour of a particular party. In the first case, the court had, for all practical purposes, stopped the citizenship question for now and in the second, the court kicked the debate back down to the State level.
The census question was examined in these columns in January. Plaintiffs, which included sub-national governments, city Mayors and NGOs, argued that including such a question would deter minorities and migrants — legal and undocumented — from participating in the census. This would create problems around the number of seats in the U.S. House of Representatives, which shall, as per the U.S. Constitution, be apportioned according to the number of whole persons in the State. This, in turn, determines the number of seats in the Electoral College and also drives the apportioning of some $800 billion in federal funding.
The Supreme Court ruled 5-4 to (partly) uphold a lower court decision that said the Commerce Department’s proposed inclusion of the question in the 2020 Census violated the law. The lower court had found that Commerce Secretary Wilbur Ross’s stated reason to include the question — to help enforce the Voting Rights Act (a law to prevent state and local government from passing laws that deny the equal right to vote across race and language groups) — was not the actual reason for including the question.
Credible reason
Mr. Ross had said he added the question to the form “solely” in response to a Department of Justice (DoJ) request from 2017 but lower court judges had found the evidence showed otherwise and that Mr. Ross’s intention to add the question pre-dated the DoJ request. The evidence showed, among other things, that Mr. Ross had discussed the citizenship question with Alt Right guru and former White House adviser Steve Bannon well before the DoJ request.
Now the Supreme Court has agreed that Mr. Ross’s stated reason for including the question did not pass muster and was contrived. However, it did not altogether block the question from being asked — Mr. Ross will now have to come up with a credible reason if he wants to include the question. With a July 1 printing deadline, it seemed impossible that the question would be included in the 2020 Census. However, President Donald Trump said on Monday that he is “very strongly” looking at delaying the census, due to begin in January. A group of 17 lawmakers wrote to Mr. Ross on Tuesday, saying only Congress had the authority to delay the Census and that they found the delay “extremely troubling”. They had requested Mr. Ross to publish the forms on or before July 4. The DoJ, which had dropped plans to include the question after the verdict, did an about-turn on July 3, saying it would try and get the question included. Mr. Trump tweeted on Wednesday that the administration was “absolutely moving forward” with plans to include the question.
Once the 2020 Census is completed, the decennial process of redistricting begins — drawing lines that shape voting constituencies for the House of Representatives and State legislatures.
Enter SCOTUS’s second major decision before its summer break. The court ruled, 5-4, in one case that involved Republicans drawing lines and in another on Democrats drawing lines, that federal courts cannot interfere in the process. This means it will be up to States, politicians and their electorates to sort it out. However, given how well Republicans had done in previous elections, the June 25 ruling is likely a big victory for them. The partisan gerrymandering process will now have to be improved upon, if voters choose to do that, at the State level.
With the Supreme Court having closed for the summer after making these momentous decisions, it will be up to others in Washington and in State capitals to face the rising temperatures of partisan politics.
Sriram Lakshman is The Hindu’s Washington correspondent.
