A progressive take on states’ rights can come to the rescue.
Progressives have long looked to federal courts to guard the rights of racial minorities and dissenters. But that protection is weakening. Faced with the enormous injustice of partisan gerrymandering, the Supreme Court last month permitted politicians drawing election district maps to discriminate by party and even potentially mask their racial “packing” and “cracking” as mere partisanship. To fill this growing gap, reformers should take an unexpected route: states’ rights.
Chief Justice John Roberts wrote an opinion that allowed two gerrymanders, one committed by Republicans in North Carolina and one by Democrats in Maryland, to stand. His reason? He could not find a standard to judge when an offense had occurred. He rejected a considerable body of empirical research, including suggestions by my colleagues and me in an amicus brief.
Federalism, in which regional governments retain considerable power, has been invoked in the past to take away representational rights. But a local approach, properly applied, can also restore them. In a stinging dissent, Justice Elena Kagan pointed out that where the Supreme Court had failed to define and regulate partisan gerrymandering, four lower federal courts had succeeded.
State courts can do so, too — without federal approval. The elections clause of the Constitution gives states broad authority over redistricting as long as the actions do not run afoul of federal law. Chief Justice Roberts conceded that states can act on their own by “actively addressing the issue through state constitutional amendments and legislation.” Now that Republicans and their designates control the Supreme Court, the Senate and the presidency, reformers should embrace what Heather K. Gerken, the dean of Yale Law School, calls “progressive federalism.”
The Princeton Gerrymandering Project, which I founded, has investigated federalist approaches to redistricting reform. We found 27 instances in which a district map was overturned on the basis of state law. Recently, Pennsylvania’s Supreme Court overturned an unfair congressional map, citing the state Constitution’s free and equal elections clause, a phrase that is also found in 27 other state Constitutions.
And 47 Constitutions prohibit government discrimination based on political viewpoint, a principle also found in the First Amendment, which Justice Kagan has argued should protect partisan voters. Drawing a district’s boundaries to dilute a voter’s influence violates the principle of equal protection under the law as found in the 14th Amendment — and in 24 state Constitutions.
The use of federalism to protect voter rights will be tested in a trial this month in North Carolina, where General Assembly districts are being challenged as a partisan gerrymander. Since North Carolina law does not require the governor’s approval for maps, state court may be voters’ best and last chance at fair districts there.
Proving the case should be straightforward. Computer simulations can quickly explore thousands of alternatives to determine whether a map is an extreme partisan outlier. For example, in the Supreme Court case, which concerned a congressional map, Jonathan Mattingly, an expert witness, demonstrated that one congressional districting plan was more extreme than more than 99 percent of over 24,000 possible alternatives that honor city and county boundaries. Simpler mathematical formulas, which detect inequities of opportunity and outcome, can also help diagnose astate legislative map as extreme.
These technologies will soon be within reach of nearly everyone. Thomas Hofeller, a redistricting expert who died recently, drew North Carolina’s gerrymander. He was a Picasso of partisan maps. But thanks to data-sharing projects like OpenPrecincts and the Public Mapping Project, as well as free software like Dave’s Redistricting and PlanScore, citizens in every state will be able to draw their own maps — and expose partisan malfeasance the moment it emerges.
Federalism can also be imposed by voters directly. In 2018, redistricting reform initiatives passed in Colorado, Michigan, Missouri and Utah. These reforms earned 8 to 19 percentage points more support than the Democratic vote share in statewide races, showing that reform has bipartisan support.
The Colorado and Michigan initiatives establish independent redistricting commissions, in which passing a plan requires votes from independents or members of both parties. The political scientist Alex Keena and collaborators have shown that independently drawn maps are more balanced than maps drawn by either party alone. These commissions can also ensure representation for racial minorities and other communities. Citizens can change the law in the 24 states that allow voter-initiated ballot measures, and local reformers are now working to qualify such a measure for the ballot in Arkansas.
The spoils from gerrymandering are enormous. After a wave election in 2010 favoring Republicans, Republican-drawn gerrymanders in 10 states tilted the balance of power in Congress by nearly 20 seats, a modern high, and took hundreds of legislative seats out of contention.
With increased local power in the redistricting cycle of 2021, Democrats may be tempted to play tit-for-tat, imposing their own gerrymanders. But a proposed constitutional amendment that would have insulated Democrats from voters failed in New Jersey, in part because of popular anger. Rather than reducing electoral competition further, Democrats should seek representational balance by taking the high road of reform. They would be in step with over 70 percent of Americans who agree that gerrymandering should be curbed.
In states without the initiative process, legislators themselves will occasionally agree to give up power. The New Hampshire legislature has sent a reform bill to Gov. Chris Sununu. The Virginia legislature is considering a constitutional amendment for the 2020 ballot, though perhaps not entirely out of altruism: The current Republican majority may lose seats and fall victim to a future Democratic gerrymander.
A final route to reform uses the governor’s veto to check legislatures. Maryland has a Republican governor, counterbalancing the Democratic legislature. Wisconsin, site of one of the most extreme Republican gerrymanders in the nation, now has a Democratic governor. Depending on three competitive governors’ races this November, bipartisan control may spread to Kentucky, Louisiana and Mississippi.
Putting all federalist routes together — courts, voter initiatives, laws and elections — I estimate that reform is actually possible in the vast majority of states, even without the Supreme Court’s help.
In biological systems, my other area of expertise, self-correction prevents living systems from going off-kilter. If we don’t sweat, we overheat. When cells disregard the boundaries of the organ where they belong, the result is cancer. So too in democracy: Without a mechanism to ensure fair districts, a political party can ensconce itself in power indefinitely. By introducing self-correction mechanisms, we can reverse the erosion of faith in democracy that comes from gerrymandering.
The decision in the census case suggests President Trump can no longer take the court for granted.
A cynic might say that with his two major decisions on the last day of the Supreme Court term a week ago, Chief Justice John Roberts saved both the Republican Party and the court — first by shutting the federal courts’ door to claims of partisan gerrymandering, a practice in which both political parties indulge but that Republicans have perfected to a high art, and then by refusing to swallow the Trump administration’s dishonest rationale for adding a citizenship question to the 2020 census.
President Trump, having placed two justices on the Supreme Court, had taken to treating the court as a wholly owned subsidiary, and not without some justification. It was the court, after all, in an opinion by Chief Justice Roberts, joined by the other four Republican-appointed justices, that saved the president’s Muslim travel ban a year ago. But the chief justice’s opinion in the census case last week blew a hole in what appeared to be a protective firewall that the president can no longer take for granted.
I’m not joining the cynics, especially now that the citizenship question is dead — or so it seemed on Tuesday, based on the Justice Department’s assertion to the federal district judge handling a companion case in Maryland that the census forms were being printed without the citizenship question. On Wednesday, a furious President Trump ordered the Justice Department to reverse course; what followed was a telephone colloquy between that federal judge, George Hazel, and the lawyers for which the word bizarre is a breathtaking understatement. “I can’t possibly predict at this juncture what exactly is going to happen,” Joshua Gardner, a Justice Department lawyer, told the judge, who gave the administration until Friday afternoon to get its story straight.
It would take a heart of stone not to feel sorry for the administration’s lawyers, faced with defending the indefensible. As they recognized 24 hours earlier, the chief justice’s opinion in fact left no wiggle room. Once the behavior of Wilbur Ross, the secretary of commerce, was called out by the Supreme Court of the United States, the president was trapped — and now his lawyers are caught in his net. Maybe they can find a way around the chief justice’s decision, but I don’t think so.
Here’s why: Once the court rejected the administration’s stated rationale as phony — or “contrived,” as Chief Justice Roberts put it more politely in agreeing with Federal District Judge Jesse Furman that improved enforcement of the Voting Rights Act was not Secretary Ross’s real motive — the administration might have tried to come up with some other politically palatable explanation. That would almost certainly have failed, because courts generally will not accept what they call “post hoc rationalizations,” explanations cooked up under pressure and after the fact. But even if such a ploy had succeeded, its very success would have proved Secretary Ross to have been a liar all along.
The citizenship question is now history, fortunately, but this whole episode is too fascinating, too important for the country and the court, to put behind us just yet. So in this column, I want to probe the census decision itself, both for what it tells us about the court and for what it might suggest about the next test of the relationship between the president and the court that he has so recently regarded as his very own. That is the question of the validity of the president’s rescission of the program known as Deferred Action for Childhood Arrivals, or DACA, the Obama-era policy that now protects the “dreamers,” some 700,000 young undocumented people brought to this country as children, from being thrown out of the only country they have ever known. The court will hear that case in its next term, and there are some striking parallels with the census case that just might leave the Trump administration empty-handed again.
But first, the census case. I’ve been obsessed with imagining whatever dark night of the soul preceded the chief justice’s last-minute decision to shift course and reject the administration’s position.
I readily admit that I have no sources for the claim I just made. I have no proof that Chief Justice Roberts initially voted with the administration and talked himself out of that position sometime during the two months that elapsed between the April argument and the June decision. But I’ve been reading Supreme Court decisions for a very long time, and the opinions that provide the holding — the chief justice’s plus the partially concurring opinion of Justice Stephen Breyer for the court’s four liberals — have all the hallmarks of judicial tectonic plates that shifted late in the day to produce an outcome that none of the players anticipated at the start.
To begin with the chief justice’s opinion: The first 22 of its 28 pages are an argument for why the decision by Secretary Ross to add the citizenship question to the census was a reasonable one that fell squarely within his authority. Noting that Mr. Ross rejected the advice of Census Bureau experts and decided to proceed despite the risk of depressing the response rate, Chief Justice Roberts writes, “That decision was reasonable and reasonably explained, particularly in light of the long history of the citizenship question on the census.”
Then suddenly, on page 23, the opinion’s tone changes as the chief justice reviews the finding by Federal District Judge Furman that Secretary Ross’s explanation for why he wanted the citizenship question in the first place was a pretext. The official story was that it would help the Department of Justice — which was said to have requested the addition of the question — to better enforce the Voting Rights Act on behalf of members of minority groups. In fact, as Judge Furman determined from the evidence, it was Secretary Ross who solicited the Justice Department’s request, and whatever the secretary’s motivation, the reason he gave wasn’t the real one.
“We are presented,” Chief Justice Roberts observes dryly, “with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decision making process.” He continues:
“The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”
Justice Breyer’s opinion, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, is almost as long as the chief justice’s. Nearly all of it reads like a dissent, arguing that Secretary Ross’s rejection of his own experts’ advice made the addition of the citizenship question unreasonable as a matter of law, “arbitrary and capricious” in the language of the Administrative Procedure Act. Only in Justice Breyer’s concluding paragraphs is there anything that reads like a concurrence: “I agree that the pretextual nature of the secretary’s decision provides a sufficient basis to affirm the District Court’s decision to send the matter back to the agency.” It’s hard to read these few paragraphs as anything other than a last-minute addition to a carefully crafted dissenting opinion, one that had rather suddenly become superfluous.
There were two other opinions filed in the case, one by Justice Clarence Thomas that was joined by Justices Neil Gorsuch and Brett Kavanaugh, and another by Justice Samuel Alito. Both disagreed vigorously with the chief justice’s bottom line. All four opinions scrupulously avoided any mention of what everybody knew: that documents brought to light in the weeks following the April 23 argument showed that the citizenship question was part of a plan not to help minority groups vote, but the opposite. The plan was to create and entrench Republican majorities in state legislatures by providing data for use if the Supreme Court gives the green light to counting only eligible voters in legislative redistricting. Conservative groups are poised to send such a case to the Supreme Court in the near future, part of a strategy to keep rapidly diversifying red states like Texas from turning blue.
There is no doubt that the justices were aware of this late-breaking development; during the days leading up to the decision, one of the plaintiff groups challenging the citizenship question had filed a brief with the court detailing the findings from the computer files of a recently deceased Republican redistricting specialist. If I’m right about the chief justice’s late-in-the-day change of heart, did these revelations play a part, even a subconscious one? That’s more speculation than even I am willing to engage in. Suffice it to say that it’s hard to imagine the administration’s litigating position undermined in a more devastating fashion.
It’s that observation that brings me to the DACA case. The court will actually hear three DACA cases, consolidated for a single argument and decision. All three are appeals by the administration of rulings that have barred it from carrying out its decision, announced in September 2017, to “unwind” the program. At issue are two Federal District Court opinions and a decision by the United States Court of Appeals for the Ninth Circuit that upheld a ruling by a federal district judge in San Francisco, William Alsup. The opinions differ slightly, but all found that the administration’s termination of DACA for the reason the administration has provided would violate the Administrative Procedure Act.
Here’s where the administration is caught. Its stated reason, as expressed by the acting secretary of homeland security on orders from the attorney general at the time, Jeff Sessions, was that DACA lacked statutory authority and was unconstitutional. At the heart of the administration’s appeal is the assertion that the federal courts lack jurisdiction to interfere with the “Executive Branch’s authority to revoke a discretionary policy of nonenforcement that is sanctioning an ongoing violation of federal immigration law by nearly 700,000 aliens.”
That is a very difficult position for the administration to maintain because it presents to the courts a question not of policy but of law. The administration would have a strong case for judicial deference if it described its rejection of DACA as a matter of enforcement priorities that differ from those of the previous administration. But by claiming that “the law is making us do it,” the administration is serving up the federal judges a question at the heart of their jurisdiction: What does the law require?
As Judge John D. Bates of the Federal District Court in Washington observed in his opinion, the administration provided only a few sentences of legal analysis to back up its claim. “This scant legal reasoning was insufficient to satisfy the department’s obligation to explain its departure from its prior stated view that DACA was lawful,” Judge Bates explained.
So the question is why the administration failed to offer a policy-based explanation, one that might well have persuaded the lower courts and eased its path to the Supreme Court. One reason might have been to protect the president, who declared shortly after his inauguration that “we are not after the dreamers, we are after the criminals” and that “the dreamers should rest easy.” The reason for going after the dreamers had therefore to be based on a claim of pure law, not a change of heart.
A more cynical explanation — and here I’ll indulge in the cynicism from which I refrained at the beginning of this column — is that in claiming that revoking the policy is required by law and not preference, the administration seeks to avoid accountability for a position that, if it were to prevail, would predictably cause economic disruption and public dismay.
Many policy positions predictably affect hundreds of thousands or millions of people; had Republicans succeeded in gutting the Affordable Care Act, for example, millions of people would have been thrown back into the health care jungle. But we don’t know their names. The DACA recipients, by contrast, have names that are known, not only to the Department of Homeland Security but to their schools, their employers, their communities. One dreamer recently received a Rhodes Scholarship and will not be able to return to the United States from Oxford if the administration wins its case. Others with less exalted achievements are simply getting their degrees, holding down jobs, paying their taxes, raising some 200,000 American-born children and going about their lives in the country they regard as their own.
The dreamers will still be here next April, when the census takers come around; the Supreme Court decision will almost certainly not be issued by then. They will be counted along with the rest of us in the grand decennial enumeration that the Constitution’s framers decreed. And a year from now, we’ll know whether the court that could see through one Trump administration strategy is willing and able to do it a second time.
Chief Justice John Roberts used every euphemism in the thesaurus this week to accuse the Trump administration of lying.
“The evidence tells a story that does not match the . . . explanation.”
“The sole stated reason — seems to have been contrived.”
There was “a significant mismatch between the decision . . . and the rationale.”
The “explanation . . . is incongruent with what the record reveals.”
Furthermore, it was a “distraction” from the truth, “based on a pretextual rationale” and lacked “a rational connection between the facts found and the choice made.”
A question running alongside Donald Trump’s political career is whether he will ever pay a price for his verbal insults.
It was widely thought Mr. Trump might have damaged himself fatally when in mid-2015 he said of John McCain’s time as a prisoner of war in Vietnam: “He’s not a war hero. He’s a war hero because he was captured. I like people that weren’t captured.”
Even now, Mr. Trump’s verbal smackdowns come so fast and furious that it’s hard to keep up. As far back as I can remember—about a week or so—objects of Mr. Trump’s ire have included
- the chief justice of the Supreme Court, the
- special counsel who is investigating him, and
- the chairman of the Federal Reserve Board.
- The attacks on “fake news” roll in and out like the weather.
Mr. Trump did the news conference primarily to offer his analysis of the midterm election results, which the president described as “very close to complete victory.”
.. It eventually became clear that what Mr. Trump meant by close to complete victory was the results in races with candidates for whom he personally campaigned—such as Florida, Georgia, Tennessee and Indiana—rather than the election outcome for Republicans more generally.
.. “And Barbara Comstock was another one. I mean, I think she could have won that race, but she didn’t want to have any embrace. For that, I don’t blame her. But she lost. Substantially lost. Peter Roskam didn’t want the embrace. Erik Paulsen didn’t want the embrace.”
This is unprecedented. Politics ain’t beanbag, but no president has ever ridiculed the losing members of his own party. No one in politics mocks a defeated election opponent.
.. This moment could cost Mr. Trump in the next two years. The Republicans Mr. Trump hung out to dry in that news conference have friends in Congress and across Washington, and it’s not likely they are going to forget this.
.. Every U.S. presidency at some point comes under intense political pressure. Some break, like Lyndon Johnson or Richard Nixon. But until then, all could count for their survival on the political and personal loyalty of members of their party or the people who worked for them.
Who with political power that matters will Donald Trump call on when his darkest hour arrives? Many will lift a finger, but how high?
Mr. Trump has proven his resiliency. But that news conference was an odd moment, kicking fallen Republicans while associating himself with the tender mercies of Nancy Pelosi. Washington, he may find, can quickly become a lonely place.