Posted by Ryan Suto on May 30, 2019 in Blog

The Supreme Court is about to decide on two issues central to American democracy: how we count people living in the United States and how we divide those people into districts for representation. Recently released documents reveal just how connected these cases are.

How people are counted (“enumeration”) and divided into political districts (“apportionment”) are critical aspects of how democratic institutions operate, and can even call into question whether a country is a democracy at all. If people are counted incompletely or are divided unequally, democratic elections will not render ‘the will of the people’ that they promise, but instead empower an inaccurate picture of popular will.

While no process is perfect, there are inherent differences between small, isolated inaccuracies caused by human error and intentional, systemic flaws designed to disenfranchise specific groups. Recent evidence has unearthed a broader strategy by conservative operatives to weaponize and connect enumeration and apportionment by undermining representation. And now, the Supreme Court is poised to rule in two cases regarding fundamental aspects of both enumeration and apportionment. Without hyperbole, the decisions coming later this month could alter the very legitimacy of American democracy.

Enumeration

Regarding enumeration, the Court heard arguments in Department of Commerce v. New York which ultimately asks whether the administration’s decision to add a citizenship question to the census violated the the U.S. Constitution. In this case, the administration has pushed for the addition of a question to the census which will ask the citizenship status of all members of a household. This question is not necessary, however. Section 2 of the 14th Amendment states, “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State…” It is important to note that the Amendment uses the term “persons” here when discussing enumerating people, and later in the same section uses the term “citizens” when discussing voting, showing that the drafters intended that all people present should be counted for the purposes of the census.

The citizenship question is not only unnecessary, it is harmful for democracy. The Census Bureau itself agrees that at least 12% of noncitizens will likely not respond to the census if a question about citizenship is included. And noncitizen households are not evenly distributed across the country or among communities; states like California, New York, New Jersey, Texas, and Florida have much higher percentages of immigrants and noncitizens than other states. This means that a disproportionate number of persons in these states will not be counted in the census, and as such will not be counted when states are given seats in the House of Representatives. And given that some of the highest concentrations of Arab Americans live in states with higher percentages of immigrants, it is likely that the voting power of a majority of Arab Americans will be watered-down by the addition of a citizenship question. For this reason, AAI has opposed the addition of this question, and filed an amicus brief with the Supreme Court in this case.

This likely and structural unequal distribution of seats will directly dilute the representation of communities of color, which are more likely than white communities to include noncitizen households. This result from the addition of the citizenship question would contradict the holdings of a series of voting rights cases from the early 1960s, such as Baker v. Carr (1962), Gray v. Sanders (1963), Wesberry v. Sanders (1964), and Reynolds v. Sims (1964). In Wesberry v. Sanders the Court wrote that, “as nearly as is practicable” one person’s vote “in a congressional election is to be worth as much as another's.” But perhaps more fundamentally, by choosing a way of counting persons which knowingly results in the underrepresentation of communities of color, the addition of the citizenship question may undermine the extent to which Congress can claim to equally represent all Americans, especially in the eyes of those whose voices are muted as a result.

Apportionment

Regarding apportionment, the Court consolidated two cases: Lamone v. Benisek, challenging a congressional maps drawn by Democrats in Maryland who rejected proposals to increase minority representation in favor of a political gerrymander, and Rucho v. Common Cause, challenging a congressional map drawn by Republicans in North Carolina enacted only after a racial gerrymander was struck down.

The Supreme Court is tasked with determining if these maps, explicitly created to produce greater representation for the in-power party than actual votes would suggest, could violate the First Amendment, the Equal Protection Clause, or Article I of the U.S. Constitution. The Court has never ruled partisan gerrymanders as unconstitutional, but they have never faced such perfect cases, either: in both Maryland and North Carolina, the politicians who drew the maps openly admitted they did so in order to limit the number of seats the other party would likely gain in upcoming elections. If the Supreme Court will ever rule that politicians cannot draw district maps specifically to limit the representation of other parties, this is the case. 

If the Supreme Court does not find some limit to partisan gerrymanders, the only real guiding principles for politicians who draw new districts would be 1) to keep each district roughly proportional in population, as discussed above, and 2) to not engage in explicit racial gerrymanders. Beyond those considerations, there would be no reason for state political parties which control both state legislatures and the governorship to create Congressional and state district maps which would make it all but impossible for other parties to gain power. It would essentially allow parties to freeze this moment in time as the permanent balance of power. At present, 14 states are completely controlled by Democrats and 22 states are completely controlled by Republicans. While those numbers could potentially change by the time the 2022 redistricting cycle begins, right now 36 of 50 states, about 248 million Americans, could be subjected to unrepresentative districts designed to undermine the will of the people if the Court does not find that political gerrymandering undermines our democracy.

That is not the only danger, however. By not finding a limit to partisan gerrymandering, the Supreme Court would allow for the race or party jurisprudential question to live on: gerrymandering to undermine a race or ethnic group is unconstitutional, but gerrymandering to undermine a political party would remain permissible. This fact-intensive investigation requires that judges ignore the reality that, throughout much of the U.S., race and party are so intertwined that in some states, such as Alabama they are a near perfect match. Indeed, Arab Americans may have been subject to a racial gerrymander in Michigan under the pretense of a political gerrymander, preventing the creation of an Arab American-majority district in Dearborn, and instead splitting the area between several congressional districts. For this and related reasons, AAI has endorsed redistricting reform ballot initiatives in Michigan, and participated in a rally opposing gerrymandering outside of the Supreme Court during oral arguments. While lower courts have found Michigan’s congressional map an unconstitutional partisan gerrymander, the Supreme Court has halted the redrawing process until after it decides the Maryland and North Carolina cases.

What is worse for minority populations, last year the Supreme Court handed down a set of four decisions which have made the electoral process more hostile to minority voters and to those currently out of power. The picture is even worse at the state level: voters in 25 states now face stricter voting requirements than they did a decade ago, many of which disproportionately impact minority communities.

After 2020

The timing of these cases could not be more important: after the 2020 census data is available, every state across the country will re-draw Congressional and state legislative districts for new elections. One cannot exaggerate just how much is at stake in these upcoming decisions. If the Court upholds the addition of the citizenship question and finds no constitutional limit to partisan gerrymandering, both likely outcomes, American democracy will likely begin to chart a dangerous path.

First, the 2020 census will systematically undercount at least 10% of households which include noncitizens, disproportionately undercounting the populations of municipalities, cities, and states with higher immigrant populations. States such as California, New York, New Jersey, and Texas will have more people within their borders than numbers would indicate, impacting a range of government services and benefits. Next, beginning in 2021 state legislatures will begin to craft new state and congressional districts based on this systemic undercount, disproportionately diluting the votes of immigrant groups. Further, politicians will have a newly-minted free pass to try their best to shut their opponents out of power, especially in the more than two-thirds of states where one party controls both legislative chambers and the governorship. And in a political context in which party and race are nearly impossible to separate, this will further marginalize communities of color from fair representation. Last, elections in these skewed districts will begin in 2022, where at least half the states have recently enacted strict voting requirements which disproportionately impact minority communities. 

Biased numbers will be used to draw biased districts for voters to cast ballots under biased laws. Each of these biases create a Venn diagram of disenfranchised people: those in localities with high numbers of immigrants, those who belong to parties who are not in power in their state government, and those who have been targeted by voting restrictions. At the center of this diagram are communities of color.

Connecting the dots

If the connection between the addition of the citizenship question to the census, gerrymandering, and the targeting of immigrant and minority populations sounds spurious, consider the recently uncovered documents of Thomas B. Hofeller, a Republican operative. The New York Times revealed that Hofeller wrote, “a study in 2015 concluding that adding a citizenship question to the census would allow Republicans to draft even more extreme gerrymandered maps to stymie Democrats” and later, “wrote the key portion of a draft Justice Department letter claiming the question was needed…”  Hofeller’s reasoning is simple: if you exclude many in immigrant communities from the census count, who both overwhelmingly vote Democratic and live in areas which vote Democratic, you can “force Democratic districts to expand to meet the Constitution’s one person, one vote requirement. In turn, that would translate into fewer districts in traditionally Democratic areas, and a new opportunity for Republican mapmakers to create even stronger gerrymanders.” 

This explicit connection between adding the citizenship question to the census and strategies for gerrymandering confirm that not only would the addition of the citizenship question undermine fair representation, but that was also the core motivation for adding the question. Combined with evidence in gerrymandering cases such as Rucho v. Common Cause in which North Carolina Republicans attempted a racial gerrymander, which was struck down, and then settled for a political gerrymander with nearly the same impact, the picture is clear: both numeration and apportionment have been targeted as ways to mute minority representation at the ballot box and ensure a permanent white conservative governing majority in the United States.

 Impact on American democracy

If the Supreme Court allows for the addition of the citizenship question and political gerrymandering to continue, and ignores the clear evidence of the attempt to weaponize our institutions against true representation, Americans will be acutely aware of how the building blocks of American democracy are increasingly stacked against minority communities, and many will lose any remaining faith in the fairness of our governance.

This will lead to the undermining of democratic legitimacy; that is, the extent to which the people believe the government deserves to maintain authority over the land and people. Without a foundational belief that all eligible voters have access to cast a ballot, and that all votes are counted equally, there is little reason to continue to trust that the government acts in the interest of all. And, beyond shallow political victories, that may in fact be the true long-term goal of conservative operatives.

As such, the Court should proceed with caution; a government that increasingly systemically undermines the political representation of minority populations is not one which can long endure.