How the Supreme Court and the next census could affect the electoral mapOn April 2, 2018 by Zander
AS LONG as elections have been held, candidates have sought to bend the rules to their advantage. American political parties have taken gerrymandering to new heights, using computer models that enable districts to be crafted block by block for maximum partisan gain. The Supreme Court is now taking notice, having accepted two cases that question whether it is constitutional for legislators to choose their voters, rather than the other way round. But Republicans, whose victories in 2010 put them in a position to doctor far more districts than Democrats have, are taking no chances. A change to the questionnaire for the decennial census in 2020 is expected to increase the share of districts whose voters prefer Republicans.
The Supreme Court has ruled on gerrymandering before. In 2004 a majority of the justices agreed that it should be reined in, but they could not decide how. Now they are poised to re-evaluate that question.
On March 28th they were to hear Benisek v Lamone, a case pitting Republican voters in Maryland against Democrats in the state’s House of Delegates. In 2011, the voters complain, legislators sabotaged the Republican Party in the sixth congressional district. A year after this “devastatingly effective” gerrymander, a House seat which a Republican, Roscoe Bartlett, had won for a tenth time in 2010 by 28 points went to John Delaney, a Democrat with presidential ambitions for 2020. Mr Delaney’s 21-point win in 2012 may show that Republicans were “singled…out for disfavoured treatment”—“retaliation” barred by the First Amendment. The freedom of association, the plaintiffs contend, “guarantee[s] that no state may punish its citizens for their political beliefs”. Maryland Democrats counter that First Amendment retaliation is an “untested theory”.
Benisek is the court’s second look this term at gerrymandering. When the justices heard Gill v Whitford last October, some seemed intrigued by a statistics-based approach pegged to the 14th Amendment’s equal-protection guarantee. But the conservative wing of the court was sceptical of the standard offered by those challenging a Republican gerrymander in Wisconsin. Chief Justice John Roberts derided it as “sociological gobbledygook”. For the statistics-shy, the First Amendment approach in Benisek may present an attractive alternative. But its simplicity swings the Goldilocks problem in the other direction. As Wisconsin argues in its amicus brief, the Supreme Court’s endorsement of the “retaliation” test may make it “trivially easy for plaintiffs to scrounge up an expert or two” and spawn lawsuits.
Any new restriction on gerrymandering would aid the Democrats. But the Trump administration has already begun efforts to counteract this risk. On March 26th the Commerce Department said it would add a question to the census in 2020 asking respondents whether they are American citizens. The census is designed to count all residents, regardless of their immigration status. The department says it needs the information to enforce the Voting Rights Act’s protections for racial and linguistic minorities.
Democrats say the intention is the opposite. They argue that the spectre of officials knocking on doors asking whether respondents are citizens will discourage people in communities where undocumented immigrants live from taking part in the census. That would cause an undercount of the population of these (mainly Democratic) areas, reducing their number of congressional districts and presidential electoral votes.
As with gerrymandering, the final outcome will depend on the courts: California and New York, among others, have announced that they will sue the federal government to block the census question. But a decision will have to come quickly. The law requires the questionnaire to be finalised by March 31st.