I have written this piece for Slate. It begins:
If we had a fair Supreme Court not driven by partisanship in its most political cases, Thursday’s blockbuster revelation in the census case would lead the court to unanimously rule in Department of Commerce v. New York to exclude the controversial citizenship question from the decennial survey. Those newly reveal documents show that the Trump administration’s purpose in putting the citizenship question on the upcoming census was not its stated one to help Hispanic voters under the Voting Rights Act, but rather to create policy that would be “a disadvantage to the Democrats” and “advantageous to Republicans and non-Hispanic Whites.” It’s difficult to produce a greater smoking gun than explicitly saying you are hoping to help the GOP by increasing white voting power. But this revelation, coming from the hard drive of a deceased Republican political operative and made available to Common Cause by his estranged daughter, is ironically more likely to lead the Republican-appointed conservative justices on the Supreme Court to allow the administration to include the question that would help states dilute the power of Hispanic voters.
The question whether it is permissible to draw districts in the way Hofeller wanted is an open one. Ed Blum brought a 2016 case, Evenwel v. Abbott, in which the court unanimously rejected Blum’s argument that the state of Texas was constitutionally required to draw districts with equal numbers of eligible voters. But the majority opinion by Justice Ruth Bader Ginsburg did not go further and reach the question whether drawing districts in this way—which would exclude not just noncitizens but also children and felons from the count—violates the Constitution’s equal protection clause. “Because history, precedent, and practice suffice to reveal the infirmity of appellants’ claims, we need not and do not resolve whether, as Texas now argues, States may draw districts to equalize voter-eligible population rather than total population,” Ginsburg concluded.
Justices Clarence Thomas and Samuel Alito, however, wrote concurrences affirming their belief that states have the right to draw districts in this way. There is good reason to believe that the other conservative justices would come along should they have to decide the issue.
The newly revealed census documents may now give them the opportunity to do just that.
All of that means that the Supreme Court will likely go along with Ross’ true purpose in including the citizenship question on the census: to allow states to draw districts with equal numbers of voter-eligible persons rather than total persons. The smoking-gun evidence showing that government officials lied in offering the Voting Rights Act excuse for including the question likely will be seen by these justices as irrelevant if the real reason is a permissible one.
This is not how the census case should be decided. The government should have to offer its real reasons for taking government actions and defend its actions on those terms. And even if it is otherwise constitutionally permissible to experiment with different understandings of how to draw districts with equal populations under the equal protection clause, the government should not be able to do so if the purpose is to dilute the power of political adversaries and minority voters, as demonstrated in this case by the new revelations.
Thursday’s revelations should be damning. The ACLU is already seeking sanctions in the trial court in the census case for government officials lying about the real reason for including the citizenship question. But instead the revelations may help to prop up a case that should embarrass government lawyers to argue.