All’s Well That Ends Well, or All’s Well That Evenwel? How the Commerce Department May Still Help States to Draw Districts with Equal Numbers of Voter Eligible Persons to Minimize Hispanic (and Democratic) Voting Strength

It is undeniably good news that the Trump Administration decided to abandon the citizenship question in the face of evidence that it would depress turnout especially among those with noncitizens in a household and in light of the Supreme Court’s finding that the reason the Administration offered for including the question (to help pursue nonexistent Voting Rights Act claims on behalf of Hispanic voters).

The bad motive for including the question appeared to be two-fold: (1) to depress turnout in Hispanic (and likely Democratic) households and (2) to allow states to have citizenship data that would let them draw districts with equal numbers of people, not voters. As I explained at Slate, “The story of Ross’ actual motivation turns out to be much worse. Recently released documents coming from the hard drive of the late Republican redistricting operative Thomas Hofeller indicate that the intention behind the inclusion of the question was to give Republican state legislatures a chance to draw districts that—by excluding a large number of noncitizens from the census count used to determine the number and location of districts in each state—would help Republicans gain more seats and minimize the power of Hispanic voters. One such Hofeller memo explicitly said the question would offer ‘a disadvantage to the Democrats’ and be ‘advantageous to Republicans and non-Hispanic Whites.'”

The Supreme Court expressly left the issue of whether it is permissible to redistrict on this basis in Evenwel v Abbott. And the lack of a citizenship question could hinder states in doing so.

But as I understand it from people who have been following this closely than I am, the Census Department is still going to create citizenship data which can then be used for redistricting. Ross ordered the Census Bureau to compile citizenship data through existing administrative records, something bureau experts had told him would be cheaper and more accurate than a question anyway.

Now maybe by the time this data is compiled, a Democratic administration could block its release. But if Trump is reelected, these data could be made available, and states could try the Evenwel gambit.

It would then be up to the Supreme Court to decide if this kind of districting is kosher. I count at least 3 and likely 5 votes for this position, even if (after Rucho) the sole motivation for using this measure is to secure partisan (and overlapping racial) advantage.

This puts even more pressure on what happens in the 2020 elections, both for President and Congress, but also for state legislatures.

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