The Evenwel Gambit

Joey Fishkin:

So that leaves what I’d call the Evenwel Gambit: fess up, selectively, to Real Reason 2. Claim that you want to add the citizenship question to the Census in order to enable the CVAP-based drawing of district lines in 2021. In the last round of fighting over switching from total population to CVAP—the Evenwel case from 2016, one significant issue was that the data we have about citizenship, although fairly accurate, is not that granular—it doesn’t measure small enough units, like census blocks—that one would ideally want in order to comply with the exacting jurisprudence of one-person-one-vote.  (The data we have comes from the American Communities Survey (ACS), which has one interesting advantage over the Census: it uses statistical sampling, which the Census does not, and which can be essential for curing problems of nonresponse.)

I predict that the government may well conclude that the Evenwel Gambit is the best they can do: it has the great virtue of being true enough that it cannot be dismissed as post hoc pretext, yet it is not nearly so blatant in its disregard for basic norms of impartiality in governance as Real Reason 1. The case they would make is simple: CVAP and total population are two rival approaches to drawing district lines.  Each has its virtues, they would argue, with total population providing equal representation for equal numbers of people, while CVAP provides more of an equally weighted vote (an argument that collapses under close scrutiny, but that might be good enough for this purpose).  They would ask the Court to allow the Census question in order to give jurisdictions the option of choosing equally weighted votes over equal representation.

This is in line with I wrote at Slate back in May:

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.

See also my post from earlier this week, 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.

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