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American Democracy Is on the Supreme Court Docket

Three cases being heard this term could amplify the imbalance of power and influence in U.S. politics.

Edward Linsmier/Getty Images

The Supreme Court’s current term may have started with a whimper, but it will end with a bang. In recent weeks, the justices added three cases related to electoral power and influence in the United States. One involves the Trump administration’s efforts to add a citizenship question to the 2020 census; the other two will give the justices another opportunity to weigh the constitutionality of partisan gerrymandering.

Taken together, the rulings could have a dramatic effect on the shape and quality of American democracy for the next decade.

Allowing the citizenship question on the census would undermine the survey’s accuracy, compromising a decade’s worth of legislative maps and tilting the playing field toward whiter and more rural communities at the expense of everyone else. And thwarting legal challenges to warped congressional districts would deny Americans a means of remedying another tool of political disempowerment. The Roberts Court may ultimately rule in ways that improve equal representation in America, but its track record gives little comfort that it will.

Last week, the court announced it would hear Department of Commerce v. New York, the dispute over Trump’s proposed citizenship question. The main purpose of the census is to count every living person within the United States—citizen and non-citizen alike—and thus ensure that each state has the appropriate number of members in the House of Representatives. But the data collected on gender, age, race, income, and more has a nearly endless set of other uses. State legislators use it to redraw their own legislative maps. Congress allocates hundreds of billions of dollars in federal domestic programs to the states based on their total population. Businesses use the data to determine where they should expand and how to cater to different communities. It fundamentally shapes how Americans engage with their civic institutions, and how those institutions engage with them.

Adding a citizenship question is less innocuous than it may seem. A recent PRRI/The Atlantic survey found that 76 percent of Americans, including 81 percent of Republicans, believe the question will make the census inaccurate. Many experts, including the Census Bureau’s career staff, fear that the question would measurably reduce participation among Hispanics and immigrants, and thus cause them to be underrepresented in the final data. The Trump administration’s aggressive policies toward those communities has already made members of those communities reluctant to identify themselves to the government for other purposes. The shadow of history also looms large: Federal agents secretly used census data to locate and detain Japanese American families during World War II.

Seventeen Democratic-led states and a coalition of immigrant rights groups sued last year to block the question. They argued that Secretary of Commerce Wilbur Ross, who oversees the Census Bureau, violated the Administrative Procedures Act by ordering a citizenship question to be added in an “arbitrary and capricious” manner. Ross initially said a citizenship question was necessary to help the Justice Department enforce part of the Voting Rights Act. Government records made public during the trial revealed, however, that the question was added by Ross’s initiative over the objections of career officials who warned it would have dire implications for the census’ accuracy.

Judge Jesse Furman ruled against the Trump administration last month in a 220-page decision that excoriated the secretary of commerce. “[Ross] failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices—a veritable smorgasbord of classic, clear-cut APA violations,” he wrote.

Even a modest undercounting would seriously warp census data for the next decade, depriving states and cities across the country of federal funds and political power. Relying on expert testimony, Furman found that California would almost certainly lose seats in Congress, and that Arizona, Florida, Illinois, New York, and Texas would risk losses as well if a citizenship question was added to the census. Since many states use federal data to reapportion their own legislatures every ten years, the impact would also be felt in state and local politics. “The addition of a citizenship question on the census will cause some jurisdictions and their residents to lose political power in that process as well,” he wrote.

If the Supreme Court sides with Ross and the administration, its rulings in two other cases could compound that effect. Lamone v. Benisek and Rucho v. Common Cause both revolve around partisan gerrymandering. Multiple federal courts have ruled over the last decade that the practice can be unconstitutional in extreme circumstances. At the same time, the Supreme Court has declined to say whether partisan gerrymandering is unconstitutional or establish a test to determine when it goes too far. When the subject came before the justices last spring, they ultimately punted both cases in question back to the lower courts for further hearings.

Lamone was one of those cases. It centered on Maryland’s 6th congressional district, which spans the western half of the state. The district had been a reliable GOP stronghold before Democratic state lawmakers redrew Maryland’s legislative maps after the 2010 census. The new map shuffled tens of thousands of Republican voters into a neighboring district, a sum greater than what was needed to account for population changes. In the 2012 election, Democratic challenger John Delaney ousted GOP incumbent Roscoe Bartlett, who had won the previous ten races in the district, by a 20-point margin.

Rucho, the other case set to be argued this term, sprang from North Carolina’s gerrymandering wars. North Carolina Republicans aggressively wield redistricting powers to benefit themselves, securing at least nine of the state’s 13 House seats—one seat remains in dispute after last year’s midterms—even though the state is more evenly divided in its partisan affiliations. They are hardly subtle about it, either. “I think electing Republicans is better than electing Democrats,” one Republican state lawmaker told his colleagues when they redrew districts in 2016. “So I drew this map to help foster what I think is better for the country.” The state legislature already had redrawn its post-2010 congressional districts after a federal court tossed out their first map in a racial-gerrymandering lawsuit. Now the Supreme Court will consider whether the voting-rights groups that brought the lawsuit have the standing to bring the case—and whether the courts can remedy the problem at all.

Litigants in both cases argue that partisan gerrymandering violates the First Amendment, either by retaliating against voters for their political preferences or by diluting their ability to influence the electoral process. Most of the justices have acknowledged in past cases that partisan gerrymandering is a problem, but they have yet to rally around a legal standard to determine when a map crosses the line. In Gill v. Whitford, a case heard last term, the plaintiffs proposed using a mathematical formula known as the “efficiency gap” to quantify the problem. Chief Justice John Roberts described those efforts as “sociological gobbledygook” during oral arguments last term.

His skepticism isn’t surprising. A major theme of Roberts’s tenure is redistributing the balance of American political power in a less democratic direction. The court’s decision in Citizens United, for example, gave wealthier Americans even greater influence over political candidates and policy decisions by loosening campaign finance restrictions. In Shelby County v. Holder, Roberts and the other conservative justices gutted one of the core provisions of the Voting Rights Act of 1965, ushering in a new dark age of voter suppression. With Anthony Kennedy’s retirement and Brett Kavanaugh’s confirmation, the court has moved further to the right than at any other time in recent history. This term’s slate of cases could give Roberts and his allies a chance to set American democracy even further back.