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Trump’s Quiet Attack on Redistricting

Having failed in its first effort to subvert democracy, the Trump administration has found subtler means to achieve its end.

Mark Wilson/Getty Images

It went largely unnoticed last week, but the Trump administration’s ongoing campaign to structurally tilt American democracy in the Republican Party’s favor is proceeding apace. President Donald Trump ordered the Census Bureau to compile citizenship data from existing federal records last month, after the Supreme Court effectively blocked a citizenship question on the census itself. In a letter to Massachusetts Representative Ayanna Pressley, the bureau confirmed it would produce that data in a highly auspicious form.

“Administrative records will use existing government information to produce citizen voting age population (CVAP) data at the census block level, the smallest geographic data unit,” the bureau told Pressley’s office last week. “The block-level data will have the same strong privacy safeguards used for the 2020 Census. The Census Bureau cannot and will not share individual respondent information with any other government or non-government entity, including law enforcement.”

While not obvious at first blush, this arcane minutiae carries massive consequences for American politics. Every ten years, state legislatures redraw both their own seats and federal House districts using the bureau’s block-level data on total population—the Census-tabulated head count of every single person inside the United States. By also providing block-level data on eligible voters, the bureau is opening the door for states to redraw their legislative maps in 2021 based on that population base instead.

Such a move would reshape the political and social topography of any state that tries it. Legislative seats—and the raw political power that comes with them—would shift away from diverse urban areas and gravitate toward whiter suburban and rural communities. The centers of political gravity would also bend in those directions, resulting in state legislative maps that strongly favor the Republican Party. The effects of extreme partisan gerrymandering and stringent voter-ID laws would be amplified.

It’s no secret that Republicans are considering this option; this precise outcome has been the sought-after result of the Trump administration’s intrusions into Census policy. In 2016, a host of conservative legal groups urged the Supreme Court to rule that using total population to draw districts violated the “one-person, one-vote” rule. Texas state officials took the opposite view in its own defense, but with a twist: They told the justices that it would be permissible for Texas to use any reliable population base when drawing districts, whether it be total population, eligible voters, or something else. The court declined to answer that question and simply ruled that the use of total population is constitutional.

Texas did not say outright that it wanted to use eligible voters to redraw legislative maps after the 2020 Census, of course. The state’s Republican-led government merely raised the question. Elsewhere in the litigation, however, conservative activists had Texas legislative maps in mind. A top conservative donor who considered backing the litigation commissioned Thomas Hofeller, a Republican gerrymandering expert, to study the effect that using CVAP data would have on redistricting in Texas. Hofeller concluded that the change “would be advantageous to Republicans and non-Hispanic whites” because it would dilute Hispanic representation.

Hofeller, who died last year, noted at the time that district-level CVAP data did not currently exist and that the ideal mechanism to obtain it would be a question on the 2020 census. Ironically, he likely prevented that from happening. Hofeller’s work on the issue became public just weeks before the Supreme Court was set to rule on whether the question could be added. The court later ruled that the administration’s stated rationale for adding it—enforcing the Voting Rights Act, of all things—was likely bogus. Chief Justice John Roberts cited neither Hofeller’s work nor his efforts to persuade the Trump administration to add the question. But the opinion’s unusual structure and tone strongly suggests that it played a decisive last-minute role.

Undeterred, Trump initially vowed to keep fighting in the courts to add the question despite a July deadline to print the census questionnaire. He then backed down and ordered the Census Bureau to compile the information from existing government records. Trump’s executive order offered multiple reasons why the federal government might be interested in that data. But one rationale was far more conspicuous than the others: that state legislatures could use it to redraw their legislative maps in 2021 without counting nonvoters.

“Some courts, based on Supreme Court precedent, have agreed that State districting plans may exclude individuals who are ineligible to vote,” the executive order stated last month. “Whether that approach is permissible will be resolved when a State actually proposes a districting plan based on the voter-eligible population. But because eligibility to vote depends in part on citizenship, States could more effectively exercise this option with a more accurate and complete count of the citizen population.”

No state has yet said it would use anything but total population to redraw its legislative maps in 2021, though Alabama is currently suing the Census Bureau to stop it from counting undocumented immigrants when apportioning congressional seats. At the same time, there’s a clear and unambiguous effort to lay the groundwork for states to use eligible voters as the population base for the next round of redistricting.

It’s no surprise that Republicans are giving this plan a shot. After the 2010 midterms, GOP-led state legislatures turned to extreme partisan gerrymandering and strict voter-ID laws to entrench themselves further in office. Republican leaders in North Carolina and Wisconsin quickly worked to undermine their state governors and supreme courts when the party lost control of those bodies. Indeed, the GOP’s overall turn toward Trumpism reflects a deeper fear that long-term demographic changes could effectively lock the conservative movement as it currently exists out of national power.

What’s striking is the quietness with which it’s taking place. Conservatives may be preparing to fundamentally change how this country elects its lawmakers without a shred of public discussion or debate about it, at least until such conversations occur. It’s an object lesson in how much impact a movement can have with a canny approach to the federal bureaucracy and a modest amount of discretion. At the very least, this skulduggery offers a contrast to the efforts which preceded it. Were it not for Trump’s clumsy approach to governance, the original push to add a citizenship question would have likely attracted far less scrutiny.

It’s clear that most political observers have failed to fully grapple with this shift in tactics as well. Journalists and politicians regularly speculate as to whether states like Georgia and Texas may turn blue in 2020, at least in the presidential election. What’s often underappreciated in those analyses are the lengths to which Republican lawmakers in those states are prepared to go to stop it. That process won’t end after 2020. If past is prologue, the corrosion of American democracy only stands to worsen.