The Trump administration’s plan to release citizenship data via the census invites red states to take partisan gerrymandering to new extremes, and sets the stage for a high-stakes legal battle over who deserves democratic representation in the United States.
More than a dozen red states have already signaled interest in drawing district lines based on the voter-eligible population of citizens, instead of on total population. Mapping districts around citizens alone would politically advantage Republicans, marginalize immigrants and children, reverse longstanding practice, and raise constitutional questions about the meaning of “one person, one vote.”
“This is part and parcel of an epic power struggle that is taking place in a demographically changing America,” says Michael Li, senior redistricting counsel at the Brennan Center for Justice at New York University’s School of Law. Voting rights advocates say districting based only on citizens eligible to vote would violate both anti-discrimination laws and the Equal Protection Clause of the Constitution.
The Supreme Court turned back the Trump administration’s plan to include a citizenship question on the 2020 census, but the president has now issued an executive order calling on the Commerce Department to obtain citizenship data from agencies like the Department of Homeland Security and the Social Security Administration. The order explicitly states that this administrative data will help states “design state and local legislative districts based on the population of voter-eligible citizens.”
The question of whether it’s legal to draw legislative districts based on eligible voters has been percolating for years. In 2016, the Supreme Court rejected a conservative activist’s argument that Texas was constitutionally required to draw its district lines based only on the number of eligible voters. But that case, Evenwel v. Abbott, left open the question of whether states may voluntarily choose to draw maps based on something other than total population.
Drawing congressional district lines based on voter-eligible citizens alone would be tough to defend constitutionally, say legal experts, since past Supreme Court rulings have held that the Constitution requires House districts to be based on total population. But the rules regarding the maps for state legislatures, counties, and cities are not so clear. In Evenwel, Justice Samuel Alito called in a concurrence for another legal case to settle the “important and sensitive” question of whether states should be free to use a metric other than total population.
Voting rights advocates have long anticipated a conservative test case along just these lines, what some like to call “Evenwel Two.” Now that challenge looks a lot closer. While GOP state officials have refrained from trumpeting their plans, the Republican playbook is clear. Trump’s citizenship question obsession originated with the late Thomas Hofeller’s recently-unearthed memo in which the GOP gerrymandering consultant concluded that drawing districts based on the so-called Citizenship Voting Age Population (CVAP) “would be advantageous to Republicans and Non-Hispanic Whites.”
Before Trump released his executive order, 19 House Republicans wrote Attorney General William Barr to urge such a move, arguing: “Despite claims to the contrary, citizenship is unquestionably germane to carrying out our duty to appoint representatives.” One signatory, Alabama Republican Mo Brooks, joined in a lawsuit suing the administration for counting all U.S. residents (not just citizens) in the census.
GOP state legislators appear eager to test the legal limits of gerrymandering. Republican lawmakers in Missouri and Nebraska have pursued legislation to exclude noncitizens from the redistricting process. Republican legislators in those states, and in Arizona and Texas, told Reuters they would consider making use of citizenship data the administration releases.
GOP officials in those states and 13 others, including Alabama, Arkansas, Oklahoma, and South Carolina, argued for the citizenship question in an amicus brief to the Supreme Court. The brief echoed the Trump administration’s rationale that it would help enforce the Voting Rights Act—an argument the high court charitably rejected as “contrived.” But the brief’s key argument was this: “When legislators determine districts based on population without access to accurate statistics on citizenship, the result is that legally eligible voters may have their voices diluted or distorted.”
Red states will not have carte blanche to draw districts around citizens. Some state constitutions require districts to be drawn based on population. And groups such as the American Civil Liberties Union and the Mexican American Legal Defense Fund have pledged to sue if political seats are apportioned based on anything but total population. Drawing maps that count only voter-eligible citizens would challenge the centuries-old constitutional principle that all U.S. residents deserve representation, including children not yet eligible to vote, say civil and voting rights advocates.
Several Democratic presidential candidates have said they would block the release of citizenship data if elected, including New Jersey Senator Cory Booker, who has introduced legislation that would bar the Census Bureau from sharing the data.
But the Supreme Court’s landmark ruling this summer in Gill v. Whitford made clear that this high court will not stand in the way of partisan gerrymandering. And with two new right-leaning justices on board since Evenwel was decided in 2016, Republicans eager to draw selectively representative maps may find a more receptive audience this time around. That gives voters just one more reason to put someone else in charge of the White House, and of the GOP-controlled Senate, before redistricting begins in 2021.