By Glen Reaux
Due to recent Supreme Court rulings this article has been updated:
On June 27th, in the case of Department of Commerce v. New York {1}, the Supreme Court in a 5-4 decision ruled against the Trump administration’s attempt to add a citizenship question to the 2020 census. The Court found that the Trump administration did not provide an adequate reason for adding the question. After a bench trial, the District Court determined that “the Secretary’s action was arbitrary and capricious, based on a pretextual rationale, and violated the Census Act, and held that respondents had failed to show an equal protection violation.” After this action by the District Court, the Department of justice was able to get the Supreme Court to hear the case. By its ruling, the “Republican Controlled Supreme Court Rigs 2020 Elections.”
The Supreme Court’s ruling Stated:
“It is hardly improper for an agency head to come into office with policy preferences and ideas, discuss them with affected parties, sound out other agencies for support, and work with staff attorneys to substantiate the legal basis for a preferred policy. Yet viewing the evidence as a whole, this Court shares the District Court’s conviction that the decision to reinstate a citizenship question cannot adequately be explained in terms of DOJ’s request for improved citizenship data to better enforce the Voting Rights Act (VRA). Several points, taken together, reveal a significant mismatch between the Secretary’s decision and the rationale he provided. The record shows that he began taking steps to reinstate the question a week into his tenure, but gives no hint that he was considering VRA enforcement. His director of policy attempted to elicit requests for citizenship data from the Department of Homeland Security and DOJ’s Office of Immigration Review before turning to the VRA rationale and DOJ’s Civil Rights Division. For its part, DOJ’s actions suggest that it was more interested in helping the Commerce Department than in securing the data. Altogether, the evidence tells a story that does not match the Secretary’s explanation for his decision. Unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale—the sole stated reason—seems to have been contrived. The reasoned explanation requirement of administrative law is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. The explanation provided here was more of a distraction. In these unusual circumstances, the District Court was warranted in remanding to the agency. See Florida Power & Light Co. v. Lorion, 470 U. S. 729, 744. Pp. 23–28.”
This decision basically punted by sending the case back down to the District court providing the Trump administration with the ability to add the citizenship question to the census provided that a justifiable reason can be provided. The Court’s ruling was a huge victory for voting rights advocates that believed the citizenship question was a ploy to intimidate minorities and hopefully keep them from voting in the 2020 elections in representative numbers.
The Trump administration will not be able to respond to the Court in time for a citizenship question to be added to the 2020 census, but the door is open for the question to be added to the 2030 census. In response to the Court, on Thursday, July 11 after threatening for days to defy the Supreme Court by using an executive order to add a citizenship question to the census, Trump announced that he will cease his pursuit. However, by issuing an executive order Trump is directing federal agencies to obtain citizenship data through other means, like administrative records and more limited surveys.
At the press conference, Trump acknowledged a shot across the bow of the American people from the Supreme Court in the case of RUCHO ET AL. v. COMMON CAUSE ET AL. {2}, which basically gave Trump and the Republican Party the license to gerrymander at will. According to Trump:
“Some states may want to draw state and local legislative districts based upon the voter eligible population,”… “Indeed, the same day the Supreme Court handed down the census decision; it also said it would not review certain types of districting decisions, which could encourage states to make such decisions based on voter eligibility.”
Attorney General William Barr continued:
“That information will be used for countless purposes, as the president explained in his remarks today,” “…For example, there is a current dispute over whether illegal aliens can be included for apportionment purposes. Depending on the resolution of that dispute, this data may be relevant to those considerations. We will be studying this issue.”
Trump’s purpose for collecting citizenship data is to encourage states to draw new Congressional districts based upon the population of eligible voters instead of the total population which is the way that the constitution mandates the census be taken. Now, along with the announcement made by the Supreme Court on the same day of the census citizenship question that the Court will not hear certain types of redistricting cases, the Republicans have been given a green light to gerrymander districts as they please. This means that certain citizens such as children, former felons, people illegally purged from voter rolls and others who have been denied the right to vote will not be able to receive representation in Congress. Republicans will be able to draw congressional district lines so that elected officials can select just who they will represent instead of the people being able to select their representatives. They will also be able to draw district lines in such a manner as to group residents based upon any criteria that the Republicans desire. Districts can be drawn in such a manner that would dilute minority voting power and strengthen white voting power.
In RUCHO ET AL. v. COMMON CAUSE ET AL. {2}, the Republican-controlled court voted strictly down party lines in a 5-4 decision. The Supreme Court has barred any legal challenges to partisan gerrymandering. Chief Justice Roberts wrote: “We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.”
In a very passionate dissent from the bench, Justice Elena Kagan said that American democracy will suffer due to the Court’s ruling:
“The practices challenged in these cases imperil our system of government,” she said. “Part of the court’s role in that system is to defend its foundations. None is more important than free and fair elections.”
Adding that she was “deeply saddened” by the ruling she was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor.
On behalf of the Republican Justices, Chief Justice Roberts wrote:
“Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution and no legal standards to limit and direct their decisions,”
In the opinion provided by the 4 dissenting Justices, Justice Kagan said “the court had abdicated one of its most crucial responsibilities.
“The only way to understand the majority’s opinion,” she wrote, “is as follows: In the face of grievous harm to democratic governance and flagrant infringements on individuals’ rights — in the face of escalating partisan manipulation whose compatibility with this nation’s values and law no one defends — the majority declines to provide any remedy. For the first time in this nation’s history, the majority declares that it can do nothing about an acknowledged constitutional violation because it has searched high and low and cannot find a workable legal standard to apply.”
This decision by the Republican Justices immediately disenfranchises millions of citizens. In some states that have recently re-instituted voter suppression and gerrymandering activities due to the Court’s gutting of the Voting Rights Act in 2013 by the Court’s decision in Shelby County v. Holder {3}, this is a signal that many Jim Crow styled laws will now be permitted by the Courts. Officials in Shelby County, Alabama, sued in federal court over Section 5 of the Voting Rights Act, the part of the law that requires states with a history of racial discrimination to get any changes to their voting laws or procedures cleared by either the Justice Department or by a federal court. Another section of the law, Section 4, outlined a formula that defined which areas of the country were subject to the law. Supreme Court Justices ruled in a 5-4 decision that the formula for determining which states need preclearance from the DOJ was too broad. The Supreme Court did not strike down preclearance as unconstitutional.
In a June 2018 ruling, in Husted v. A. Philip Randolph Institute {4} the Court ruled that the State of Ohio could purge voters from their rolls if registered voters miss voting for two years, they are sent registration confirmation notices. If they do not respond and do not vote over the following four years, they are purged. In 2015, Ohio purged hundreds of thousands of people, mostly ethnic minorities from the voter rolls, have continued these policies since then and now thanks to the partisan Republican-controlled Supreme Court, Ohio will continue these activities into the foreseeable future.
When the effects of these Supreme Court rulings are placed in context to racist Republican Party policies, state-level gerrymandering and voter suppression campaigns in Republican-controlled states, a clear pattern of ideological corruption favoring Republican partisanship is easily identifiable as being the agenda of the Republican Justices that sit on the highest court of the land. Such corrupt intent is more than just a threat to our democracy. It stinks of a coup attempt masked under the guise of a supposedly nonpartisan and unbiased branch of government, the Judiciary. It is proof that our government has been corrupted by special interest and that the courts have been bought and paid for by Trump and other billionaires like him that have purely racist agendas and are violating sacred trusts to “Make America White Again” and keep it that way. Like the founding fathers who were all white and determined that Black people were 3/5s of a human being, Trump and the Republican Justices have proven that they believe the constitution and this country are “for white’s only.”
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Linked Sources and Documentation
- Department of Commerce v. New York: https://www.supremecourt.gov/opinions/18pdf/18-966_bq7c.pdf
- RUCHO ET AL. COMMON CAUSE ET AL: https://www.supremecourt.gov/opinions/18pdf/18-422_9ol1.pdf
- Shelby County v. Holder: https://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf
- https://www.supremecourt.gov/opinions/17pdf/16-980_f2q3.pdf
- The three fifths compromise: Article I, Section 2 of the U.S. Constitution states: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”
Copyright © 2019, Glen Reaux, all rights reserved
