What is most notable about the case is, in fact, the devastating dissent by Kagan. She points out that the court was so eager to duck the case, it did not understand what the plaintiffs wanted, did not acknowledge what has already been done and shirked its constitutional obligations.
Kagan points out that the majority does not dispute that what happened in North Carolina and in Maryland are gross constitutional violations that go to the heart of our democracy. “The majority disputes none of this. I think it important to underscore that fact: The majority disputes none of what I have said (or will say) about how gerrymanders undermine democracy. Indeed, the majority concedes (really, how could it not?) that gerrymandering is ‘incompatible with democratic principles.' ” However, by assuming the plaintiffs were looking for proportional representation or some fuzzy notion of fairness, the court entirely missed the boat.
As for the majority’s argument that a uniform standard for determining extreme gerrymandering would be impossible, Kagan patiently explains:
What it says can’t be done has been done. Over the past several years, federal courts across the country — including, but not exclusively, in the decisions below — have largely converged on a standard for adjudicating partisan gerrymandering claims . . . . And that standard does what the majority says is impossible. The standard does not use any judge-made conception of electoral fairness — either proportional representation or any other; instead, it takes as its baseline a State’s own criteria of fairness, apart from partisan gain. And by requiring plaintiffs to make difficult showings relating to both purpose and effects, the standard invalidates the most extreme, but only the most extreme, partisan gerrymanders.
In essence, we now know how to feed all the information incorporating the factors the state says should be taken out except partisan advantage and generate thousands of variations. In this case, all 3,000 variations in the North Carolina case were less partisan than the proposed plan.
The court isn’t being asked to make subjective or close calls, it is being asked to find that there is a point at which, yes, gerrymandering goes too far. (By the way, courts make subjective judgments all the time in constitutional matters with complex multi-part tests, which makes this new-found modesty surprising.)
So the court didn’t understand what it was asked to do and didn’t understand what is technologically in practice today. Instead, it gives up on judicial review, Kagan writes:
The plaintiffs objected to one specific practice — the extreme manipulation of district lines for partisan gain. Elimination of that practice could have led to proportional representation. Or it could have led to nothing close. What was left after the practice’s removal could have been fair, or could have been unfair, by any number of measures. That was not the crux of this suit. The plaintiffs asked only that the courts bar politicians from entrenching themselves in power by diluting the votes of their rivals’ supporters. And the courts, using neutral and manageable — and eminently legal — standards, provided that (and only that) relief. This Court should have cheered, not overturned, that restoration of the people’s power to vote.
Kagan declared that members of the court agreed that there was an alarming constitutional violation, but then shirked their duty to do something about it. “Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent.”
This simply is one of the most compelling dissents I’ve read in years. The outrage expressed in mostly progressive quarters (because, let’s face it, Republicans have given up on democracy) should be confined to the intellectual honesty of the majority; however, this is not the end of our republic (as re-electing President Trump might be).
What would have been a true calamity — allowing an intentionally rigged census count designed to favor whites — was thankfully avoided in the other big opinion of the day, a uniquely embarrassing decision for the administration that was caught hiding the truth. (By the way, given the reasoning of Chief Justice John G. Roberts Jr., why did the court choose last term to accept the administration’s blatantly false denial of religious bias in the Muslim ban case as essentially unreviewable?)
In an opinion written by Roberts, the court found that some lies are so egregious and so insulting that the court has to call foul. Well, he didn’t actually say it that way.
Instead, he wrote, “The District Court concluded that the evidence at trial established a sufficient likelihood that the reinstatement of a citizenship question would result in noncitizen households responding to the census at lower rates than other groups, which in turn would cause them to be undercounted and lead to many of respondents’ asserted injuries. For purposes of standing, these findings of fact were not so suspect as to be clearly erroneous.”
So far, so good. He continued, finding as lacking Commerce Secretary Wilbur Ross’s assertion that he needed to include the question to respond to the Justice Department’s expressed need to enforce the Voting Rights Act. (It takes nerve to use that as an excuse when your purpose is to discriminate). “That evidence showed that the Secretary was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process. In the District Court’s view, this evidence established that the Secretary had made up his mind to reinstate a citizenship question “well before” receiving DOJ’s request, and did so for reasons unknown but unrelated to the VRA.” So Ross lied. Or as Roberts put it:
Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision. In the Secretary’s telling, Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency). And 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. We are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process. It is rare to review a record as extensive as the one before us when evaluating informal agency action — and it should be. But having done so for the sufficient reasons we have explained, we cannot ignore the disconnect between the decision made and the explanation given.
(Congress should proceed with impeachment hearings for Ross, since his “incongruent” — i.e., false — excuse was also given in testimony to Congress. He lied to lawmakers. Period.)
The court then sent the case back to the district court for more discovery, where, by the way, it will consider newly found computer files that make explicit the nefarious purpose of the citizenship question. It’s difficult to see how this can be resolved before the 2020 Census must begin.
Our constitutionally-illiterate president asked (by tweet — how else?) whether the Census could be delayed. I know it is quaint, but the Constitution explicitly says we must do one every 10 years. (Then again, it also says “no emoluments” and lots of other things Trump regularly ignores.)
In short, there is a point at which even this court cannot play along with the blatant dishonesty and discriminatory motives of this administration. If only, the justices didn’t set the bar so high to intervene in defense of the Constitution. Nevertheless, a win is a win for fairness and equal protection. I’ll take it.