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Supreme Court ends term with major rulings on census, gerrymandering

The Supreme Court ended its term with two major rulings that could have long-running implications for fundamental U.S. political processes. It blocked a census citizenship question, at least for now, and declared federal courts have no role in policing partisan gerrymandering. NPR’s Hansi Lo Wang and Stu Rothenberg of “Inside Elections” join Jeffrey Brown and National Law Journal’s Marcia Coyle.

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  • Judy Woodruff:

    As we noted, the U.S. Supreme Court ended its term today, laying down decisions that could have long-running implications for the nuts and bolts of our country's political processes.

    Jeffrey Brown explores what it might mean.

  • Jeffrey Brown:

    We will look at the two key Supreme Court decisions of the day.

    To help with the census case, we're joined by Hansi Lo Wang of NPR and, for gerrymandering, Stuart Rothenberg of Inside Elections. And here for both, of course, is our own Marcia Coyle, chief Washington correspondent for "The National Law Journal."

    Welcome to all of you.

    Hansi, let's start with the census case first.

    Remind us briefly what it is that the Trump administration said in calling for the citizenship question.

  • Hansi Lo Wang:

    The Trump administration has said it wants this citizenship question, is this person a citizen of the United States, on census forms, in order to have more detailed citizenship data, to better enforce part of the Voting Rights Act, specifically to better enforce protections against discrimination of racial and language minorities.

  • Jeffrey Brown:

    So, Marcia, today, the court said, we're putting this decision on hold, a decision by the chief justice.

  • Marcia Coyle:

    Right.

    This decision came in a case that was brought by the state of New York and the New York Immigration Council. They challenged the secretary — commerce secretary's citizenship question decision, saying it was an arbitrary and capricious decision that violated a federal law known as the Administrative Procedure Act.

    After a trial, a New York federal judge found that there were violations. And, in particular, the critical issue in the Supreme Court case today was the reason given by Secretary Ross for the citizenship question.

    He said, as Hansi just said, that it was necessary to mainly enforce the Voting Rights Act. The trial judge found and the Supreme Court today in a 5-4 opinion agreed that this was a pretextual decision.

  • Jeffrey Brown:

    Five-four, and notable, but the chief justice with the liberal wing.

  • Marcia Coyle:

    A rare alignment. That's correct.

    The chief justice wrote the opinion. He said looking at all the evidence that the trial judge had accumulated during the trial told a story that didn't match the secretary's reason. The federal law requires a genuine justification for important decisions.

  • Jeffrey Brown:

    OK. Tell us about the dissent.

  • Marcia Coyle:

    There were really two dissents.

    Justice Clarence Thomas wrote that this was first time the court had invalidated an agency decision as pretextual. And he warned that the court had opened a Pandora's box of legal challenges to agency decisions as pretextual.

    Justice Alito, he wrote that he believed that the question of a citizenship question was committed by law to the sole discretion of the commerce secretary, and there was no judicial review allowed.

  • Jeffrey Brown:

    So, I think we're having some technical trouble with Hansi in New York.

    Sorry, Hansi.

  • Jeffrey Brown:

    But — so, let me continue with you, Marcia.

    Where does this leave things then?

  • Marcia Coyle:

    OK.

    The majority said that it was upholding the trial judge's ruling that the case had to be remanded to the commerce secretary to see if he could provide a genuine justification for the citizenship question.

    Now, Jeff, there has been a lot going on in the last week around this case. There…

  • Jeffrey Brown:

    New evidence keeps coming up. Yes.

  • Marcia Coyle:

    Absolutely.

    And there is a case ongoing in Maryland where a trial judge there is going to reopen the record in order to consider the new evidence that allegedly the commerce secretary wanted this question for a discriminatory purpose, to dilute the votes of Hispanic and immigrant communities.

    The New York judge also has several motions before him concerning the citizenship question. The government — the Trump administration had told the Supreme Court that it needed a decision on this by June 30 in order to finalize the census questionnaire.

    There were some expert testimony that the really hard decision for getting the questionnaire out was in October.

  • Jeffrey Brown:

    Yes.

  • Marcia Coyle:

    So we don't know what is going to happen.

  • Jeffrey Brown:

    We don't know.

    But, in the meantime, the president put out a tweet today — we have a graphic of that — in which he's proposing that the entire census be delayed.

  • Marcia Coyle:

    Well, I'm sure that's going to cause some considerable confusion and problems for the Census Bureau itself.

    This is a huge undertaking, as far as I understand the process, although I'm sure the bureau does have a questionnaire ready, maybe one with a citizenship question and maybe one without. But I don't know.

  • Jeffrey Brown:

    OK. Let's move on to the gerrymandering case.

    And, Stu, first, again, set the scene for us. Remind us why this has become — these cases became so important.

  • Stuart Rothenberg:

    Well, gerrymandering, of course, has been an issue in the country going back to the beginning of the republic.

    But more recently, with the new technologies, computers, the ability for partisans to draw lines, districts where they know who lives in what house and on what street, they can create districts that really maximize their party's electoral prospects. And they do so in a way that the districts look bizarre.

    They look like three-legged giraffes playing a clarinet.

  • Jeffrey Brown:

    Yes.

  • Stuart Rothenberg:

    And so…

  • Jeffrey Brown:

    And it's both Democrats and Republicans.

  • Stuart Rothenberg:

    Democrats and Republicans, right. And this involves two cases. One was a Democratic gerrymander. And the others are Republican gerrymander.

    And many people have been concerned that the partisan nature of this drawing distorts what the voters actually believe, and also, maybe even more important, creates districts that are very partisan and very ideological, and shortcuts the number of competitive districts that we have.

  • Jeffrey Brown:

    So, Marcia, again a 5-4 decision, again written by the chief, but with a conservative coalition this time.

  • Marcia Coyle:

    Right. This time, they were ideologically divided, the way that they generally are.

  • Jeffrey Brown:

    Yes.

  • Marcia Coyle:

    This case had — the justices had really a Republican-drafted redistricting map from North Carolina before them and a Democratic-drafted redistricting map from Maryland before them.

    Both maps were challenged as violating the Equal Protection Act of the 14th Amendment, as well as First Amendment. The chief — the five-majority court decided that the federal courts really have no role in trying to decide whether partnership goes so far in redistricting that it violates the Constitution.

  • Jeffrey Brown:

    Stay out of the politics of this, yes.

  • Marcia Coyle:

    Exactly.

    The chief justice, he went — he did a very workmanlike decision in which he looked at the Constitution, he looked at court precedents. He looked at what states were doing. And he said basically, we can't find a manageable, bright standard by which you can measure excessive partnership. This is a political question that the political branches, Congress and the legislature, should deal with.

  • Jeffrey Brown:

    Now, this brought a very strong dissent from Justice Elena Kagan, which she read out loud from the bench, which is also a little unusual.

  • Marcia Coyle:

    It is. It's a sign of how strongly the writer feels.

    And it was an impassioned dissent, in which Justice Kagan said that excessive partnership in redistricting really debases our democratic process.

  • Jeffrey Brown:

    Yes, very strong and emotional language.

  • Marcia Coyle:

    Yes, it was.

    And she said, why don't you just look at what the courts have been doing around the country? They're doing what we today, the Supreme Court say, can't do. And she pointed to how those courts that have faced these challenges have come up with ways to discern when there is too much partnership to violate the Constitution.

  • Jeffrey Brown:

    Yes.

    Well, that brings me back to Stu, because the chief also said the political system can work this out, right? So what are we seeing happening around the country?

  • Stuart Rothenberg:

    Well, some states already have nonpartisan or bipartisan commissions that draw the lines and take — allegedly take it out of the hands of elected officials.

    We have had a number of states that have enacted new legislation, again creating commissions in places like Colorado, Michigan, a very controversial state, and Ohio. They are going to change the process.

    The problem is, most of these measures are put on the ballot by the voters. And not all allow states allow initiatives and referendums to post ballot measures. And so, some states, the voters don't have the opportunity to go to the legislature and say, look, we want this — we want to change the way that the lines are drawn.

    But there is a movement I think in the country generally, because people are offended by the lines. They're absurd and ridiculous. And clearly one party is beating the other over the head. And that's not what the democratic system is about.

  • Jeffrey Brown:

    Just about 30 seconds, Marcia.

    I just want to ask you, because this was a case where the resignation of Justice Kennedy made a difference perhaps?

  • Marcia Coyle:

    It could have.

    Justice Kennedy had always held the door open in prior partisan gerrymandering cases for the possibility that the court would find a manageable standard that courts could use.

    But with his retirement from the court and his replacement with Justice Brett Kavanaugh, who joined the majority today in basically closing the door on these challenges, that did make a difference.

  • Jeffrey Brown:

    All right, Marcia Coyle, "National Law Journal," Stu Rothenberg, Inside Elections.

    Apologies to Hansi Lo Wang in New York from NPR.

    Thank you all very much.

  • Marcia Coyle:

    Thank you.

  • Stuart Rothenberg:

    A pleasure, Jeff.

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