by David B. Rivkin, Jr., and Richard Raile

24 April 2019 in the Wall Street Journal

The Supreme Court Tuesday will hear oral arguments in the Trump administration’s appeal of lower-court orders forbidding it to ask a citizenship question in the 2020 census. The justices’ task in Department of Commerce v. New York won’t be difficult: The law and facts overwhelmingly support the administration. But the case is a proxy for future battles over redistricting and reapportionment, vital components of American democracy that determine the balance of political power within and among states.

The Census Act grants the commerce secretary discretion to conduct the census “in such form and content as he may determine.” In rejecting the citizenship question, the lower courts usurped that authority and frustrated Congress’s intent. The question about citizenship is far from unprecedented: It was asked in every census but one from 1820 to 1950. Most advanced democracies ask for citizenship information in censuses, a United Nations-recommended best practice.

The administration argues that the citizenship data would help in enforcement of the Voting Rights Act, and that is manifestly true. By law, “majority minority” districts must be drawn so at least 50% of eligible voters—i.e., citizens over 18—are members of the minority in question. If too many minority residents are ineligible to vote, that defeats the purpose of avoiding the dilution of minority voting strength. Voting-rights litigation and compliance are hampered by the lack of citizenship data in the decennial census.

The plaintiffs in this case, which include 18 states and the District of Columbia, are using the litigation as a means of stifling the legal and policy debate over whether and how citizenship information should be used in redistricting and reapportionment. Read more »

By David B. Rivkin Jr and Richard Raile

26 March 2019 in the Wall Street Journal

Not every day does the Supreme Court have a chance to advance democracy and reverse a major mistake while also lightening its future workload. But it can do all those things in two cases it hears Tuesday dealing with gerrymandering of congressional districts.

In Davis v. Bandemer (1986), six justices agreed that courts can resolve complaints about so-called partisan gerrymandering, the drawing of district lines to favor the party that controls the process. In legal parlance, the justices held that such complaints are “justiciable.” But no five justices were able to agree on what legal principles courts should apply in deciding such cases. That question has been litigated ever since, including this week’s cases, Rucho v. Common Cause and Lamone v. Benisek. The court should put an end to this futile experiment by ruling that such claims are nonjusticiable political questions.

Electoral maneuvering, of which gerrymandering is one example, is as old as democracy itself. One of the more colorful examples is the English rotten boroughs system, which allowed the Crown and its supporters to control a substantial number of seats in the House of Commons until the passage of the Reform Act of 1832. Partisan gerrymandering strikes many observers as unfair, but it’s not clear what constitutional provision it might violate. The Constitution itself doesn’t even anticipate the existence of political parties.

The Constitution does address the question of who has the power to draw district lines. Article I, Section 4 provides that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” But the framers understood that what Alexander Hamilton called the “discretionary power over elections” entailed the danger, noted by James Madison, that legislatures might “mould their regulations as to favor the candidates they wish to succeed.” Hamilton went even further, saying unlimited state legislative authority over congressional elections would entail the power to “annihilate” the federal government.

Thus the same section also provides that “Congress may at any time by law make or alter such regulations.” That this delegation of power to Congress was the response to the possibility of abuse is powerful evidence that the Framers addressed the problem through the structural balance-of-power provisions and that a judicial check on legislatures’ politics is unavailable. Because the Framers agreed that a national election code was unworkable and that a benefit inhered in state legislatures’ ability to address local needs and traditions, they chose not to codify standards in the constitution. Read more »