Talk about gaming the system. Gerrymandering is bad enough; anyone who has read this blog for very long has encountered my periodic rants and explanations of how legislators choose their voters in order to ensure that the voters don’t get to choose their legislators.
I actually came across another example recently, one of which I had previously been unaware–prison gerrymandering.
Prison gerrymandering occurs because the census counts incarcerated people as residents of the towns where they are confined, even though they can’t vote while imprisoned and most return to their homes after being released. Census data is the basis of redistricting at all levels of government, so the specific location of populations is critically important. Thanks to the drug war, among other counterproductive policies, the United States has an enormous prison population. Counting prisoners in the wrong place undermines the Supreme Court’s requirement that political power be apportioned on the basis of population.
As the Prison Gerrymandering Project puts it, the process of drawing fair and equal districts fails when the underlying data are flawed.
Which brings us to the critical importance of the census.
The Supreme Court recently heard oral arguments in an appeal from lower court rulings prohibiting the Census Bureau from adding a citizenship question to the upcoming census. Observers reported that the five conservative judges seem likely to reverse the lower courts’ three separate decisions, all of which found the question and the manner of its addition illegal.
If they do, it will be a nakedly political decision and will further undermine what is left of this Court’s legitimacy.
Why do I say that?
First of all, because there is no legitimate reason to ask the question. The census is supposed to count “heads”–the number of people in a given area. There is no current use of census data that requires knowing how many of those residents are citizens. (Wilbur Ross’ lame justification was that this information would somehow protect the voting rights of African-Americans. Not only is there no logical nexus between that goal and the census, this administration has not previously shown any solicitude for the rights of minority voters–quite the contrary.)
There is, of course, a different and blatantly obvious reason Republicans want to add the question: it will hurt Democratic cities and states and benefit Republican ones.
Experts, including several who previously headed the census bureau, have testified that addition of a citizenship question would significantly reduce the response rate of immigrants, both legal and illegal. The undercounts that result would be the basis of the 2021 redistricting, and would reduce the political power of states with large numbers of immigrants, most of which lean Democratic. (The exception is Texas, which sets up an interesting dynamic.)
The Census is also the basis upon which federal monies are distributed back to cities and states for multiple program purposes. Guess which ones would get more and which less?
The three federal judges who have considered the issue have all ruled that Ross failed to follow the legal procedures governing the addition of a question to the Census.
In one of those decisions–a 277 page enumeration of the flaws in Ross’ attempt to subvert the accuracy of the count–the judge found that the addition of the citizenship question was “unlawful” because of “a veritable smorgasbord of classic, clear-cut” violations of the Administrative Procedure Act, including cherry-picking evidence to support his effort.
“To conclude otherwise and let Secretary Ross’s decision stand would undermine the proposition — central to the rule of law — that ours is a ‘government of laws, and not of men,’ ” Furman wrote, quoting one of the country’s Founding Fathers, John Adams.
There are two pending cases in this year’s Supreme Court term that will go a long way toward affirming or destroying the rule of law in our country: the combined partisan gerrymandering cases from Maryland and North Carolina, and the Census case.
The fundamental issue in both is whether America will insist on fair elections in which all citizens’ votes count, or whether partisans will be allowed to continue gaming the system.