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Today was a big day for democracy. Here’s a look at the Supreme Court decisions and what’s next.


6/27/2019

Today’s Supreme Court actions reached markedly divergent decisions on two cases in which there were questions of whether the government acted in bad faith. In the redistricting case, Rucho v. Common Cause, the Supreme Court essentially said it cannot rule on when partisan gerrymandering goes too far because that is a political question, and the court does not decide political questions. As Justice Kagan points out in her dissent, “the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.” Yet, in the census case, Department of Commerce v. New York, the Supreme Court ruled that the government must disclose the reason for its decision to add a citizenship question to the census and the Court found that the reason given by the government was not credible.

For those of us concerned about the health and inclusivity of our democracy, this is a day of mixed reactions. Here’s my quick take on what today’s decisions mean and what’s next.

Redistricting: What’s next in the fight for #FairMaps

The fight against partisan gerrymandering has always been a multi-front war. While today’s loss is deeply disappointing, it only took away ONE of the tools to achieving reform. The other tools are still available.

  • Five states passed redistricting reform in 2018. Another two have this year. More efforts are underway. In short, the tide of public opinion is turning.
  • Congress has the power to fix congressional redistricting.
  • A variety of state reform options remain available: Litigation under state law (like PA), ballot issues and legislation to change who draws the lines and what rules they must follow, even decisions made by state officials committing to a more open and fair process.

Today’s Supreme Court decision means we need to work harder to use these remaining tools to stem the threat of extreme gerrymandering that seeks to nullify voters.

To the #FairMaps reformers who’ve worked so hard to bring the federal cases, yes today is disappointing but we’ll still get there. I’ve always believed these lawsuits have value beyond whether we win or lose in court. They uncover what really happened behind closed doors. They tell the public story of dirty dealing to deny true democracy to voters.

Your work made the state reform wins last year possible. It helped to shift public opinion, turned gerrymandering into a dirty word, and created the political will among state officials to do better. None of that would have been possible without you..

Census: It’s time to put the citizenship question behind us and move forward

The court’s decision was mixed:

  1. The Commerce Department does have the discretion to decide to add a citizenship question (plaintiffs lost / government won on that point); but
  2. The government is required to disclose the rationale for the decision. And in this case, the Supreme Court said the reason given by the government was not credible – agreeing with the lower court’s finding that the reason given was clearly a pretext (plaintiffs won / government lost).

Bottom line is that, for now, the citizenship question is OFF the census, because the Supreme Court didn’t believe the reason given by the government. That’s a very important win.

Theoretically, the Commerce Department could go back and try to put forward a different rationale, but it’s highly unlikely. The government may have a hard time coming up with one that passes muster, especially in light of the Hofeller documents. There likely isn’t enough time, as the Census Bureau has said it needs to start printing census forms on July 1, 2019.

Notably, there was no mention of the discrimination claim that came up in the Maryland case.

In light of today’s decision and the unrelenting timetable, groups working to support census community outreach efforts are saying it’s time to put the citizenship question dispute behind us and move forward with preparations for next year’s census.

I agree. Despite today’s developments, the goal remains the same – to do all we can to ensure a complete count. The stakes for our country and our region are high, as we are home to some of the hardest-to-count communities. The Joyce Foundation is committed to doing our part to support a successful census.