Public Domain / Carol Highsmith
In a single day last week, the U.S. Supreme Court issued two anxiously awaited rulings – both by 5-4 votes, with Chief Justice John Roberts writing the majority opinions – that could have particularly high impacts on Texas and San Antonio. Media reports suggested that the decisions were split, with the high court’s (and nation’s) conservatives winning on one of the cases and the liberals winning on the other. I disagree.
Clearly, conservatives – more specifically, Republicans – won the decision regarding gerrymandering. The five-member conservative bloc ruled that no matter how bad the gerrymandering is, the courts have no role in policing the way congressional and other political lines are drawn. This was despite the fact that the cases before them included egregious, almost amazing, examples.
In North Carolina, Republicans won nine of 13 congressional seats last November despite winning just 50 percent of the statewide vote in those races. They would have won 10 seats but one result was thrown out because of election fraud on behalf of the Republican winner’s campaign.
Republican leaders were not shy about why the results were so lopsided.
State Rep. David Lewis, a Republican legislator who played a key role in drawing the congressional lines, said the reason they were designed to elect 10 Republicans was because “I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”
It’s not just Republicans who gerrymander egregiously. In Maryland congressional races last November, Republicans won 32 percent of the vote but only one of the state’s eight seats. But Republicans are willing to tolerate Maryland because they control 30 state legislatures compared to only 18 in Democrat hands.
Texas’ congressional seats are gerrymandered, if not so effectively as those in North Carolina or Maryland. Last November, when U.S. Sen. Ted Cruz headed the ticket and won less than 51 percent of the vote, Republicans carried 23 of the state’s 36 congressional seats, or 64 percent. Two years earlier, when President Donald Trump won 52 percent of the Texas vote, Republicans carried 69 percent of the congressional seats.
Since the lines were drawn after the 2000 census all but three of the 36 Texas congressional districts have remained in the hands of one party. This is truly a case of politicians choosing their voters, not vice versa.
With last week’s Supreme Court decision in place, Texas legislators will feel free to be even more aggressive in the next redistricting round. And they will have the use of computer software even more powerful.
In the second Supreme Court ruling last week, Roberts sided with the court’s four liberal judges in support of lower courts that had ruled that the Trump administration could not ask on census forms whether each member in a household is a U.S. citizen.
Roberts agreed with several lower-court judges that Commerce Secretary Wilbur Ross, whose agency is in charge of the census, lied when he told a congressional committee that the only reason for the question was that the Justice Department needed the information to enforce the Voting Rights Act.
In fact, it came out in the litigation that Ross had made up his mind to include the question and then asked the Justice Department to provide a memo saying it was needed, even though the U.S. Census Bureau had gotten along without that question for the more than 50 years since the Voting Rights Act was passed.
Considerable evidence pointed to the real reason: that as one Republican expert wrote in a memo, the question would be “advantageous to Republicans and non-Hispanic whites” in the allocation of congressional seats and federal largesse. The reason, as the government’s own experts projected, is that as many as 6.5 million people may not be counted if the citizenship question is asked, given the fear among immigrants and their families in the current political atmosphere.
That could be especially harmful to Texas as one of the fastest-growing states and San Antonio as one of the fastest-growing cities. The state is projected to get three more members of the House of Representatives, and it wouldn’t be unreasonable to think one of them would be in the San Antonio area.
Roberts did not directly accuse Ross of lying. He used euphemisms. He wrote that the evidence “does not match” the explanation. The stated reason “seems to have been contrived.” The explanation was “incongruent with what the record reveals.”
But even though he found that Ross had lied, Roberts didn’t simply rule that the citizenship question could not be part of the census. Instead, in a move I suspect the four liberal justices would not have gone along with if they had not needed the chief justice’s vote, Roberts sent the case back to the lower courts and invited the administration to come up with a better rationale. In other words, the lie was too clumsy, too lazy. They need to try harder, come up with a better lie.
That’s why I don’t agree with the suggestion that the liberals won in the census case. They won this round, but Roberts offered the Trump administration what lawyers call “another bite at the apple.”
It is, sadly, almost refreshing in today’s atmosphere that a majority of the court found that at least some lies are unacceptable. But it was an appallingly tentative finding.
Writing in dissent, Justice Samuel Alito had this to say: “The federal judiciary has no authority to stick its nose into . . . whether the reasons given by Secretary Ross for that decision were his only reasons or his real reasons.”
Really? Even when Ross made those statements under oath before Congress and the administration made them in court filings? We have become inured to the truth being irrelevant in the White House. It now appears to have only tenuous value at the Supreme Court.