Feds Producing Data For States To Do Anti-Immigrant Redistricting Overhaul

UNITED STATES - MARCH 14: Commerce Secretary Wilbur Ross testifies during a House Oversight and Reform Committee hearing in Rayburn Building discuss preparations for the 2020 Census and citizenship questions on Thursday March 14, 2019. (Photo By Tom Williams/CQ Roll Call)
Commerce Secretary Wilbur Ross (Photo By Tom Williams/CQ Roll Call)
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Commerce Secretary Wilbur Ross has directed the Census Bureau to prepare to offer states the data they’d need to do a redistricting overhaul that would boost “Republicans and Non-Hispanic Whites,” in the words of a deceased GOP consultant.

That the administration is taking that step is not surprising, given that President Trump said that it would last week while announcing that the 2020 census would not have a citizenship question.

But the government formally put that intention in writing in a regulatory notice that was published over the weekend.

The document was an update to a previous notice about the the government’s plans for the 2020 census that confirmed that the survey would not include a citizenship question due to the Supreme Court decision blocking it.

“Accordingly, the Secretary has directed the Census Bureau to proceed with the 2020 Census without a citizenship question on the questionnaire, and rather to produce Citizenship Voting Age Population (CVAP) information prior to April 1, 2021 that states may use in redistricting” the new version of the notice said.

The new notice was dated July 3 though it appears to have only been published on Friday. (Neither the Commerce Department or the Census Bureau responded to TPM inquiries about the backdating.)

Trump last week signed an executive order directing the Commerce Department to compile citizenship data using existing records held by various agencies. The Bureau, however, was already working on such a compilation in response to Ross’ March 2018 decision to try to include a citizenship question on the census. The government has also previously indicated that it was considering offering citizenship data to states for redistricting. A separate federal notice is still expected to formally announce that the citizenship data will be on the redistricting file given to states in 2021, after the 2020 census.

While civil rights advocates obtained a major victory in winning the legal fight over the census citizenship question, the stage is already being set for the next court battle.

The Trump administration is preparing to help red states undertake a GOP-friendly overhaul of redistricting.

The idea would be for states and local jurisdictions to draw districts in a way that would exclude noncitizens from the count (using data known as Citizenship Voting Age Population or “CVAP”). Right now legislative districts are almost universally drawn using total population, meaning that each district has roughly the same number of total people, regardless of whether they are citizens or not.

Equalizing districts based on CVAP, rather than people, would be an electoral boon for Republicans, as the late GOP gerrymandering consultant Thomas Hofeller studied in 2015.

It “would be advantageous to Republicans and Non-Hispanic Whites,” while reducing the number of seats that Latino-heavy areas — which lean Democrat — would receive, Hofeller found in the secret study, prepared for a GOP donor.

Another analysis released publicly around the same time, by a City University of New York-Queens professor, said that using CVAP would change legislative maps in a way that would “substantially favor increasing the number of Republican-dominated districts.”

The studies were conducted while a lawsuit was making its way through courts seeking to require that states use CVAP rather than total population to draw state legislative districts.

The Supreme Court said in a 2016 unanimous opinion in the case, Evenwel v. Abbott, that use of total population was permissible. But the opinion didn’t address the question of whether CVAP could also be used.  Justice Clarence Thomas said in a concurrence that states should have the choice to use such a metric, while Justice Samuel Alito issued a concurrence of his own calling for another legal case to resolve this “important and sensitive”question.

It appears the groundwork is being laid for such a test case to be sent to the Supreme Court, which has shifted to the right — with the additions of Justices Neil Gorsuch and Brett Kavanaugh — since the Evenwel decision.

If the Census Bureau does give the states data on citizenship for redistricting, the next step would be for a state or a local jurisdiction to then draw its districts using CVAP rather than total population. Such a move would almost certainly invite a legal challenge.

Some states have also already considered legislation that would let them exclude noncitizens from redistricting come 2021.

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