Tierney Sneed

Tierney Sneed is a reporter for Talking Points Memo. She previously worked for U.S. News and World Report. She grew up in Florida and attended Georgetown University.

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I wrote today about how if the Trump administration wins its current legal fight over the census citizenship question, the next big legal fight will be about whether that citizenship data can be used to exclude non-citizens from redistricting.

A similar case was 2016’s Evenwel v Abbott, in which the Supreme Court unanimously said that states are allowed to use total population — the metric almost universally used now — to draw state legislative districts. It didn’t answer the question of whether states are required to use total population. In concurrences, Justice Clarence Thomas said that states should be able to use which metric they use and Justice Samuel Alito said that it was an important question that another court case will need to decide.

Justin Levitt, who served in the Obama DOJ’s civil rights division and is now a Loyola Law School professor, told me that he thinks that there “are several votes” on the Supreme Court to let states exclude non-citizens from redistricting.

But I don’t know if there are five,” he said.

An argument he and others will push, if there is a legal fight over excluding non-citizens from redistricting, is the coherent system it will create. The Constitution mandates that that congressional apportionment — i.e. the number of U.S. House seats each state gets — be based on the “whole number of persons in each State.”

“When we are allocating those, the Constitution makes it 100 percent clear that we go by total population, not by citizens or eligible voters or citizen vote-age population, but all persons,” Joseph Fishkin, a Texas Law professor, told me. “It creates some very strange effects if you start to say jurisdictions use that rule because that’s in the Constitution for allocating House seats to states, but inside states, now all of the sudden, we are going to start allocating those same house states or maybe political power through the statehouses through some completely different method.”

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If the Trump administration wins its fight to add a citizenship question to the census, it will clear the way for Republicans to execute a major power grab they’ve sought for years that could entrench their electoral advantage with rural whites while undermining the representation of urban and diverse populations.

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Georgia Secretary of State Brian Kemp (R) on Sunday proved the old saying “no good deed goes unpunished” by taking concerns flagged for his lawyers about potential cyber vulnerabilities in the state’s voter registration website and turning it into an unfounded claim that Democrats had tried to hack the system.

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Georgia continues to be the site of some major voting rights battles, as its Secretary of State Brian Kemp (R) faces off against Georgia House Minority Leader Stacey Abrams in the governor’s race.

The latest shenanigans have to do with concerns about a potential data vulnerability that was identified by a voter late last week and was passed on to Kemp, who has been sued over his office’s failure to address similar election security issues. Instead of investigating the vulnerability, Kemp’s secretary of state’s office posted a press release Sunday morning claiming that it was investigating a failed attempt by Georgia Democrats to hack the system.

Kemp is also facing lawsuits challenging the state’s exact match law, which requires that the info on voter registration forms matches what’s in the state’s records; tens of thousands of voters’ registrations have been frozen over discrepancies as small as a misplaced hyphen. The challengers were successful on Friday in getting the judge to address a problem with how recently naturalized citizens were wrongfully getting caught up in the system due to its reliance on outdated records. The order makes it easier for those voters to show proof of citizenship so they can vote, and also makes clear that they should be made aware that they have the option to cast a provisional ballot at polling sites if they don’t have their proof of citizenship available to show election workers.

Kemp additionally was sued over the state’s signature match system, which allows local officials to reject absentee ballot and ballot applications because they believe the signatures don’t match the ones they have on record for the voter. His attempt to get an appeals court to halt a lower court’s order against him in the case fell short Friday, with the appeals court panel denying the request 2-1.

Elsewhere, voting rights advocates have had less success in court, in large part due to how courts have interpreted a Supreme Court precedent known as the “Purcell Principle,” which discourages changes to voting practices close to an election, to the detriment of voters.

In North Dakota, Native Americans were unable to get a district court to examine burdens they’ve faced in trying to comply with a new voter ID law, which requires ID docs to have a residential address, despite the fact that many tribes don’t assign street addresses for their members. (Some Native Americans depend on PO Boxes or other non-residential addresses for mail and ID-purposes instead.) The district court had previously watered down the law for the midterms, but an appeals court halted that decision and the Supreme Court also allowed the full law with the residential address requirement to go into effect.

Voting rights advocates also lost in a lawsuit they brought in Kansas challenging the decision by election officials in Dodge City — where Hispanics make up 60 percent of its 27,000 residents — to move the the city’s single polling place a mile outside of town and not near any public transportation. Here too, the judge refused to order the opening of another polling place, citing the nearness of Tuesday’s election.

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