Brian Dickerson Detroit Free Press
Published 7:00 AM EDT Jun 30, 2019
The constitutional language that promises every U.S. citizen “the equal protection of the laws” has always been a little, well … aspirational. Since its ratification after the American Civil War, the 14th Amendment has described the egalitarian society we more precisely than the imperfect one we live in.
Federal law may guarantee even the most impoverished defendant a lawyer, but no one imagines that the homeless teenager arrested for petty larceny gets the same legal representation as the hedge-fund manager charged with securities fraud.
And while the aggrieved consumer and the multinational pharmaceutical maker enjoy the same right to free speech, the latter’s superior financial resources all but guarantee that its message — Ask your doctor if Venclexta is right for you! —will reach a far larger audience.
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The voting booth is the venue in which America has come closest to realizing the promise enshrined in the equal protection clause. Since 1964, especially, when the U.S. Supreme Court ordered states to reconfigure their political maps to assure that every legislator represented roughly the same number of residents, the principle of “one-person, one vote” has been the foundation of democratic rule.
Your rich cousin might have a bigger house, cast a larger shadow in social circles, and make more generous contributions to favored candidates and causes than you do, but when you go to the polls in a state or federal election, your votes count exactly the same.
Or at least, they used to.
The attack on fairness
One person, one vote — the venerable principle that no American’s vote should count more or less than their neighbor’s — is under siege on two fronts.
The first prong of attack began with the constitutionally mandated reapportionment that took place after the last federal census in 2010, when Republican majorities in state legislatures across the country, including Michigan, began executing a plan to systematically dilute the voting power of Democrats.
The second, more recent prong got underway in 2016, when Secretary of Commerce Wilbur Ross, whose department is finalizing plans for next year’s decennial census, announced that 2020 Census forms would for the first time ask respondents to indicate whether they are citizens of the United States.
Ross said the query was designed to protect the voting rights of minority residents. But absolutely no one with the brains God gave Jell-O brand gelatin believes him, because 1) the presidential administration he serves has exactly no interest in the voting rights of minorities, 2) correspondence recovered from the computer of a deceased Republican strategist suggests the citizenship question was explicitly designed to discourage immigrants from being counted as in Democratic leaning census tracts, and 3) Ross refuses to release internal records that almost certainly reveal his official explanation to be, um, disingenuous.
The good news, for those who care about the future of democratic rule, is that the U.S. Supreme Court decided this week to block the Trump Administration’s transparent effort to suppress the number of immigrants counted in the census. So the second prong of the assault on electoral fairness has been stymied, at least for the immediate future.
The bad news is that the same Supreme Court gave notice that it would look the other way while Republicans in Michigan and other states execute their plans to rig the next round of congressional and legislative elections, complaining that it’s beyond the judiciary’s purview to stem the cancer of partisan gerrymandering. So that constitutional promise is looking less and less like a good intention, and more and more like a bad check.
When cheating works
Federal law requires district courts to convene a special three-judge panel to decide claims that voters’ constitutional rights have been violated. Over the last three years, a succession of such panels has been warning the Supreme Court that redistricting plans adopted after the 2010 census are making a mockery of those voting rights, and that the judiciary must intervene energetically to restore them.
In cases arising from partisan gerrymanders in Wisconsin, North Carolina, Maryland, Michigan and (most recently) Ohio, district court panels including judges appointed by both Republican and Democratic presidents have concluded that incumbent legislators have abused their map-making authority to configure political districts that keep them and their parties entrenched in power election cycle after election cycle, even when a majority of the electorate votes for change.
• In the 2012 election, Republicans won 9 of North Carolina’s 13 congressional seats even though Republican congressional candidates garnered just 49% of the state’s popular vote. Two years later, when the GOP’s popular vote jumped to 55%, it flipped a 10th seat, giving the party a three-quarters majority in the U.S. House.
That year proved to be the high-water mark for North Carolina Republicans’ popular electoral support, which dropped to 53% in 2016 and 50% two years later. But the party maintained its prohibitive majority in the U.S. House — 10 of 13 seats in 2016, and nine of 12 in 2018, when fraud forced a still pending do-ever in the remaining district.
• In Maryland, Democratic congressional candidates never tallied more than 65% of the state’s popular votes. But since a 2011 reapportionment that redistributed half a million of the state’s 4 million voters across districts reconfigured to the majority party’s specifications, Democrats have maintained a hammerlock on seven of eight congressional districts — 87% of the state’s representation in the U.S. House.
• In Pennsylvania, Democratic candidates won between 45% and 51% of the votes cast in congressional elections between 2012 and 2016, but never won more than five of the state’s 18 seats in the House.
• In nearby Ohio, the Democrats congressional vote totals in four successive elections after the 2011 reapportionment ranged from 39% to 45%, but yielded no more than a quarter of Ohio’s 16 seats in the U.S. House.
• And in our own state, Republicans won 9 of the state’s 14 congressional seats in each election between 2012 and 2016, despite never securing more than 50.5% of the statewide vote.
Not the courts’ job?
Earlier this year, the courts heard appeals from two cases in which lower courts in North Carolina and Maryland had ordered legislators in both states to adopt new congressional and legislative boundaries, arguing that the state’s existing maps had been configured to dilute the impact of the dominant party’s voters.
In a majority opinion vacating reversing both decisions, Chief Justice John Roberts acknowledged that the redistricting plans under scrutiny had deliberately discriminated against one party’s voters, but said there was nothing he and his colleagues could do about it.
“Excessive partisanship in districting leads to results that reasonably seem unjust,” Roberts conceded, citing prior rulings in which the court described such schemes as corrosive to democracy. “But the fact that such gerrymandering is ‘incompatible with democratic principles’ does not mean that the solution lies within the federal judiciary.”
But Roberts’ craven complacency should not be confused with mere judicial restraint. Previous courts did not hesitate to throw out redistricting schemes that relied on outdated census numbers to discriminate against urban residents or configured districts with the transparent goal of diluting African-American votes. So why give cheaters free rein when they penalize voters on partisan grounds?
“In the face of grievous harm to democratic governance and flagrant infringements on individuals’ rights — in the face of escalating partisan manipulation whose compatibility with this nation’s laws and values no one defends — the majority declines to provide any remedy,” Justice Elena Kagan wrote in a blistering dissent. “For the first time in this nation’s history, the majority declares it can do nothing about an acknowledged constitutional violation because it … cannot find a workable legal standard to apply.”
The citizenship question
The way in which adding a citizenship question to the 2020 census threatens the “one person, one vote” principle is subtler. But Republicans strategists who conceived the idea have the same objective as those behind the most blatant partisan gerrymandering schemes: To reduce Democratic representation in Congress and state legislatures by undercounting immigrants in census tracts that historically Democratic:
Five former census directors who served under Republican and Democratic presidents think the citizenship query is a bad idea. The current Census Bureau’s own professional staff says that inquiring about citizenship status would likely discourage millions of immigrants — as many as 6.5 million, by one estimate — from returning their census forms.
The resulting undercount might cost half a dozen states (Arizona, California, Florida New York and Texas) to lose congressional seats. Other states, including Michigan, could forfeit millions in population-based federal funding if their own immigrant populations are undercounted.
In his majority opinion rejecting, for now, the Trump Administration’s efforts to include a citizenship question on the 2020 census form, Roberts said Secretary Ross’ insistence that the administration’s sole rationale was to protect minority voting rights didn’t pass the smell test.
But instead of shutting Ross down for good, Roberts remanded the question to a lower court, giving the administration a the chance to conjure a less transparently fraudulent cover story. An enraged Trump tweeted that the next census should be delayed, “no matter how long,” until Commerce Department lawyers can concoct a new rationale for including the citizenship question.
It seems unlikely that the high court would permit such a delay, given the majority’s distrust of the Trump Administration’s motives. But any delay in collecting updated census data could play with the work of the independent citizen’s commission Michigan voters established last November to make sure the state’s next political map isn’t manipulated for partisan advantage.
Such a delay would be unconscionable. But it would be totally consistent with the Republican Party’s determination to preserve Michigan’s rigged status quo as long as it can.
Brian Dickerson is the Editorial Page Editor of the Free Press. Contact him at [email protected]
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