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Re-upping this to explain what I think Trump/Barr's strategy will be with today's expected executive order on the census citizenship question:
Also re-upping this, on how the Administration's expected executive order could open the door to a Democratic counteroffensive to reduce the representation of states that disenfranchise voters:
And finally, in light of today's expected executive order, I'm re-upping THIS thread on why, rather than admit SCOTUS is powerless, Chief Justice Roberts may cave in:
If the WH does back down from including a citizenship question in the actual census, it's because they realized that redistricting (unlike "apportionment" of how many total seats each state gets) does NOT constitutionally require an "actual enumeration." ...
... "The Constitution requires a decennial census to determine the 'actual enumeration' of the 'whole number of persons' in the US. The data must be used to apportion the House seats among the states, ...
...although there is no constitutional requirement it be used to determine intrastate districts." *** ...
"In Burns v. Richardson, the Supreme Court held that, in state legislative redistricting cases, the Constitution 'does not require the states to use total population figures derived from the federal census as the standard' of measurement." everycrsreport.com/files/20120413…
The GOP's long game is to base redistricting on citizenship rather than population. Doing so would reduce the number of House seats occupied by representatives of areas with high immigrant populations (ie, Democrats). It'll allow gerrymandering on steroids. ...
... Basing redistricting on citizenship rather than pop would be easier w/ "actual enumeration" citizenship data – ie, if there were a citizen Q in the actual census. But it's not mandatory, esp given SCOTUS's recent decision declaring that it won't interfere w/ gerrymandering.
TL;DR: I believe that, given that the Roberts Court will not interfere with blatantly partisan (and only slightly less blatantly racist) redistricting, the WH has realized it doesn't need "actual enumeration" to skew the system in their favor. They're not caving.
Trump's speaking now.
I'm just a little old country lawyer, but I'm pretty sure it's not "meritless litigation" when SCOTUS rules in your favor.
Executive order is for Commerce to provide "administrative data" that they're already providing.
I'm right. By saying that administrative data is "far more accurate" than a "single question alone," he's laying the groundwork for SCOTUS to rule that redistricting can be based on citizenship rather than population under Burns.
... Dear Pundits: He's NOT "backing down." Here's a thread I did explaining why it's HUGE that Trump just announced that administrative citizenship data will be used in redistricting:
For everyone trying to understand Trump's new declaration of war on fair representation, I suggest reading:
• Evenwel v Abbott casetext.com/case/evenwel-v…
@lylden's analysis of Evenwel: scotusblog.com/2016/04/opinio…
• This interesting note on Burns' missing fn: electionlawblog.org/?p=78070
@lylden ... Trump used a technical term today (which means someone smarter than him thought it was important): "Voting Eligible Population." Here's what he meant by that, and why it matters a BIG WHOLE LOT (from a thread I did last May, linked above):
@lylden ... Trump's use of the technical term "voting eligible population" suggests that what they're after here is WORSE than shifting to citizenship-based redistricting. It's even worse than the already-measured "citizen voting AGE population."

Way worse...
@lylden ... It suggests they want to redistrict based on ELIGIBLE voters. Not based on citizens. Based on ELIGIBLE VOTERS.

Not exaggerating. This is why someone (Stephen Miller?) inserted that technical term into Trump's remarks. ...
@lylden ... If this is their goal, it means states where ex-felons can't vote will be allowed to draw districts that do not count the ex felon population.

In Mississippi, that's 9% of citizens literally NOT REPRESENTED. KY 9%. TN 8%.
@lylden IOW, it appears that Trump just announced a policy of encouraging states to redistrict in ways that do not count huge numbers of mostly-Black citizens, most concentrated in Dem-stronghold cities -- and ordered all federal agencies to help them do so.

Which is super scary: ...
@lylden ... He just weaponized "citizenship" against millions and millions of American citizens.

First they came for the "illegals." But it isn't stopping there. It never does.
Exactly this. And Roberts just announced that so long as it appears "political" rather than "racial," the courts will not intervene.

Also, Thomas has written clearly that the VRA only gives minorities the right to vote, NOT to actually be represented.
It matters because it skews Congressional representation older and whiter -- ie, to the Fox News demographic. Read the screencaps here:
Yeah, that's pretty much my reaction, too. This probably is the scariest thread I've ever written. But at least they were nice enough to tell us what's coming so we can organize against it.
Because "eligible voters" excludes not just non-citizens (even lawful non-citizens who've lived here forever, have citizen children affected by school funding, etc), but also every CITIZEN <18 w/ a prior felony (no matter how long ago) in many states...
... IOW, @realJinxd, Trump just announced he is marshalling all the powers of the federal government to enable states to exclude CITIZENS from representation both in Congress and in state legislatures, under cover of protecting democracy from undocumented aliens.
@realJinxd Just on apportionment, not on redistricting. SCOTUS already has ruled that redistricting doesn't need to precisely equalize population -- and the recent Roberts decision makes it even worse by declaring it a "political Q" courts can't touch...
@realJinxd And note that until Roberts' recent, terrible redistricting decision made even that unclear, SCOTUS's rule limited population differences between districts to 10% max. Excluding felons ALONE will give Republicans nearly that much of an edge in many states.
This is true. Unfortunately, the Constitution doesn't say "no taxation without representation" -- and, as noted above, at least two Supreme Court justices don't believe "representation" is even required, so long as people are allowed to pretend to vote.
Great Q. But no, because the number of seats each state gets ("apportionment") must be based on Census population, but districts WITHIN each state ("redistricting") do not. Which carries an extremely ugly historical analogy: ...
Therefore, states that limit representation to eligible voters under the plan Trump announced today will still have their power in Congress magnified by non-represented people, EXACTLY as slave states once were allowed more representation by counting 3/5 of their enslaved people.
It would be cleaner for them if it WERE in the Census. That's why the dead GOP strategist advised putting it there. But the SC's ruling in Burns means they still have a shot as long as it's accurate -- which is why Trump said today it'll be MORE accurate.
For more detail, check out this document describing the GOP strategist's advice and its likely impact on GOP Congressional representation. (TPOP=total population; CVAP=citizen voting age population.)
I ABSOLUTELY congratulate @dale_e_ho and @ACLU's whole team for their win today. It was excellent lawyering, and as @Dan_F_Jacobson says, keeping the Q off the census IS a win. But, as explained in the thread above, we still have a HUGE challenge ahead.
@dale_e_ho @ACLU @Dan_F_Jacobson Right. If a state of 10 million were half non-voters, they'd still get 10M worth of House seats -- but a Black-majority urban area w/ two reps now might get only one after VEP redistricting (and that one would have twice as many constituents to care for).
@dale_e_ho @ACLU @Dan_F_Jacobson Yep. The scheme Trump announced today will exclude non-citizens (legal or not), everyone under 18, and (in many states) a huge number of people of color from redistricting calculations. TOTAL coincidence that those groups trend Democrat, I'm sure.
@dale_e_ho @ACLU @Dan_F_Jacobson It's all right here in the E.O. They're even open about their desire to deform Evenwel into something Ginsberg never intended. This isn't an executive order; it's a revolutionary manifesto.
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