President Donald Trump surrendered his legal fight earlier this month to ask about citizenship on the upcoming census, but his administration is marching forward on a Republican strategy that could upend the way legislative districts are drawn nationwide to the benefit of the party.
Trump nodded to policy issues such as health care and education as reasons he issued a July 11 executive order for the government to compile citizenship information in a different way. And he accused “far-left Democrats” of being determined to “conceal the number of illegal aliens in our midst.”
But he also referred to how it could be used in the next round of redistricting after the 2020 census — a move critics suggest is the real reason the Trump administration wants to find out where noncitizens reside.
“Some states may want to draw state and local legislative districts based upon the voter-eligible population,” Trump said in the Rose Garden announcement. The same citizenship information, he continued, can be used to make decisions about “representation in Congress.”
That would be a huge change. Almost all states divvied up legislative districts after the 2010 census so that each had equal numbers of people. With more precise citizenship information, Texas and other states could instead slice up their states into districts with equal numbers of voters.
That would almost certainly benefit Republican candidates in states with large immigrant populations, which would be essentially rendered invisible for the purpose of drawing legislative maps.
Thomas Hofeller, the late Republican redistricting strategist suspected as the source of Trump’s push for a citizenship question, wrote in a memo unearthed after his death that the data would allow maps “advantageous to Republicans and non-Hispanic whites.”
That memo suggested mapmakers who don’t count noncitizens would have to expand the size of currently Democratic legislative districts to get the right number of voters — one district in Houston may have to grow as much as 40 percent, another near Dallas by more than 30 percent.
If the mapmakers loop in Democratic voters from nearby districts into that expanded district, it would remove them from adjoining Republican legislative districts and strengthen the GOP advantage there, Hofeller wrote.
The Census Bureau estimates that some congressional districts, including the downtown Los Angeles district represented by freshman Democrat Jimmy Gomez, have 180,000 or more noncitizens.
The constitutionality of such a rejiggered redistricting method hasn’t been definitively settled. But Trump’s insistence on collecting citizenship information makes it look more certain that at least one state will try it in 2021, setting the stage for the next legal battleground in the ongoing fight over how the nation is carved up into legislative districts.
“Any state that tries to do that is going to create a legal uproar across the country,” said Jeff Wice, co-editor of the National Conference of State Legislatures’ forthcoming redistricting law handbook for the 2020 census.
A 2016 Supreme Court fight over Texas’ statehouse districts foreshadowed this push from Republican states after the 2020 census, since the Lone Star State attorneys argued that states could draw districts based on numbers of voters.
No states have announced they will change to redrawing districts using voters instead of total population. But the legal fight over the citizenship question, and now Trump’s executive order, has brought the issue into the open.
The prospect of using citizenship data to draw state and congressional districts has support among at least some Republican lawmakers.
Sen. John Cornyn of Texas said drawing congressional districts using total population “means you’re drawing districts based on noncitizens. That can’t be right.”
A group of 19 House Republicans sent a letter urging Trump to issue an executive order to add the citizenship question to the census for its impact on apportionment and redistricting. “Despite claims to the contrary, citizenship is unquestionably germane to carrying out our duty to apportion representatives,” the letter states.
One of the letter’s signatories, Rep. Mo Brooks of Alabama, would go even further. He’s a plaintiff in an ongoing lawsuit seeking to have congressional seats divvied up between states based on the number of citizens. That would pull seats away from states like California and Texas in favor of Alabama, which has a smaller immigrant population.
Attorney General William Barr alluded to that Alabama lawsuit in his comments in the Rose Garden on the day the executive order was announced. The Justice Department, he said, “will be studying the issue.”
“For example, there is a current dispute over whether illegal aliens can be included for apportionment purposes,” Barr said. “Depending on the resolution of that dispute, this data may be relevant to those considerations.”
Democratic Sen. Cory Booker of New Jersey has made opposition to the Trump administration’s now-abandoned citizenship question a part of his presidential campaign, and introduced a bill to prevent the Commerce Department from sharing citizenship data with the states.
The legislation, which has dim prospects in a Republican-controlled Senate, would keep states from getting the detailed information needed to draw maps based on citizenship.
“This egregious and blatant attempt to tamper with our democratic process would completely overhaul the rules of who gets to participate in a representative democracy in America and it can’t go unchecked,” Booker said in a statement.
The Supreme Court would ultimately have to allow states to redraw districts to have an equal number of citizens rather than equal population.
The court has ruled that state and congressional districts must be equal, and that is not being challenged. But the justices have not definitively said whether that must be based on total population or the voter-eligible population, legal experts say.
“Apportionment of seats between states must be total population,” said Edward Foley, a constitutional law professor and director of Ohio State University’s election law program. “But redistricting within states is open depending on how the court wants to treat old cases from 1960s.”
There’s a tougher argument for congressional districts to be drawn using voters rather than total population, since the 14th Amendment states that representatives shall be apportioned among states according to “the whole number of persons” in each state.
And in a 2016 case, Evenwel v. Abbott, the Supreme Court stated that method of allocating House seats to states “applies as well to the method of apportioning legislative seats within States.”
But in that same case, a challenge to Texas’ statehouse districts that were drawn on total population, the unanimous 8-0 decision did not close the door on Texas’ argument that it could in the future draw legislative districts to equalize voter-eligible population rather than total population.
And two conservative justices, Clarence Thomas and Samuel A. Alito Jr., wrote separately in the case in an invitation of sorts for a state to bring such a case.
“The Constitution does not prescribe any one basis for apportionment within states,” Thomas wrote. “It instead leaves states significant leeway in apportioning their own districts to equalize total population, to equalize eligible voters, or to promote any other principle consistent with a republican form of government.”
Alito wrote that allowing a state to use something other than total population “is an important and sensitive question that we can consider if and when we have before us a state districting plan” that does so.
Trump’s executive order points to this uncertainty as part of its purpose.
“Some courts, based on Supreme Court precedent, have agreed that State districting plans may exclude individuals who are ineligible to vote,” the order states. “Whether that approach is permissible will be resolved when a State actually proposes a districting plan based on the voter-eligible population.”
Several states have considered legislation to alter their mapmaking authority to include citizenship data, including Nebraska, and more could pile on, said Wice, of counsel at Sandler Reiff Lamb Rosenstein & Birkenstock P.C.
He noted that alternative population counts have already been held up in the courts. New York and Maryland both count prisoners in their original communities rather than where they are held.
The constitutions and statutes of ten states — California, Delaware, Hawaii, Kansas, Maine, Maryland, Nebraska, New Hampshire, New York and Washington — authorize the removal of certain groups from the total-population apportionment base, according to the Supreme Court’s opinion in Evenwel.
Hawaii, Kansas and Washington exclude certain nonpermanent residents, including nonresident members of the military. And the constitutions of Maine and Nebraska authorize the exclusion of noncitizen immigrants.
Drawing state legislative districts based on citizen population has some history in the country. New York, for instance, had the authority to draw legislative districts based on citizen population before a 1969 constitutional amendment banned the practice.
The administration published a plan through the Office of Management and Budget that would have the administration build citizenship data to send to states through administrative records, enacting the president’s executive order.
“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 filing said.
The administration’s data sources, like the American Community Survey, may not be accurate enough to draw maps, Wice said. Even if they are, Wice said any state that tries to use them could expect a challenge on those lines as well.
And Trump’s loss in the courts on adding the citizenship question to the census could be a hurdle for Republican state lawmakers who want to use that data to redraw maps. A National Conference of State Legislatures study this month found that 21 states require the use of census data for redistricting.
Nonetheless, it’s a legal and political fight Republican appear poised to wage.