How far gone is the Roberts court?
The Trump administration is attempting to add a citizenship question to the United States Census survey for the first time in 70 years. The motivation for this, claim administration lawyers, is that it's necessary to enforce the Voting Rights Act (VRA) — which the conservative Supreme Court majority seemingly accepted in oral arguments.
But new evidence has come to light proving beyond question that the real motivation is racist disenfranchisement. It raises the question of just how far Chief Justice John Roberts will go to undermine American democracy.
The evidence in question comes from Thomas B. Hofeller, a Republican strategist who was a key architect of the party's gerrymandering strategy. His strategies created maps like that of the state House in Wisconsin, in which Republicans benefit from a 29-seat handicap, or Ohio's congressional map, which gives Republicans a 4-seat handicap (out of a total of 16) in 2018, or North Carolina's congressional map, where the Republican handicap was 5 seats (out of 13 total) in 2016.
(Incidentally, the board game Mapmaker is a powerful concrete demonstration of just how outrageous it is to allow politicians to choose their own voters, very much worth playing.)
Republicans have thrown up a blizzard of squid-ink excuses to disguise the obvious partisan motivation behind the proposed citizenship question. But after Hofeller died last year, his estranged daughter Stephanie came into possession of a number of his files, which she shared with the advocacy organization Common Cause. There they found documents showing that Hofeller was the "first person" to come up with adding the citizenship question, and that he had helped ghostwrite a memo for the Department of Justice suggesting the VRA rationalization.
In reality, after closely studying Texas district maps, Hofeller had concluded that drawing districts based on voting-age citizens — instead of total population, as has been the practice for the entirety of American history — "would be advantageous to Republicans and non-Hispanic whites" and "would clearly be a disadvantage for the Democrats." The reason, he explained, was because if (disproportionately non-citizen) left-leaning Latinos and their children would not be counted, their districts would have to expand and thus dilute Democratic electoral strength.
But without detailed knowledge of citizen distribution, it wouldn't be possible. Hofeller wrote: "Without a question on citizenship being included on the 2020 Decennial Census questionnaire ... the use of citizen voting age population is functionally unworkable."
So the motivation for the question was explicitly partisan and racist, and part of an unequivocal Republican strategy to undermine fair elections by rigging electoral procedures. What's more, this evidence proves the administration lied in its earlier testimony, when they claimed Hofeller had little to do with the census question idea.
Of course, all this was obvious from the start. How much Republicans care about the VRA is demonstrated by Roberts himself, who largely gutted that very law in 2013 in an opinion that didn't even cite which part of the Constitution it supposedly violated. And after Roberts argued that the "'pervasive,' 'flagrant,' 'widespread,' and 'rampant' discrimination that faced Congress in 1965" was a thing of the past, southern jurisdictions that escaped from VRA protections instantly started rigging their electoral procedures to disenfranchise black people. Roberts has been on a crusade to destroy the VRA for his entire career; as Slate's Richard Hasen argues, we should expect nothing less than tendentious constitutional Calvinball as part of that effort.
Both Ronald Reagan and George W. Bush concluded that Republicans were going to have to appeal to Latinos to be able to compete in national politics over the long run. But Donald Trump's presidency shows that anti-immigrant bigotry has a stranglehold over the party's base — so they turn to the only way to win in a democracy without a majority coalition: cheating.
Nevertheless, even Roberts may hesitate at such a flagrant example of using his Supreme Court powers for racist partisan advantage. It would further erode the legitimacy of the court, demonstrating beyond question that it is just another legislative body, and strengthening calls from Democrats to enlarge its size as soon as they regain power. We'll all find out soon enough.