Census Controversy and Gerrymandering before the Supreme Court - Part 1: Apportionment

There are two interesting and very important questions before the Supreme Court this term relating to congressional representation.   One case is about apportionment – the way in which the federal government allocates the 435 Congressional Districts to the states.  The other is about redistricting – the way in which districts are drawn within and by states.  As they are both complex issues this will be a two series blog, Part 1: Apportionment and Part 2: Gerrymandering.   Apportionment is the process of allocating congressional districts after the decennial census.  Gerrymandering is the manipulation of congressional districts within state boundaries for political advantage.

These are complex issues for the Supreme Court that float in a gray area between politics and clear-cut law.  The issues may seem arcane to many, but they are of major consequence for the republic relating to representation, power, and resource allocation.  Both issues are worthy of considerable citizen attention.

APPORTIONMENT

Every ten years the United States Census Bureau conducts the census in accordance with Article 1 Section 2 of the United States Constitution.  The Constitution originally provided for the maximum amount of people in a district (30 thousand) at the start of the republic. However, as the number of states increased, and the population grew, it became impractical to keep expanding the number of districts or to restrict the number in each district to thirty thousand.

The Apportionment Act of 1911 established that there shall be 435 congressional districts in the House of Representatives to represent the interests of the citizens.   The Senate represents states. Each state is allotted two senators by Article 1, Section 3 of the Constitution (50 states x 2 senators = 100 senators).  

The 535 members of the Senate and House of Representatives together make up the bicameral legislature that together are called the United States Congress.   Additionally, the District of Columbia is allocated three Electors through the 23^rd Amendment to the Constitution.  Total electors therefore are 538 resulting in the requirement that a presidential candidate obtain over half, or 270 electors, to win a presidential election.

 In 1964 the Supreme Court ruled in Wesberry v. Sanders that states must equally apportion the population of the state within the allocated districts.  More on that in Part 2: Gerrymandering.

This is simple stuff mathematically: X (population) divided by Y (435 districts) equals Z (population per district).  For example, in 2010 the Census reported 309,183,463 people in the U.S.  Divide that population by 435 districts.  The result is a Congressional Apportionment of 710,767 people in each district.

Every ten years the decennial census triggers a reapportionment of the congressional districts.  The districts are reapportioned based on population shifts revealed by the census.

Shifting populations can result in one state gaining and another losing congressional districts.   This is a big deal.  It is about clout and power and resources in politics.  All manner of resource distribution by the federal government is based on the numbers.  Electoral College votes are tied to the number of congressional districts in each state.   Article 2, Section 1 of the Constitution states the Electors shall be “equal to the whole Number of Senators and Representatives to which the State may be entitled.”

Political power is shifting from north-northeast to south-southwest following the shifting sands of population migration.   This shift is causing a great deal of political infighting as many interested groups compete to protect or gain power.  It is incorrect to think the recent population realignment automatically benefits Republicans.  As the 2016 Presidential Election revealed, many previously solid “Red” states faded to “Purple” and some shifted to “Blue.”   The migrants bring their mindset.

As the decennial census for 2020 is almost upon us, and it is the basis for apportionment, a battle royale has ensued as parties press their interests to preserve or increase the power that flows from the census result.

The Trump Administration proposed adding a seemingly innocuous question about citizenship to the 2020 census.  Below is the proposed question.

A group of state attorneys general is suing Commerce Secretary Wilbur Ross (the Census Bureau is part of the Department of Commerce) to prevent him from putting the citizenship question on the 2020 census.  In January, a federal judge in New York ruled that the administration could not add the citizenship question to the census.  The Trump Administration appealed and the Supreme Court will hear the case.

The plaintiff’s legal argument is mostly one of administrative law questioning the procedure and motivations (e.g. alleged racism) behind Ross’ decision, not the efficacy of collecting the information.

   

The real reason for the suit is very simple.  Many of the plaintiff states encourage and incentivize illegal immigrants to migrate to within their borders.  They want those people counted in the census because they will lose power and resources if they are not.

  

The Pew Research Center reported in 2016 there were almost 11 million illegal immigrants in the United States.   Twenty-one states have illegal immigrant populations at or above 3% of their total population.  Eighty-four percent of all illegal immigrants are in those 21 states.  Seven states have more than 400 thousand illegal immigrants.  Over 61% of all illegal immigrants are located in those seven states – CA, FL, GA, IL, NJ, NY, TX.   Half are located in CA, TX, FL and NY.  Nearly a third live in CA and TX alone.

The group suing Secretary Ross consists of seventeen states, the District of Columbia, and five large cities.  All but one of the states have three percent or more illegal immigrant populations.  All are states that voted for Hillary Clinton in 2016, but for one – “purple” North Carolina.   Florida and Texas, states with large illegal immigrant populations (in fact they are #2 and #3 behind California), are not part of the suit.  Both voted for Donald Trump in 2016.  This is a partisan debate about power.

The Democratic controlled House of Representatives is also pressing to stop the question of citizenship from appearing on the 2020 census.  Secretary Ross was grilled by Congressional Democrats in a hearing last week on the topic.

Democratic Representative Jerry Nadler of New York, Chair of the House Judiciary Committee, tends to speak in a rather blunt way.  He said the inclusion of the citizenship question is “an attempt to steal congressional seats from those states [with high illegal immigrant populations], to steal electoral votes from those states and move them to more congenial states likely to vote Republican.”  Mr. Nadler uses inflammatory language a lot, but his basic point that Republicans may seek advantage is of course correct regardless the citizenship question’s efficacy. 

Might Representative Nadler be willing to concede that his party is pressing for its own advantage?  Might he agree that those states encouraging illegal immigration are engaged, as he says of Republicans,  “in an attempt to steal congressional seats from those states” that insist on the rule of law “to steal electoral votes from those states and move them to more congenial states likely to vote Democratic?” Not likely. This is politics.

Opinion:  

I think that the Citizenship question should be included in the 2020 census.   The census has increasingly converted from a census of each household to largely a statistical estimating process using surveys and harvesting data from other government databases.  The Pew Research Center is often cited as one of the most accurate estimates of the illegal immigrant population at 10.7 million.  The Department of Homeland Security estimates 12 million.   One academic study suggests 22 million.   With doubts stirred, to ask the citizenship question seems prudent.  The greater number of data points the better. 

I look forward to reading the Supreme Court’s decision at the end of the term.  My assessment is that they will rule in favor of the Trump Administration.

The census question suit is very similar to the approach taken in suits by states and cities contesting President Trump’s early “Travel Ban.”  It was not contested on its value, but on the procedure and motivation behind it (e.g. motivated by racial animus).  The Supreme Court ultimately ruled in favor of the president saying in their opinion, the Immigration and Naturalization Act “exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions.” 

  

This case does not rely on the INA, but it is very similar in its approach.   Though the present Court may be inclined to reduce Executive administrative power it seems less willing to impinge on the powers of the President for administrative or motivational slights.   It sees a building list of suits that are entangling courts in issues that are in truth political battles.  It does not want to go deeper down this rabbit hole.

Who will win in 2020? - syllables and follicles may tell

Former Colorado Governor John Hickenlooper will not be president – bet on it.  Only one person with a four syllable last name was ever elected president (and he was a five star general national hero) and the trend is toward fewer syllables.  Former Maryland Representative John Delaney will not be president – bet on it.  Delaney is bald.   We very rarely elect bald presidents.

Prognosticating about the 2020 election is well underway.  Much of it is based on anecdotal evidence.  As the readers of the Liberty Takes Effort blog know - facts and analysis dominate here.  The above predictions are based on statistical analysis of historic patterns.  Syllables and follicles do not appear to have been analyzed as a predictor of presidential contest outcomes in the past.

Reading last week of Hickenlooper’s presidential candidacy one might think, “no one with that name will ever be elected president.”   That conclusion is supported by analysis of past president names.   Cultural and ethnic biases toward this modified German-origin name are not at issue.  Rather, it is the number of syllables of this lengthy last name. 

Constructing a table with the names of all past presidents one discovers that only one president has ever had a last name of more than three syllables (Dwight Eisenhower).   In fact, the majority were two syllable last names.   This insight deserved further analysis.

Two syllable first names also dominate throughout presidential history.   Looking at both the last and first names of presidents one discovers that over 70% of presidents had three or four syllable first and last name combinations, but most prominent are two syllable first and last name combinations.

What is the condition of our economy?

The last quarter of 2018 saw a constant drumbeat of negative “news” that likely contributed to a psychologically induced drop in the stock market.   Headlines like, “Worst December for stocks since 1931 gets worse as rate hikes spook investors” were commonplace.   Social media regurgitated the narratives.    One would have thought the sky was falling despite an abundance of contrary economic performance measures that the economy is strong.

 

Something is wrong when armchair analysis by novice investors can detect the difference between economic reality and a false perception, but “journalists” cannot or will not.  The American public would do well to guard against watching biased and unreliable television “news” and informing itself (or rather not informing itself) through social media.  The resources are available to make better economic decisions.  The only requirements are time and focus.   The rewards can be significant.  

What is the evidence the economy is strong?

In the 1960s, economist Arthur Okun created the misery index economic indicator.  The misery index is largely the addition of the inflation rate and the unemployment rate.  The lower the number the better the economy.  The Carter Administration holds the title for the worst Misery Index at more than 20 (Inflation over 14% and Unemployment over 7%).  Dwight Eisenhower had the best at only 3.28.   The current misery index under the Trump Administration is 5.9 – the best since Eisenhower in 1952.

Recent release of end of year 2018 and January, 2019 economic data confirm a strong U.S. economy.

Lagging Economic Indicators (Table 1) illustrate how well the U.S. economy is performing.   LAGGING indicators are facts about what has happened in the recent past.  They can help in making some prediction about the immediate future, but straight-line projections of historical trends are dangerous and to be avoided.   In general, look at this table to assess where the economy is right now.

Goodbye Syria and good riddance

President Donald Trump ordered the withdrawal of approximately 2,000 U.S. military personnel in Syria this week. An immediate withdrawal appears to have begun.  There also appears to be debate about whether U.S. air power might still be used within Syria to further U.S. limited objectives there.

 

When the Arab Spring erupted in Syria in 2010 the United States chose not to participate in the overthrow of Bashar al-Assad of Syria as he suppressed the uprising among his people.   President Obama did not want to become engaged in the web of Middle East tribal warfare.  He later erred in declaring red lines that he did not enforce, but he was right about not becoming engaged.

Later, in 2014, as ISIS grew and began to control territory in Iraq and Syria the U.S. position changed and President Obama advanced a military presence to confront the growth of ISIS under authority originally given President George Bush in 2001.  U.S. forces were deployed to Syria.  They also returned to Iraq for one purpose – to defeat ISIS.

Seeking Economic Balance

A healthy economy is balanced.   A pendulum that is close to its settled point is most stable.   Frequent record high this and record low that are not good in the long term.  There are competing interests.   Balance is good.

After a decade of the extreme pendulum swing from the economic collapse of 2008-2009 to the record setting 2017-2018 the U.S. economy is settling into a comfortable position.   It will not last forever as there are many forces that will keep each of these trends in constant and sometimes contrary directions.

For now, this is a good place.  Contrary to the panic many incite about stock market corrections or political turmoil the overall economy is in good shape right now.

Harvard case to end affirmative action?

An inflection point may be at hand.  For decades the U.S. Supreme Court has permitted the compromise of Constitutional equal protection rights to permit what can be broadly described as affirmative action.   The ongoing lawsuit by people of Asian ancestry against Harvard University’s admissions policies may well be the case that ends any consideration of race in education or employment.  If so, a broad social and political upheaval may occur as any form of race conscious government action is banned.

Students for Fair Admission (SFA) is pursuing a lawsuit against Harvard University contending that the admissions process discriminates against Americans of Asian descent contrary to the requirements of Title VI of the Civil Rights Act of 1964.  Title VI bans discrimination based on race, color, sex, religion or national origin. Title VI, and the associated Title VII that bans discrimination in employment, flow from equal protection rights contained within the U.S. Constitution.

The Supreme Court’s Politicization – can we fix it?

The Republic is in a bind.  The nation is divided almost evenly from left to right.   The division over a generation has grown worse and infected the Supreme Court of the United States.  After the present confirmation process is completed there must be an effort to find a way to end this politicization of the Supreme Court and ensure that it remains the legitimate arbiter of the Constitution.

Article III of the U.S. Constitution states the “judicial power of the United States, shall be vested in one Supreme Court.”  Article II of the Constitution gives the President the power, “with the Advice and Consent of the Senate, … [to] appoint … Judges of the supreme Court.  The power imbued to the Supreme Court as the ultimate interpreter of the Constitution is uniquely American.

 

Before the Constitution was adopted there was great debate.  Alexander Hamilton wrote Federalist Paper No. 78 about the judicial power under the pen name Publius.  An opposing view was written in Brutus No. 15 by an unknown author.  Brutus’ overarching concern was that the Supreme Court, as ultimate authority of what the Constitution meant was unchecked due to its position and lifetime tenure of its members.  He said, “In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.”

Hamilton saw this state as a positive aspect of the Constitution.  He answered Brutus arguing that the independence and lifelong appointment would “secure a steady, upright, and impartial administration of the laws.”  He contended that the judiciary “will always be the least dangerous to the political rights of the Constitution” because it held no power of the purse (Legislative) or the sword (Executive).