Win one (sort of), lose one by @BloggersRUs

Win one (sort of), lose one

by Tom Sullivan

The Supreme Court's Thursday rulings on adding a citizenship question to the 2020 census and partisan gerrymandering was probably the best Democrats could hope for from the Roberts court. Win one (sort of), lose one.

In a mixed decision, Chief Justice John Roberts wrote in Department of Commerce v. New York that the Commerce Department's stated reason for adding the citizenship question was a pretext and impermissible. That was already obvious. Less obvious is what happens now. The court ruled Commerce and Secretary Wilbur Ross have the discretion to add the question but had to provide a valid reason for doing so and did not.

“In these unusual circumstances,” Chief Justice Roberts wrote, “the district court was warranted in remanding to the agency, and we affirm that disposition.” Translation: "No Do Overs" unless you're a Republican.

The acting president and Ross are in Japan for the G20 summit, but Trump issued some directives via tweet to delay the census "no matter how long" until Commerce can satisfy the court.

.....United States Supreme Court is given additional information from which it can make a final and decisive decision on this very critical matter. Can anyone really believe that as a great Country, we are not able the ask whether or not someone is a Citizen. Only in America!

— Donald J. Trump (@realDonaldTrump) June 27, 2019

Rick Hasen writes at Slate that Commerce might muster additional explanations for adding the question that could still meet muster:
But whatever the reason, the agency will likely act quickly to rehabilitate its pretexual ruling. The agency has said that printing had to begin in July, but plaintiffs challenging inclusion of the question have long claimed the real deadline is October. The government will surely concede now that October is doable. The agency could come back with new reasons, and the part of Roberts’ opinion joined by the conservatives which recognizes the broad agency discretion to include the question for non-pretextual reasons will be front and center.

If the agency moves to include the question again, the case will be back before the Supreme Court. It would likely be joined by the other case coming out of the Fourth Circuit arguing that the inclusion of the question violated the equal protection clause because it was based on a racially discriminatory purpose. The court did not address the equal protection holding Thursday, despite the outrageous urging of the solicitor general for the court do to so without briefing. Assuming the Commerce Department moves forward with trying to include the question on the 2020 census, the Fourth Circuit could well keep this case alive to create a record of the racial motivations for inclusion of the original question.
TPM reports the government has until Monday to back down or else face another round of discovery in the case. U.S. District Judge George Hazel has already reopened the case after emergence of the Thomas B. Hofeller documents provided evidence that the citizenship question addition is racially discriminatory in intent. Additional discovery could raise the equal protection issues Hasen cites and further complicate the government's case.

This is not over. If there is time, like the Terminator they'll be back. Hasen believes there could yet be a rare September argument before the court. Roberts could still give Republicans "another tool to solidify their grasp on power despite demographic forces moving against them."

In Rucho v. Common Cause, the Supreme Court's conservative wing punted 5-to-4 on whether partisan gerrymandering is constitutional. Roberts writes in his opinion the case presents “political questions beyond the reach of federal courts.” But the states themselves might act.

Justice Elena Kagan’s replies in her dissent, “Of all times to abandon the Court’s duty to declare the law, this was not the one.” Kagan adds, “The practices challenged in these cases imperil our system of government.”

The Washington Post's Paul Waldman and Greg Sargent responded to the court's hands-off decision on Republican partisan gerrymandering, "The court just told them to go nuts."

Three of the plaintiffs in the North Carolina case are local friends. One responded to the press after the ruling:
Jake Quinn, one of the three Asheville area plaintiffs, called the decision "deeply disappointing" and "anti-climatic."

"The five justices in the majority of the U.S. Supreme court have shrugged their shoulders, thrown up their hands and said it is too hard for us to figure out," said Quinn a longtime local political activist and now chair of the Buncombe County Board of Elections.
What the decision means is North Carolina will not have new congressional maps for the 2020 elections. Republicans will have gotten away with a decade's worth of congressional elections in districts deemed unconstitutional in the lower courts. In 2016, Republicans tweaked 2011 districts struck down as racial gerrymanders just enough to satisfy the courts. Voting rights groups challenged those modifications as partisan gerrymanders. But the blatant efforts to rig elections — rig is the only word for it — will stand unless Democrats gain back enough control in 2020 to prevent another ten years of it.

North Carolina Democrats saw new congressional district lines raising the possibility of turning out Freedom Caucus chair Rep. Mark Meadows in NC-11. Without fair districts or a seismic shift in GOP opinion against him, that possibility now seems remote.

State legislative districts drawn with the help of Hofeller are before the state court on July 15. Plaintiffs hope to have those districts ruled unconstitutional under the North Carolina Constitution. The state Supreme Court has a 6-1 Democratic majority.

“Now the fight against extreme partisan gerrymandering that undermines democracy moves to state courts and the ballot box,” NC Democratic Gov. Roy Cooper wrote. “The battle is far from over.”

All of which adds to the urgency for progressive activists to broaden their focus from winning the presidency to winning control of state legislatures (as well as U.S. Senate seats) in 2020. Asked about the 2016 presidential race, I pointed to how disconnected that contest is from issues closer to home:
I live in a state taken over by a T-party legislature that has passed one of the worst voter ID bills in the country, drafted absolutely diabolical redistricting maps, passed HB2 as a get-out-the-vote tool, and launches regular legislative attacks against our cities where the largest block of blue votes are. President Bernie isn’t going to fix that for me. Neither is President Hillary. And not in Michigan or Wisconsin either. We have to beat them ourselves. Here, not in the Electoral College.
That's even truer this morning.