The ugly truth makes every one of us a liar

With respect to the smoking-gun evidence of discriminatory intent Simon discusses below, there’s one thing the Roberts Court can never say: that it hasn’t been told:

BREAKING: ACLU files notice to #scotus about new evidence in case about adding citizenship question to 2020 Census. https://t.co/k3VAALr82V— Robert Barnes (@scotusreporter) May 30, 2019

The problem, as Rick Hasen explains, is that to Trump Family caporegime Roberts and his four soliders the evidence that the Trump administration had discriminatory intent and lied about it is more a feature than a bug:

Indeed, the new documents should make that case indisputable. Hofeller’s documents describe how obtaining citizenship data would allow those drawing district lines to specifically harm Hispanic voters by packing even more of them into “Latino districts to bring their populations up to acceptable levels.” Common Cause also discovered a direct paper trail from the Hofeller documents to the pretextual DOJ request for the census question. The DOJ version of the Voting Rights Act enforcement request cited a paragraph from Hofeller’s work verbatim and included much of the exact same substance of Hofeller’s research presented in the exact same order. In the court proceedings, though, administration officials actively hid Hofeller’s involvement. Again, all of this should be a slam dunk. For the court’s conservatives, though, it likely won’t be.

The question whether it is permissible to draw districts in the way Hofeller wanted is an open one. Ed Blum brought a 2016 case, Evenwel v. Abbott, in which the court unanimously rejected Blum’s argument that the state of Texas was constitutionally required to draw districts with equal numbers of eligible voters. But the majority opinion by Justice Ruth Bader Ginsburg did not go further and reach the question whether drawing districts in this way—which would exclude not just noncitizens but also children and felons from the count—violates the Constitution’s equal protection clause. “Because history, precedent, and practice suffice to reveal the infirmity of appellants’ claims, we need not and do not resolve whether, as Texas now argues, States may draw districts to equalize voter-eligible population rather than total population,” Ginsburg concluded.

Justices Clarence Thomas and Samuel Alito, however, wrote concurrences affirming their belief that states have the right to draw districts in this way. There is good reason to believe that the other conservative justices would come along should they have to decide the issue. The newly revealed census documents may now give them the opportunity to do just that.

All of that means that the Supreme Court will likely go along with Ross’ true purpose in including the citizenship question on the census: to allow states to draw districts with equal numbers of voter-eligible persons rather than total persons. The smoking-gun evidence showing that government officials lied in offering the Voting Rights Act excuse for including the question likely will be seen by these justices as irrelevant if the real reason is a permissible one.

This is not how the census case should be decided. The government should have to offer its real reasons for taking government actions and defend its actions on those terms. And even if it is otherwise constitutionally permissible to experiment with different understandings of how to draw districts with equal populations under the equal protection clause, the government should not be able to do so if the purpose is to dilute the power of political adversaries and minority voters, as demonstrated in this case by the new revelations.

Thursday’s revelations should be damning. The ACLU is already seeking sanctions in the trial court in the census case for government officials lying about the real reason for including the citizenship question. But instead the revelations may help to prop up a case that should embarrass government lawyers to argue.

Coming up with a transparently feeble pretext for justifying what everyone knows to be racial discrimination to make it easier for Republicans to win elections and then lying about your real motives is essentially a summary of the Roberts Court’s voting rights jurisprudence. The fact that disenfranchising Hispanic voters was the real reason for (illegally) adding the census question probably just makes it more appealing to the Court’s neoconfederate majority, and someone having said the quiet part loud is highly unlikely to change that.

The elections of 2014 and 2016 will have anti-democratic ramifcations whose effects radiate for decades. But, hey, Donald Trump is a good man, a good father.