Tag Archives: Richard Raile

Should Noncitizens Be Represented in Congress?

by David B. Rivkin, Jr., and Richard Raile

24 April 2019 in the Wall Street Journal

The Supreme Court Tuesday will hear oral arguments in the Trump administration’s appeal of lower-court orders forbidding it to ask a citizenship question in the 2020 census. The justices’ task in Department of Commerce v. New York won’t be difficult: The law and facts overwhelmingly support the administration. But the case is a proxy for future battles over redistricting and reapportionment, vital components of American democracy that determine the balance of political power within and among states.

The Census Act grants the commerce secretary discretion to conduct the census “in such form and content as he may determine.” In rejecting the citizenship question, the lower courts usurped that authority and frustrated Congress’s intent. The question about citizenship is far from unprecedented: It was asked in every census but one from 1820 to 1950. Most advanced democracies ask for citizenship information in censuses, a United Nations-recommended best practice.

The administration argues that the citizenship data would help in enforcement of the Voting Rights Act, and that is manifestly true. By law, “majority minority” districts must be drawn so at least 50% of eligible voters—i.e., citizens over 18—are members of the minority in question. If too many minority residents are ineligible to vote, that defeats the purpose of avoiding the dilution of minority voting strength. Voting-rights litigation and compliance are hampered by the lack of citizenship data in the decennial census.

The plaintiffs in this case, which include 18 states and the District of Columbia, are using the litigation as a means of stifling the legal and policy debate over whether and how citizenship information should be used in redistricting and reapportionment.

One question is whether states and localities may equalize the populations of their legislative districts according to the number of citizens rather than the total number of persons in the district, including aliens. The one-person, one-vote principle requires that district populations be substantially equal. But in states with large alien populations, equalizing all persons results in voter inequality, giving voters in districts with high numbers of aliens an unfair electoral advantage. This also tends to increase the political clout of urban over rural areas.

The Supreme Court held 8-0 in Evenwel v. Abbott (2016) that states and localities are not required to equalize citizens, but it did not forbid them from doing so. One purpose of the census-question litigation is to deprive states of the data to exercise that option.

An even more fundamental question is how accurate citizenship data might affect the apportionment of House seats (and therefore electoral votes) by state and the drawing of House districts. The conventional wisdom—which the justices assumed in Evenwel, although the case did not directly address the question—has been that the Constitution requires apportionment based on all persons physically present in a state, since the relevant language of Article I and the 14th Amendment refers to “the whole number of persons in each State.” But there is more here than meets the eye.

The draft Constitution required that seats be apportioned according to the number of “inhabitants” per State. That was the word used in the text, and framing debates, until the Convention’s Committee of Style and Arrangement substituted “persons.” But the high court made clear in Powell v. McCormack (1969) that any changes made by that committee were stylistic and not substantive. Further, the term “inhabitant” means more than mere physical presence. Webster’s 1828 dictionary defines it as someone with “a fixed residence” or who “resides permanently in a place.” In law, “inhabitant” was someone “who has a legal settlement in a town, city or parish” such that the person, “if a pauper,” was entitled to financial assistance there.

That mattered in the late 18th and early 19th centuries because the contemporary welfare system was administered at the local level and tied individuals to a political subdivision under a doctrine called “inhabitancy,” discussed in Blackstone’s commentaries on English law, which informed the Constitution’s drafters. The 1662 English statute Blackstone discussed required persons to return for assistance to the parish where they were declared “inhabitants.” As a result, the Constitution’s original public meaning tied apportionment to persons with a fixed abode and far more permanent place in the political community than simple physical presence.

True, inhabitancy and citizenship were not originally synonymous. Until the late 19th century, no federal law regulated immigration, and aliens could arrive and remain at will. Subsequently, however, Congress exercised its power over immigration and naturalization to define the nation’s political community, as well as entitlement to government benefits. Today, anyone who enters the U.S. unlawfully is subject to involuntary removal and thus cannot be considered an inhabitant in the constitutional sense.

Evenwel’s assumptions notwithstanding, these issues have yet to be directly explored, let alone resolved, in the political and judicial arenas. The plaintiffs in today’s cases want them to stay that way. They include states whose overt policies of attracting illegal aliens to so-called sanctuary cities advance their political self-interest in obtaining additional House seats and electoral votes.

Factoring such aliens into reapportionment and redistricting does nothing for them, as it does not change immigration status. Rather, it rewards state policies designed to subvert the Immigration and Nationality Act and to achieve enhanced representation at the expense of more law-abiding states. Today’s case marks only the beginning of a larger debate over these questions.

Messrs. Rivkin and Raile practice appellate and constitutional law in Washington. Mr. Rivkin served at the Justice Department and the White House Counsel’s Office. Mr. Raile has represented clients in redistricting litigation in Arizona, Georgia, North Carolina, Ohio, Pennsylvania and Virginia.

Source: https://www.wsj.com/articles/should-noncitizens-be-represented-in-congress-11555972120


Gerrymandering Disputes Don’t Belong in Court

By David B. Rivkin Jr and Richard Raile

26 March 2019 in the Wall Street Journal

Not every day does the Supreme Court have a chance to advance democracy and reverse a major mistake while also lightening its future workload. But it can do all those things in two cases it hears Tuesday dealing with gerrymandering of congressional districts.

In Davis v. Bandemer (1986), six justices agreed that courts can resolve complaints about so-called partisan gerrymandering, the drawing of district lines to favor the party that controls the process. In legal parlance, the justices held that such complaints are “justiciable.” But no five justices were able to agree on what legal principles courts should apply in deciding such cases. That question has been litigated ever since, including this week’s cases, Rucho v. Common Cause and Lamone v. Benisek. The court should put an end to this futile experiment by ruling that such claims are nonjusticiable political questions.

Electoral maneuvering, of which gerrymandering is one example, is as old as democracy itself. One of the more colorful examples is the English rotten boroughs system, which allowed the Crown and its supporters to control a substantial number of seats in the House of Commons until the passage of the Reform Act of 1832. Partisan gerrymandering strikes many observers as unfair, but it’s not clear what constitutional provision it might violate. The Constitution itself doesn’t even anticipate the existence of political parties.

The Constitution does address the question of who has the power to draw district lines. Article I, Section 4 provides that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” But the framers understood that what Alexander Hamilton called the “discretionary power over elections” entailed the danger, noted by James Madison, that legislatures might “mould their regulations as to favor the candidates they wish to succeed.” Hamilton went even further, saying unlimited state legislative authority over congressional elections would entail the power to “annihilate” the federal government.

Thus the same section also provides that “Congress may at any time by law make or alter such regulations.” That this delegation of power to Congress was the response to the possibility of abuse is powerful evidence that the Framers addressed the problem through the structural balance-of-power provisions and that a judicial check on legislatures’ politics is unavailable. Because the Framers agreed that a national election code was unworkable and that a benefit inhered in state legislatures’ ability to address local needs and traditions, they chose not to codify standards in the constitution.

With no standards to apply, judges are left to invent them—or to dismiss challenges as nonjusticiable. That’s where political-question doctrine comes in. Under the Constitution, some problems have no judicial resolution and are instead left to the other, democratically elected branches. Recent Supreme Court precedent establishes two principal hallmarks of a nonjusticiable political question—constitutional text committing a choice to the other branches and the absence of judicially manageable standards. Both apply here.

Another problem is that it is impossible to decide a partisan-gerrymandering case without making an initial determination of what a “fair” redistricting scheme would look like. That’s a question of policy, not law. A principle of partisan fairness is not like the one-person, one-vote rule, which stems from the individual right to representation and identifies equality by a clear, judicially manageable ratio of persons to districts. Nor is a gerrymander like a restraint on speech, which can be cured by allowing all sides to voice their views; or like discrimination, which can be cured by a mandate not to take account of race or another suspect characteristic.

Under the Constitution, the right to political representation belongs to individual human beings, not groups. Even if it is possible to draw maps in which Republicans and Democrats have equal electoral opportunities, a “right” to translate a party’s percentage of votes into seats is not one that all Americans can share. What about independents, members of the Green or Libertarian parties, or even partisans who disagree with platform planks of the two major parties, such as pro-choice Republicans or antitax Democrats?

How to define representational units is a choice that confronts every republican government, and that choice is inherently political. The Constitution itself was made possible by the Great Compromise, which accorded all states, regardless of population, two Senate seats. That affected the electoral opportunity of all citizens and groups. So did the choices to create the Electoral College and to make judges appointed for life rather than elected or term-limited. These were all deliberate choices to define representation according to policy and political compromise. They are not fundamentally different from the choices legislatures confront with every decade’s redistricting.

None of this is to suggest that each legislature’s redistricting choices are good ones; many are not. The questions are nonjusticiable not because they are easy, but because judges cannot distinguish good from bad answers without becoming politicians. If the calls for partisan “fairness” in redistricting represent a meaningful political desire, that desire will percolate through the system and translate into democratic change—like the change from appointment to election of senators. It wouldn’t even take a constitutional amendment for Congress to enact redistricting criteria limiting state legislatures’ political discretion. Proponents of fairness by lawsuit show remarkably little patience for the democratic process they claim to defend.

Messrs. Rivkin and Raile practice appellate and constitutional law in Washington. Mr. Rivkin served at the Justice Department and the White House Counsel’s Office. Mr. Raile has represented clients in redistricting litigation in Arizona, Georgia, North Carolina, Ohio, Pennsylvania and Virginia.

Source: https://www.wsj.com/articles/gerrymandering-disputes-dont-belong-in-court-11553555381