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Supreme Court Rules On Citizenship Question, Partisan Gerrymandering

NOEL KING, BYLINE: The Supreme Court has just announced the final decisions of its term. One of them concerns a push by the Trump administration to add a controversial question about citizenship to the 2020 Census, and another case involves political redistricting. I'm on the line now with NPR legal affairs correspondent Nina Totenberg - she's at the Supreme Court - and NPR's Hansi Lo Wang, who covers the census. He's in New York.

Good morning to you both.


HANSI LO WANG, BYLINE: Good morning.

KING: All right. So Nina, let's start with you and with the partisan gerrymandering cases. What was at issue there?

TOTENBERG: Well, there were two plans. And let me just say I'm getting feedback so it's really hard to talk to you.


TOTENBERG: But there were two plans at issue here, one from North Carolina and one from Maryland. In Maryland, Democrats controlled the state, and they redistricted to eliminate one of two Republican districts. In North Carolina, which is split roughly equally between Republicans and Democrats, the Republicans controlled the state legislature, and they openly drew congressional district lines to reach their desired result, which was 10 congressional seats for Republicans and 3 for Democrats. And the chairman of the state legislative redistricting committee said, I propose we draw the maps to give an advantage to 10 Republicans and three Democrats because I do not believe it is possible to draw a map with 11 Republicans and two Democrats and...

KING: Wow.

TOTENBERG: Yeah. And Chief Justice Roberts actually cited that in his opinion. But he went on to say, sorry, guys, we can't do anything about it. There's nothing about this in the Constitution. The question here is not whether you can consider politics in redistricting, but how much is too much? And if the courts were to get into this, we would be bogged down in this forever. There's no way to figure out how much is too much. And he went on to reject all the proposals. You can't take politics out of politics, he said, and if we try, it's just too risky.

KING: You can't take politics out of politics is quite the statement. So what does this mean going forward?

TOTENBERG: Well, it means that if there's going to be any challenge to these extreme partisan gerrymanders, it has to be either in the state courts based on their constitutions, or some states have adopted independent redistricting commissions, which I know were upheld by the Supreme Court some years ago - just a few years ago - by a 5-4 vote with the chief justice in dissent. But today he said you can use redistricting commissions.

The problem is lots and lots of states don't have referenda in their laws that allow citizens to go and try to get an independent redistricting commission, and that means it's left to politicians, who, as everybody on this court agreed, even those in the minority, politicians want to entrench themselves. They don't want to be fair about it, right?

KING: What did those in the minority say? What was the dissent in this ruling?

TOTENBERG: This was a 5-4 case. Justice Elena Kagan spoke from the bench about her dissent, which is a mark of how much she thinks and the minority thinks how important it is. And she says what the court says can't be done was done in these cases by the lower courts. They looked at all the evidence in a very nonpartisan way. And the lower courts have come up with a general list of things to look at for standards. And she said, when faced with such constitutional wrongs, courts must intervene. It is one of the oldest tenets of our legal system that it is emphatically the province and duty of the judicial department to say what the law is. And of all times to abandon that duty, this was not it. The practices challenged in these cases imperil our system of government. Part of the court's role in that system is to defend its foundation. None is more important than free and fair elections.

And then she said, with deep sadness, with respect and deep sadness - that's an unusual thing to say - Justices Ginsburg, Breyer, Sotomayor and I dissent. And her voice was trembling. She sounded like she was really sad, on the verge of tears.

KING: Really, really unusual dissent. The other big case was about the census. The Trump administration wants to have a question added to the census that would essentially ask if a person is a U.S. citizen. How did the court rule on that one?

TOTENBERG: Well, you know, it was really interesting sitting in the courtroom. The chief justice went through all the ways that the court traditionally is deferred to administrations when they come in and they want to change a policy. And we can't - the court doesn't second-guess them. But when he got to the end, he said, hear, hear, the Commerce Secretary Wilbur Ross had as his explanation that the citizenship question was needed for voting rights enforcement. And he said - the record shows he had no idea of voting rights enforcement when he started out. He was just looking for something to justify adding this question.

And altogether, he said, the evidence does not match the secretary's explanation. And unlike in a typical case, the sole stated reason was contrived. And when we look at a situation like this, we would be required to display unusual naivete to accept this - and naivete was his word - to accept this explanation, and we don't.

KING: All right. Let's turn - this is a very, very interesting case. Hansi Lo Wang, I want to turn to you. It seems that the legal battles over this question might not be finished. What happens next now, Hansi?

WANG: A lot of balls in the air here. So for now, this question is blocked from the 2020 Census forms.


WANG: I am tracking ongoing appeals in Maryland, where ultimately, a federal judge there may be issuing an emergency order to really make sure that the Trump administration doesn't start printing 2020 Census forms with this citizenship question. There are discrimination claims there that the judge is reviewing.

KING: And so this is where it gets kind of interesting because we are on a deadline. In fact, test versions of the census questionnaire have already gone out. How does this affect the printing of the actual census itself? How might it?

WANG: Well, the Census Bureau has said that...

TOTENBERG: Can I just interject here?

KING: Sure.

WANG: Of course.

TOTENBERG: I think they're just out of time. They've been telling the court that this had to be done, this had to be decided by July 1. Even the most optimistic people in the Census Bureau said maybe October 1. We could let it last till then. But the court has blocked this question. I think they're out of luck.

KING: That is really interesting. And so Hansi, where we head from here is, we've just got to get these census questionnaires printed at some point, right?

WANG: Right. The Census Bureau says that printing is scheduled for - to start by Monday. And so we'll see if that happens, and we are a few months left until the official start of the 2020 Census, in January 2020.

KING: A lot of balls in the air, as you say.

NPR's Hansi Lo Wang and NPR's Nina Totenberg, thank you guys both so much. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.
Hansi Lo Wang (he/him) is a national correspondent for NPR reporting on the people, power and money behind the U.S. census.
Noel King is a host of Morning Edition and Up First.