Cartographers Versus Democracy

Who would’ve thought our democracy would be destroyed, not by wars or riots or coups, but by cartography?  What could be more eye-glazingly boring than a discussion of a census question and district maps?  But recent documents released by the group Common Cause connect the dots on why the Commerce Department has been pushing this census change and what the ultimate endgame is.  That endgame is to elevate the GOP’s gerrymandering to another level.  If taken to its ultimate conclusion, it results in district maps that disfavor minorities over whites and render it statistically impossible for Republicans to lose control of numerous state Houses and Senates.   

For those not familiar with the issue, the Commerce Secretary, Wilbur Ross, is proposing to add a question on the short form of the US Census asking whether those responding are US citizens.  (The question currently appears only on the “longform” census questionnaire that a small minority of respondents complete).  Though this seems an innocuous change, it carries major ramifications.  Immigrant rights groups have been skeptical of this questioning and have seen it as a way of harassing and creating fear within immigrant populations.  Similarly, states with large immigrant populations (which tend to be Democratic states) have been wary of this.  They feel it will likely result in an inaccurate count of their states’ total population.  A striking number of things are tied to census population numbers.  So, for instance, California could find itself having to educate more children than were counted in the census and therefore getting less funding per capita than a neighboring state.  These are all valid concerns, but don’t nearly capture the ambition of what the Republicans are trying to do.

Lawsuits have followed and have now worked their way up to the Supreme Court.  In defending the Commerce Secretary, DOJ attorneys have argued the position that the government is actually seeking to “protect” immigrant communities.  To put it mildly, the contention that this administration was pushing this issue to protect immigrants has always seemed unlikely.  Now, Common Cause has unearthed a trove of previously undisclosed documents from Thomas Hofeller (the “Michelangelo of the modern gerrymander”). These were documents that were not produced by the DOJ during discovery, were commissioned by one of the GOP megadonors and appears to be the motivation behind the census question.  Tellingly, though Hofeller was never identified in discovery as part of the litigation now before the USSC, parts of his work appear word for word in government documents.  (I encourage everyone to read the full reporting by the NYTimes).

Sadly, if the pleadings from Common Cause are correct, it appears the DOJ attorneys lied during discovery on this issue.  (You can read their brief here).  Instead of being part of some effort to protect immigrant communities as asserted, the question is, in fact, the missing piece of data necessary for the GOP to radically alter the way we redistrict in the United States and can unleash a new wave of even more aggressive gerrymandering.

Central to what Hofeller was looking at was a way of setting the stage to radically alter the way that we draw voting districts.  Presently, a simple view of redistricting is that each district must have roughly the same number of residents.  An alternative method proposed by Hofeller (but adopted nowhere in the US) is to impose a Citizen Voting Age Population (CVAP) test.  In that, states would not consider children or immigrants when counting the number of people in a district for redistricting purposes.  So, in a state like Tennessee, for example, Memphis has a high number of children (particularly in minority communities) relative to more rural counties.  Similarly, Memphis has much larger immigrant communities than its neighbors.  Under CVAP, the city would end up loosing representation in the legislature as its voting districts would be moved out to more rural areas.

Common Cause has made a number of the relevant documents available to the public in their entirety.  Anyone living in a gerrymandered district and wondering why they don’t have a choice at the ballot box and how that happened needs to read this.  This is what the subversion of the democratic process looks like:  a memorandum from a brilliant cartographer to his billionaire patron.  (Documents are available here , with Hofeller’s memo at Exhibit D).

What is fascinating about this is the peek behind the curtain of what the GOP actually does in redistricting.  They were quite clear on what the intent was.  Looking at their Texas case study, Hofeller found:

The 97 GOP districts have sufficient CVAP populations to actually form 103.2 districts, while the 53 Democrat districts only have sufficient CVAP population to comprise 46.8 districts. Use of CVAP would clearly be a disadvantage for the Democrats.

The only problem in implementing this scheme was that it required them knowing where the immigrants are, down to the block level, to be able to draw the maps.  As Hofeller put it:

Without a question on citizenship being included on the 2020 Decennial Census questionnaire, the use of citizen voting age population is functionally unworkable.

Without that question, they could not target properly.  They had to resort to what they were evidently currently doing, looking at the last names of the citizens and guessing at their race before they drew the district line.  He notes:

In many states, such as Texas, experienced redistricting experts have relied much more on the use of ethnic surname matches against the registered voter file to determine Latino voting strength, rather than estimates of the percentage of adult citizens who are Latino. Of course, since the population base for compliance with the one person, one vote rule has been TPOP, ethnic surname and CVAP estimates have only been used as indices of probable district election performance for Latino candidates.

However, with the new census question, the data could take their gerrymandering to a new level.  As Hofeller puts it:

A switch to the use of citizen voting age population as the redistricting population base for redistricting would be advantageous to Republicans and Non-Hispanic Whites.

How would this affect Tennessee?

I do not claim to be a map-maker or statistician.  However, I do have a hunch as to how this will play out if it came to Tennessee.  This most likely outcome is that it is going to disproportionately favor rural, white populations.  Demographically, minority populations in Tennessee have a higher birth rate, excluding their minor children will clearly be a negative.  Similarly, the state’s immigrant populations are disproportionately in our urban centers. 

Moreover, in this political climate, there is every reason to believe that the question generally would drive down participation.  Take for instance a home of a US citizen, an undocumented immigrant and a US citizen child.  Would that US citizen respond to the census questionnaire at all?  Similarly, around 10,000 Tennessee residents have applied for DACA.  How many of them are living in family units that are a mix of US citizens and individuals of questionable legal status?

In sum, a lot is riding on this census question and this USSC case.  If the administration succeeds in putting this question on the ballot, expect for Republicans to start pushing for the previously unheard of CVAP redistricting.  With this crew in the TN legislature expect them to do everything possible to push it through.

Robert Donati

Attorney and Life-long Tennessean

Treasurer and Co-Founder of Future901