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The Census Fight Is Over, Now The Real Fight Begins

2020 will be one of the most pivotal races in US history.  The Presidential race obviously draws the most attention, but of equal importance are the ramifications for the 50 state legislatures that will face redistricting following the upcoming census.  The focus will be on Presidential swing states, but progressives ignore legislative races in the other states at their peril. 

Going into the 2010 election nationally Democrats controlled 23 State Senates and 29 State Houses, versus 18 and 15 for the Republicans.  The 2010 election cycle was a particularly weak turnout for Dems and saw the rise of the Tea Party movement. The result were major advances for Republicans at the state level and these numbers flipped with Republicans controlling 25 State Senates and 28 State Houses (ballotpedia).  Of particular importance to us, from 2010 on, Tennessee Republicans control of the state House and Senate was firmly entrenched and Democrats were left in a “superminority” status where they had negligible ability to influence the legislative agenda.

The fact that the Republicans did well in 2010 was not concerning in and of itself.  After all, that was the will of the voters.  It is what happened next that should concern anyone who likes voters to have a real choice of representative in their representative democracy.  In every state they could, the new Republican legislatures set out to permanently entrench their majority through the aggressive gerrymandering of legislatures and US Congressional districts.  To be sure, gerrymandering is a vice that both parties have historically utilized.  But the newly available demographic data at the disposal of legislatures led to truly unprecedented levels of gerrymandering.  The end result for Tennessee was that for approximately 40/99 state House seats it was virtually impossible for a Dem to ever win. 

As a progressive in a red state, the years since have been rough.  Despite some recent movement, we all have become too accustomed to the reality of the Legislature predetermining the winning and losing parties for a majority of seats.  There is a general sense among some activists that Tennessee is so gerrymandered, how much worse can it get?  The answer, A LOT WORSE.  In 2010, the Republicans pushed the limits in terms of how district maps could be drawn.  In 2020, there is every indication that they intend to do something even more repressive.  All indications are that they plan to fundamentally alter who gets counted in redistricting.  This shift will severely disfavor areas with high populations of minorities, high populations of individuals with prior felony convictions and immigrant communities.  Because of the higher concentrations of these groups in urban areas, it will mean a shift in the number of representative districts away from urban areas and to rural ones.

What The Census Fight Was Really About

To condense the dispute, the Commerce Department had declared a year and half ago that it was adding question about citizenship to the census “at the request of the Justice Department” to enforce the Voting Rights Act and protect minority communities.  The reasoning seemed facially false to begin with and triggered litigation that ended at the US Supreme Court.  There, a unanimous Court doubted the reasoning given by the Trump Administration and ordered the case remanded to the lower court for further proceedings (read more here).  This effectively blocked the Administration’s ability to put the question on the Census.

While the case was going on, pretty much nobody believed the stated rationale for the Census change. However, nobody really knew what was motivating it.  A pretty dramatic change occurred that shed light onto the process.  With the death of Thomas Hofeller (the “Michelangelo of the modern gerrymander”), a trove of previously undisclosed data was discovered, including the likely origin of the Census change. (https://robert-donati.squarespace.com/config/pages/5881e567ff7c50bd37560ab2).  The change appears to be motivated in order to push a next-level gerrymandering method called Citizen Voting Age Population (CVAP). 

CVAP would be a dramatic departure from how districting has always been done.  Generally speaking, states must adhere to the principal of “one-person, one-vote.”  For example, it would be a violation under the US Constitution to have one state district with 5,000 people in it and another with 50,000 people.  The districts must be roughly equivalent in terms of population.  However, what the proponents of CVAP seek to do is redefine who is a “person” for the purposes of redistricting.  CVAP’s advocates focus primarily on excluding immigrants from consideration.  However, the formulation of only considering eligible voters is much more expansive.  For instance, minor children would be excluded.  Similarly, individuals who have been barred from voting might not be counted.  You could therefore have a district with a higher birth-rate, a large immigrant population, and a higher incidence of people with felony convictions that would have substantially larger numbers of actually people living in them, but have the same number of political representatives as another district with opposite trends.

Hofeller ran a test case for Texas to show exactly how this would play out.  If he had the citizenship data, he would be able to build upon Texas’s existing gerrymander and shift another 5 districts into Republican hands (Documents are available here , with Hofeller’s memo at Exhibit D)

Confirmation That The Endgame Is CVAP

However, outside Hofeller’s trove of hard drives, there was little direct evidence until recently that the citizenship question was motivating the Administration.  After all, the Administration was still arguing in Court that it wanted the census changes to protect immigrant communities, even as Republican surrogates took to cable news to argue how the question was essential to curb the political influence of these same communities.

Taken from Census.gov

Taken from Census.gov

However, on July 11, President Trump and Attorney General Bill Barr, held a press conference to announce the Commerce Department was abandoning its efforts to place a citizenship question on the decennial Census.  Overlooked in the press conference was the following:

“We are not backing down on our effort to determine the citizenship status of the United States population,” Mr. Trump said. But rather than carry on the fight over the census, he said he was issuing an executive order instructing federal departments and agencies to provide the Census Bureau with citizenship data from their “vast” databases immediately.

The President went on:

“This information is also relevant to administering our elections,” said Mr. Trump. “Some states may want to draw state and local legislative districts, based upon the voter eligible population.” (NY Times)

More recently, directives of the Commerce Department have given up their former ruse entirely and noted that they are setting up CVAP.

“Accordingly, the Secretary has directed the Census Bureau to proceed with the 2020 Census without a citizenship question on the questionnaire, and rather to produce Citizenship Voting Age Population (CVAP) information prior to April 1, 2021 that states may use in redistricting” (Talking Points Memo) the new version of the notice said.

What Effect Would CVAP Have On Tennessee?

First, off a disclaimer.  I am just a Tennessee lawyer, not a statistician or cartographer.  There are folks that are much more qualified than me who can say what the precise movement to CVAP would mean.  That said, on its face, the data appears to show some likely winners and losers in Tennessee.

To give us an idea, let’s consider this information from the prior census comparing counties.  Memphis has a relatively high birthrate and at the last census 25% of its population was under age 18.  Compare that to Tipton and Fayette County who had 19% and 24% under 18 respectively.  The same will play out with immigration data.  Memphis is home vastly larger immigrant communities than its neighboring counties. 

Finally, let’s look at what happens when we consider giving less political representation to districts where people are ineligible to vote because of felony convictions.  Tennessee has a massive racial disparity in who is disenfranchised from voting.  As of 2016, a little over 8% of the total Tennessee population was disenfranchised.  However, over 20% of African-American’s in the state were ineligible to vote ( see how we're losing 6 million voters ). You combine that with CVAP and not only will there be fewer African-American voters, but those areas of the state with higher minority concentrations will see decreased numbers of representatives as well.

In total, everything about CVAP in TN would mean a shift representative power away from urban areas dominated by people of color and to rural, predominantly white areas.

What Do We Do?

First and foremost, we have to pick up state House seats.  If a CVAP proposal were to come up today, a unified Republican House could force it through with no effective way for Democrats alone to stop it.  We have to get enough votes (particularly in the House) to break a Quorum and shut down government if necessary.

Next, Tennessee’s urban representatives need to wise up about this very, very quickly.  Though a statistician could do a better job than myself of determining the exact effect, it is easy to see where Davidson, Shelby, Knox, Madison and Hamilton counties would be the big losers in these sorts of changes.  Mayors and City Councils in these districts need to make clear to their Republican delegations that they need to avoid any change along these lines

Though progressives and urban Chambers of Commerce are not exactly best buds, this is an area where some bridge building needs to be done.  If not, both could find it much harder to get their priorities through a legislature that increasingly does not represent them.

 

Written by Robert Donati, Future901 Co-Founder & President