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Supreme Court Allows Gerrymandering to Continue; Supreme Court Returns Census Case to Lower Courts; Citizenship Question May Still be Added to 2020 Census, Timeline Unclear. Aired 10:30-11a ET

Aired June 27, 2019 - 10:30   ET


[10:30:22] POPPY HARLOW, CNN ANCHOR, NEWSROOM: Welcome back. We're continuing to follow a major decision from the Supreme Court. The Supreme Court, deciding a 5-4 decision, that it will allow severe partisan gerrymandering to continue.

Let's bring back in our experts. And Jeffrey Toobin, to you. A little bit more from Chief Justice John Roberts, who wrote the majority opinion here. He said, "Our conclusion does not condone excessive partisan gerrymandering." Well, Justice Kagan, who's reading her dissent from the bench, says, "Gerrymandering is, as so many justices have emphasized before, anti-democratic in the most profound sense."

So Americans this morning, watching this and wondering, is there any way of truly dealing with partisan gerrymandering now? What's your answer to them?

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Well, you know, Chief Justice Roberts makes an interesting reference. I mean, he recognizes how terrible this all looks. He recognizes how unseemly it is, the way politicians use gerrymandering to lock in the district. But he says, "Look, it's not the job of the courts."

And then he says something very interesting towards the end of his opinion. He says, "Look, there are a lot of interesting proposals out there to deal with gerrymandering, including independent commissions that have been adopted by some states, that kind of take it away from the state legislatures.

There's one like that in California, there's one like that in Iowa. And he says, "Aren't these interesting proposals?" But what's curious about that -- and Ron mentioned this earlier -- is that in a different case, earlier, when Chief Justice Roberts was in the minority, he said those commissions were unconstitutional, that the state legislature had to do it itself.

So I don't know if Chief Justice Roberts is --

HARLOW: Is that the Arizona decision?

TOOBIN: Yes, the Arizona case. That --

RON BROWNSTEIN, CNN SENIOR POLITICAL ANALYST: Yeah, Arizona case. TOOBIN: -- that -- you know, I don't know if he's changed his mind

about those, or he's simply throwing -- blowing smoke to try to distort the impact of this decision. But, you know, those independent commissions are probably going to be -- get a lot more support than they have now.


TOOBIN: But it remains unclear, whether they're constitutional as well.

BROWNSTEIN: Right. Poppy?

HARLOW: So that could be another test that the court faces.

Yes, Ron?

BROWNSTEIN: I was going to say, right. The logical response to this ruling is that you're going to see more efforts in states. I think we're up to 21 states that have taken redistricting away from the legislature to some degree. And clearly, you're going to see more efforts toward that effect.

But as I mentioned -- and Jeff just filled out a little bit -- the chief justice in the past voted on the losing side of a 5-4 decision to invalidate exactly those kinds of independent commissions. The fifth vote, joining with the four Democratic-appointed justices, was Anthony Kennedy, who has now been replaced by Brett Kavanaugh.

So it's not clear that those independent commissions can survive another legal challenge, which may come from Republicans and conservatives in some of these states.

It's also important to note how these two cases intersect because in the census case, the evidence from Thomas Hofeller -- yes, the dead Republican, the deceased Republican strategist files -- is that they want to use the citizenship data in the census to change the way districts are drawn, from all people to just eligible citizens, citizens who are of voting age, which would also enormously compound the effect of moving representation away from highly diverse areas toward areas that are more preponderantly white and generally more Republican.

So this census case could be an accelerant of what we see in the gerrymandering --


BROWNSTEIN: -- case because if they do decide to allow the citizenship question, you will see, I think, conservative states try to shift the way they redistrict and who they count in that.

HARLOW: And Elizabeth, to Ron's point about how -- and what you said earlier, they are, you know, related in that sense. And we're waiting for the census decision that will come --


HARLOW: -- down in just a few moments.

But just talking about the impact, here, of Justice Kennedy no longer being on the court. Remember in 2015, it was Scalia, I believe, who wrote the majority decision there, essentially saying that a court -- the court -- that a map challenging extreme gerrymandering, right? Which was the question here -- was not reviewable, OK?

But Kennedy left the door open in 2014. And he wrote that he would not foreclose on all possibility of judicial relief if some limited and precise rationale were found. But that door has now been closed.

I'm hearing we're getting a ruling on census, you guys. Let me know when we can go to Jessica on that.

Until we can, this is a sea change because Kennedy's no longer on the court -- Elizabeth.

WYDRA: Right. Exactly. And so you have, you know, this conservative majority being much starker in their decision than they would have, I think, if Kennedy were on the bench, still keeping the door open.

[10:35:00] And, you know, the court knows how to make decisions when it comes to the law, as Justice Kagan said in her dissent here. It's the court's job to declare what the law is.

They can deal with somewhat gray areas. I think Chief Justice Roberts is playing a little too cute here by saying they can't weigh in because there's no clear standard. I mean, we know kind of that famous rule on obscenity. You know it when you see it. That didn't stop the court from saying that it could apply the law in those cases.

And here, there's a lot of really good data and evidence, showing that these are extraordinarily manipulated districts in ways that affect our constitutional democracy.

And one thing that Ron said, when we get the census decision, is to keep in mind that all people -- citizen or no, whether you can vote or not -- are to be counted for political representation under the Constitution. When you're drawing those lines, everyone -- children, noncitizens, whether you can vote or not -- is supposed to be represented by our leaders.

And so what we're seeing here, exactly as Jeffrey and Ron have said, is this attempt by conservatives -- generally the Republican Party -- to narrow that, to exclude communities of color. And that is deeply, deeply problematic for what we hope is going to be an inclusive American democracy.

HARLOW: OK. Jeffrey Toobin, the court has ruled on this census case. We'll find out what they have decided and how that division is among the justices in just a moment. This is the administration, the commerce secretary, Wilbur Ross, saying, "We have the right to add a question to the 2020 Census. It asks, 'Are you a citizen or not?' And we're doing it to better comply with federal voting rights laws." Critics say this is a veiled attempt to intimidate noncitizens and

depress response from especially Hispanic households, and that has an impact on money and representation in Congress, et cetera. How big is this?

TOOBIN: Well, it's potentially very big. But it's also related to the gerrymandering question. Because, you know, particularly in the last couple of decades, Republicans in particular have used the rules on gerrymandering, the rules on the census to try to limit the number of people of color who are counted, who have meaningful representation in Congress and in state legislatures and in how federal money is divided.

So these cases are intimately bound up with each other and they are about locking in Republican domination of government regardless of what the voters want. Both of them are, you know, have that as the political -- I wouldn't even call it a subtext, I'd call it the text of what's really going on in these cases.

And we know that the Republicans won in the partisan gerrymandering case, and we are waiting to hear...

HARLOW: Waiting.

TOOBIN: ... from Justice -- Jessica Schneider, what happened in the census case.

HARLOW: Yes. And these can be very complex, so we're taking our time, that team is...

TOOBIN: Yes, as well we should.

HARLOW: ... going through them. You can look down and read it too, Jeffrey, in the moments you have off here, to give us your analysis.

Elizabeth, to you, people might not know but this question was on the census until 1950, right? So that's also a big part of what the court is...

Go ahead, Ron. Go ahead, Ron.

BROWNSTEIN: It's never been asked to the whole country. I believe there's testimony from...

WYDRA: Yes, exactly. Yes.

BROWNSTEIN: ... it has never been asked in the way that the administration wants to use it. So...


BROWNSTEIN: ... there really is not precedent. And in fact -- go ahead.

HARLOW: Go ahead -- I mean, go ahead, Elizabeth, and explain that difference that Ron is saying. It has not been asked to the whole country in this way.

WYDRA: Yes. So there have been some questions asked in other inquiries that the Census Bureau puts out --

HARLOW: Right.

WYDRA: The community surveys --


WYDRA: But there's never been this question specifically. And, you know, especially when you're talking about the way in which the administration is supposed to make decisions, by putting forth its actual reason, you know, that is the issue that's before the court here.

We have an Administrative Procedure Act, which says that the court has to put forth its reasons for decision-making -- excuse me, the administration has to put forth the reasons for its decision-making. And here, we have very good evidence to think that they say they're doing this to enforce the Voting Rights Act; you've never needed this question to enforce the Voting Rights Act. We have certain administrations who have been very pro-Voting Rights Act who have not needed to put this question on the census.

And so the question is, what is their real reason? And there's a lot of evidence to suggest that the Trump administration's reason is discriminatory and also to help the Republican Party.

HARLOW: Ron Brownstein, what is going to be fascinating here, along with the key decision from the court, is what they are going to do or what they do about what the ACLU has presented, which they call all of this "additional evidence" that came after oral arguments, right? About this -- about this Republican redistricting expert and the work that was done and the communication that that person had with the Trump administration before he died, and the Maryland case.

[10:40:13] BROWNSTEIN: Well, the Maryland -- right. Because, I mean, this is an administrative procedure case. I mean, they're accused of violating the Administrative Procedure Act and the lower courts have found a lot of evidence that they did exactly that.

The Maryland case, as I understand it, raises a different objection about kind of overt racial bias in this -- in the adding of this question. And there's no doubt -- Poppy, as you note -- census experts themselves have predicted that this will lead to a massive, a significant undercount, particularly of Hispanics.

I know the Urban Institute estimated that there could be a significant undercount of Hispanics and African-Americans in a -- in the census in 2020 for a variety of reasons, including the addition of this citizenship question. So this is something that just has enormous consequences.

The Trump administration this week asked the court at the last moment to not only rule in their favor on the Administrative Procedure, but to pre-empt the other potential litigation around racial bias. And, you know, we'll see if they are willing to go that far in a request that came in.

But the evidence that has come out about the intent of this question, both the partisan and the racial logic and motivation behind it, is so powerful that a 5-4 party line decision on this, I think, will resonate, I think, as strongly as Citizens United or Shelby County, which are the other two kind of --


BROWNSTEIN: -- landmark setting-the-rules-of-politics decisions in the John Roberts era.

HARLOW: Jeffrey Toobin, to that point -- and the back-and-forth this week between the administration and the courts on this one, you had an appeals court saying that the new evidence presented in this, in the Maryland case, warranted re-examination of the case. A few hours after that, the solicitor general, Noel Francisco, shot back with a letter disputing that, saying the court has to make a decision. We can't wait, we can't punt until the fall. We've got to print this thing now.

TOOBIN: Ms. Harlow, may I ask for a delay? I am actually trying to read the opinion --

HARLOW: I know.

TOOBIN: -- and -- and --

HARLOW: OK, fine. Yes. Go.

TOOBIN: -- it's complicated. And I want to --


TOOBIN: -- be right rather than fast.

HARLOW: I mean that. I want you to be right. It's always best to be -- to be accurate --

TOOBIN: But it's out.

HARLOW: -- and not fast. So let's take Jeffrey off the screen. Jeffrey, you go ahead and read and Elizabeth --

WYDRA: Yeah, so, Poppy --

HARLOW: -- let me go to you on that one.

WYDRA: So, Poppy, I think that's a great question. You know, look, this administration has been pushing and pushing the Supreme Court. And for them to ask the court -- this is a little bit wonky, but for the solicitor general of the Trump administration to ask the court to rule for them on an issue that has not been briefed before them, is an extraordinarily hubristic act. And, you know, I think that we've seen from the Trump administration,

over and over, Trump tweeting things that suggest he thinks he has the Supreme Court in his back pocket. I can't imagine Chief Justice Roberts likes that very much.

And so I think when we, you know, get into the meat of this census decision, we will have to see whether the court is stepping back and saying, you know, "We're taking our heads out of the sand," or if they're going to say, "We're going to keep taking your word on these things" that, if you look at real life, you know, you have to admit that there are -- the evidence, again, is so strong that the motivation for this question here was not to enforce the Voting Rights Act.

It was to try to exclude particularly Hispanic Americans, non-Hispanic whites, and to -- excuse me -- to empower non-Hispanic whites. And also Republican candidates.

So if you look at reality -- and I hope the Supreme Court does that in addition to, of course, applying the Constitution, which says that all people should be counted in the census -- you know, this is going to be an incredibly important decision.

And at a certain point, the American people are watching the court. And they want them to be this nonpolitical institution that applies the law. But we're seeing a chipping-away at that, over and over, from the Justice Kavanaugh hearings, which were troubling to many Americans, to political rulings like Citizens United and Shelby County, striking down key portions of the Voting Rights Act.

And so this decision, Americans are watching and it's going to be incredibly important.

HARLOW: You're right.


HARLOW: Ron, go ahead. And then I have a follow-up for you. Go.

BROWNSTEIN: I was going to ask, real quick. The largest context of this. I mean, it's impossible to divorce these decisions from the demographic context in which they are occurring. I mean, the under-18 population is projected to be majority kids of color by 2020. 2023 or so, a majority of the high school graduates will be kids of color. By 2030, a majority of the population under 13 will be non-white.

And this is one of many decisions in which you have these five Republican-appointed justices who are nominated and confirmed by Republicans who are primarily representing the parts of America least touched by this demographic change, that are making rulings that will constrain, I think -- the potential to constrain the influence of that growing, diverse America.

[10:45:12] And Shelby County was certainly that. The issue -- the rulings on affirmative action touched to that. But nothing goes to that more directly than this census question, which is really an attempt to define out of existence, this changing America in a way that, as Thomas Hofeller said, benefits Republicans and non-Hispanic --


BROWNSTEIN: -- whites. I mean, this is about holding power despite demographic change by setting the rules of politics in a way that minimizes the impact of that change.


HARLOW: So you bring up an important name, and --

BROWN: And that's a form of stress, coming ahead.

HARLOW: You -- Ron, you bring up an important name in all of this, that I'm not sure that the average American is fully briefed on. So let's just explain it to them, as we wait carefully for this decision to be explained to us by our experts.

Dr. Thomas Hofeller, he is a Republican -- was a Republican redistricting expert. He wrote a study in 2015 that said that this redistricting would be advantageous to Republicans and non-Hispanics, to use citizen voting age, as you bring up.

Many people didn't see these documents until he died. His daughter discovered them on thumb drives. They came to the attention of the ACLU, Elizabeth, which brought that issue to the high court.

But until today -- and we don't even know if the justices will do it today -- the ACLU has not responded to that issue, and whether they'll consider that in this. Hold that thought. Jessica Schneider, my colleague, is outside of the Supreme Court.

Jessica, what did the justices decide on this question of can citizenship be added as a question to the 2020 Census?

JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: Poppy, the justices in this ruling, saying for right now at least, the Census Bureau cannot go forward with putting this citizenship question on the 2020 Census. That doesn't mean it won't happen eventually.

But for right now, as we face up against this July 1st printing deadline, the Supreme Court is saying, "Hold on. We need more explanation from the Commerce Department about why they want this question added. And we're going to send it back to the lower court." That's the Southern District of New York, the federal court in Manhattan.

This is quite astonishing, really, because of this tight deadline that we're under. Today is June 27th, and the Census Bureau had said that it needed to start printing these questionnaires for the 2020 Census by July 1st, within a matter of days.

But the Supreme Court is saying, here, that it is within the Commerce Department's right to include a citizenship question under the Enumeration Clause of the Constitution, which is better known or otherwise known as the Census Clause, which lays out how the census will be conducted.

It is within their power to add this question. However, they need to adequately explain it. And one of the key portions of this opinion, here, it says, "We cannot ignore the disconnect between the decision made and the explanation given." And that really points to this question here, as to whether or not there was improper political motivation.

In the lower courts, we heard testimony. We saw documents. It was unclear as to how exactly this decision to add this citizenship question, was reached. And then of course, within the past few weeks, we've seen this other evidence be discovered and be presented at the lower courts.

The Supreme Court that I've read so far, doesn't exactly address that evidence. But it does raise some question, here, as to whether or not the Commerce Department, as to whether or not the secretary, Wilbur Ross, was being --


SCHNEIDER: -- completely truthful as to why they added this question. So really, Poppy, this could continue to play out throughout the next few days, weeks, throughout this summer. Because this will go back to the court in the Southern District of New York, where the judge there will hear evidence.

It's important to note, when the judge got this additional evidence from the ACLU, the judge there said, "This is disturbing evidence. This is important --

HARLOW: Right.

SCHNEIDER: -- "evidence here, but I'm not going to step in because the Supreme Court --

HARLOW: Right.

SCHNEIDER: -- "is considering this question." Well, now, this judge in New York has the green light from the Supreme Court, to reopen this case, to explore this evidence. And then we'll see how this plays out, if eventually this citizenship question is added. But it will not be for now, as we face that July 1st deadline -- Poppy.

HARLOW: And will a decision be made by the time the 2020 Census actually does finally have to be printed. Jessica, before you go, do we know the count on this decision? Was it a 5-4 decision? And don't worry if we don't know yet.

SCHNEIDER: There were different counts. There were -- this was affirmed --


SCHNEIDER: -- in part as to standing, reversed in part as to some of it. So we're still going through the exact count --

HARLOW: I understand.

SCHNEIDER: -- as to all those broke down. So we'll get back to you --


SCHNEIDER: -- on that one.

HARLOW: -- understand.

SCHNEIDER: But it was -- it was written by the chief justice, John Roberts.

HARLOW: OK. OK. You broke it down so well. I'll let you get back to reading, Jessica. Thank you very much, and jump in when you have more.

Jeffrey Toobin, to you. Question of motivation and honesty here.

[10:50:03] TOOBIN: OK. I've now read the opinion, which helps.

HARLOW: Great.

TOOBIN: Or at least I've read enough to understand what it is. Basically, what the court has done -- and it did this unanimously -- is they said, "Back to the judge in the Southern District of New York" -- and that's a judge named Jesse Furman. He's a relatively recent appointee to the court by President Obama.

And they basically said, "Look at this issue again. Because the evidence is disturbing and not entirely clear and just -- and we don't really know the answer on the issue of political partisanship."

But if you read all the -- if you look at the full context, it certainly looks like -- to me, anyway -- that the citizenship question, at the end of the day, is going to wind up this questionnaire. If you look at what the more conservative justices wrote -- and there are five of them on the court -- it looks like the question is going to wind up on the surveys.

Now, it is also worth -- everything is controversial in this case, including the deadline. Because at one --

HARLOW: Right.

TOOBIN: -- one version of the deadline is that it's July 1st. But another version of the deadline is that it's October.

HARLOW: Right.

TOOBIN: So it is not necessarily the case that Judge Furman in New York needs to resolve this by next week. There is also --

HARLOW: But Jeffrey -- TOOBIN: -- another version of the facts here, that says the census questionnaire could be resolved in October, not in -- not by July 1st. But --

HARLOW: But if -- would --

TOOBIN: -- this is not a total victory for the administration. But it's certainly, reading these opinions, it suggests to me that the administration is probably going to win by the time the census goes out next year.

HARLOW: Well, but if it's the October deadline, if -- then let's say if that deadline, which would be the latest one, Jeffrey, you've got -- this is the end of their term and they're not going to reconvene again until the fall. So would they have -- if this came back up to the Supreme Court, or would the lower court's decision stand?

TOOBIN: What? My goodness, you mean the Supreme Court might have to work in the summer? Is there something --

HARLOW: So they would? That's interesting.

TOOBIN: -- like, unconstitutional about that? I mean, this is really an unbelievable thing that we sort of take it for granted, that the Supreme Court is entitled to take the summer off.

HARLOW: Right.

TOOBIN: Wouldn't it be nice for all of us.


TOOBIN: But in fact, the next thing that's going to happen is not at the Supreme Court. It's going to go back to Judge Furman in New York, and he's going to have to get briefs, hold -- probably hold some hearings. And he's going to have to address these questions. And then it will come up, back to the Supreme Court.


TOOBIN: And maybe, you know, the precious vacation for the justices will not be interfered with too much.

HARLOW: Maybe.

Elizabeth, to you, what's your read on this? Do you have the same read as Jeffrey does, that this ultimately may mean that the citizenship question -- we'll see, maybe -- ends up there?

WYDRA: Yes. I'm not so sure. You know, I think that with the Supreme Court's decision here, the eyes of America are on this issue like they've never been before. And as the case goes back to the lower court, we're going to see additional evidence, clear evidence. Evidence that, frankly, the American people will be paying more attention to because of the Supreme Court ruling today. And even before we got this new evidence from this deceased Republican

strategist, that the citizenship question was there to help the Republican Party and to empower white voters over voters of color, there was already disturbing evidence in the record, that Secretary Ross was not acting in the reasons -- for the reasons that he put forward to the court.

He claimed, first, that the census officials were the ones who asked him to put the question on the questionnaire. They made clear that that was not the case, that in fact it was coming from the administration, to put the citizenship question on there.

So there's already a lot of disturbing evidence out there. And I think as even more comes to the fore, as the case goes back to Judge Furman, who has done a spectacular job in this case, I think that the pressure on the Supreme Court is going to be even greater. And as they --


WYDRA: -- face some of the backlash from their Muslim ban ruling, I think they're going to be extra sensitive here.

HARLOW: Ron Brownstein, the final minute goes to you.

BROWNSTEIN: Look, you know, I -- this is just an enormously important decision, one that really gets to the question of how we deal with a changing America. And I think as everyone has said, there is going to be a lot more focus on it.

And I haven't read the decision, but I would assume this means that the racial discrimination side of it can go forward as well, out of Maryland. So it may be both of these issues, coming to the court. The five Republican-appointed justices indicated during the questions, they were inclined to let the administration do this.

But as Elizabeth said, the evidence is so strong and continuing to come out, that it will be an even starker choice if they allow it, if they ultimately allow it. Because I'd be surprised if the lower courts allow this question. It will probably be an issue of the Supreme Court overturning them, if it gets onto the census this fall.

[10:55:13] HARLOW: Thank you all very, very much. Two incredibly consequential decisions from the Supreme Court this morning. We appreciate it all. Jeffrey Toobin, Elizabeth, Ron, to you. And Jessica, just for her stellar reporting outside the court. That is not an easy job.

Thank you all for joining me. Jim and I will see you back here tomorrow. He's in Osaka at the G20, we'll have live coverage from there. Kate Bolduan picks up our coverage after this.