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In a Win for Trump, SCOTUS Tosses Challenge to President’s Plan to Exclude Undocumented Immigrants From Census

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  • In a 6-3 decision, SCOTUS threw out a case on Friday that attempted to block an order from President Trump that would prevent noncitizens from being counted in the census for the first time in American history.
  • The court’s conservative majority said that it was too soon to see a ruling on the question. The three liberal justices dissented, arguing that the policy clearly violated federal law and centuries of legal precedent, thus was ripe for review.
  • If enacted, Trump’s order would exclude millions of people from the once-a-decade count that determines how congressional seats are apportioned and how billions of federal dollars are allocated.
  • While the decision marks a temporary win for the Trump administration, the practical effects are unclear as the Census Bureau has said it will not be able to deliver the totals to Trump before he leaves office.

SCOTUS Gives Trump a Win

The Supreme Court on Friday dismissed a challenge to President Donald Trump’s efforts to exclude undocumented immigrants from the 2020 census count, resulting in a temporary win for the administraiton.

The case stems from a memorandum Trump signed in July directing the Census Bureau to send him two sets of numbers from the once-a-decade population count that is used to allocate congressional seats and billions of dollars in federal funding.

Under the memo, the first set of numbers would count the total amount of people in every state, and the second would leave out all undocumented immigrants. The administration has reasoned that the full, traditional count could give states with large noncitizen populations more representation than they deserved.

Twenty-three states and several immigrant rights organizations immediately challenged the decision in separate cases, arguing that it violated the Constitution, federal law, or both. This illegal action, they said, would lead to a less accurate census count, thus causing some states to lose representation.

Three lower courts sided with the challengers and blocked Trump’s policy, but a fourth said it was not the right time to consider the case. The administration appealed the earlier rulings to the Supreme Court, which agreed to hear the case last month.

The Supreme Court’s most recent decision appears to fall in line with the fourth court’s assessment. In a 6-3 ruling, the highest court’s conservative majority stated that it was premature to decide the question at this juncture.

“At present, this case is riddled with contingencies and speculation that impede judicial review,” the justices said in an unsigned opinion. “We express no view on the merits of the constitutional and related statutory claims presented. We hold only that they are not suitable for adjudication at this time.”

In a dissent written by Justice Stephen Breyer and joined by Justices Sonia Sotomayor and Elena Kagan, the three liberals argued that Trump’s memo clearly violated federal statutes, widely accepted Constitutional interpretations, and historical precedent. They argued the court should be able to make a decision now.

Under the Constitution, congressional seats are to be apportioned using census data “counting the whole number of persons in each state.” The census has always included both citizens and noncitizens. Never has a president claimed the authority to exclude the latter.

If Trump is allowed to fulfill his unprecedented request, it would mark the first time in American history that noncitizens were left out of the count since the first census in 1790.

Practical Implications

The consequences of such a decision would be jarring. Neither the Trump administration nor its lawyers disputes the fact that removing undocumented populations from the census totals would shift representation and federal funds to states where the population tends to be older, whiter and typically Republican.

Numerous reports and studies have found that excluding the undocumented immigrant population from census totals would lead to millions being left out of the population totals used for reapportionment.

According to a Pew Research Center study published over summer, if noncitizen immigrants were excluded from apportionment, California, Texas, and Florida would each lose one seat in Congress. Meanwhile, Minnesota and Ohio — as well as Alabama, which is otherwise projected to lose a seat — would each gain one additional representative.

Despite the startling possible implications, it is currently unclear how much of a practical effect the high court’s decision will have. Technically speaking, the ruling does give Trump the ability to continue pursuing his efforts to exclude noncitizens, but the temporary victory may be limited.

By law, the Census Bureau is required to give the census data to the president by Dec. 31, but the agency has publicly said that it will not be able to reach the deadline this year because it has yet to resolve data errors and irregularities. The bureau got a late start this year because of delays in collecting in-person census data due to the pandemic.

As a result, the agency extended door-to-door efforts to the end of October instead of the initial date which was set for July, and asked the Trump administration to extend the December data delivery deadline until April 2021. 

Trump initially agreed, but in August, the administration abruptly reversed course and ordered the in-count to be cut short a month so that the Dec. 31 deadline could be met despite warnings from top bureau officials that the move would drastically skew the data and potentially leave many uncounted.

At the time, many experts said it was clear the administration had made the decision because in an attempt to ensure Trump would still be able to enforce his memo even if lost the election and was forced to leave office on Jan. 20.

It appears as though that plan may fail anyway. While the Census Bureau has not yet said when it expects it will deliver the final numbers to the president, documents released by the House Oversight Committee earlier this month cited sources that said the agency would not be able to deliver the data until Jan. 23, three days after President-elect Joe Biden is inaugurated.

Even if Trump is able to get his hands on the numbers before then, he will almost certainly face another barrage of legal challenges.

“This Supreme Court decision is only about timing, not the merits,” Dale Ho, the American Civil Liberties Union lawyer who represented some of the challengers, said in a statement. “If this policy is ever actually implemented, we’ll be right back in court challenging it.”

See what others are saying: (The Washington Post) (The New York Times) (Politico)

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Campaign Season Gets Rolling This Month With Primaries in 13 States

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Several of the contests taking place this month will serve as important tests for Trump-backed candidates and how much power the former president still has over the GOP.


May Primaries Start With Key Race in Ohio

The 2022 midterm season is officially heating up this month with 13 states heading to the polls.

Voters in Indiana and Ohio will kick off the busy month on Tuesday with several highly anticipated races, including one closely watched contest for the seat being vacated by long-time Senator Rob Portman (R-Oh.)

The fight for Portman’s seat has been a heated one: candidates have spent tens of millions of dollars, held numerous debates and forums, and at one point, two of them even got into a physical confrontation. 

The main reason there are so many eyes on this race is because it will prove to be a key test for former President Donald Trump and the influence he has over the party. While Portman has generally been moderate and, at times, more readily critical of Trump than many others in his party, the Republican primary campaign has basically been a fight to see who is the most in line with Trump.

According to FiveThirtyEight, all but one of the seven Republican senate candidates embraced the former president’s election fraud lies as they fought for his coveted endorsement in a state he won by eight points in both 2016 and 2020.

Trump, for his part, ultimately ended up endorsing Hillbilly Elegy author J.D. Vance in a move that surprised many, because Vance had previously been vocally opposed to the former leader and his competitors had spent months running ads noting that fact.

However, the fight for Trump’s backing appears to have been worth it. Last week, a Fox News poll found that support for Vance has surged by double-digits since Trump’s endorsement, making him the front-runner.

Still, as FiveThirtyEight reports, “other factions of the party haven’t given up the fight either — which means the primary will be a direct test of how much clout Trump has when other Republican elites dare to defy him.” 

Meanwhile, there are also concerns regarding the ongoing legal battle over Ohio’s congressional map and the confusion that has caused for the state’s election calendar. For weeks, it was widely believed the state’s primaries would be pushed back after the Ohio Supreme Court ordered GOP lawmakers to redraw their map.

The map had been gerrymandered to give Republicans 12 out of the 15 congressional seats in the state even though they had only won around 55% of the popular vote. Ohio voters also previously passed a constitutional amendment in 2018 that effectively banned partisan gerrymandering.

The election, however, is still going forward anyway, even as early voting was down a whopping 40% from the last election, and the legislative races will not be on the ballot Tuesday, meaning there will have to be a second primary, which will likely drive down turnout even more.

Other Major Races This Month

There are also other notable contests scheduled for later this month. On May 17, there will be two additional races for seats vacated by Republican senators in North Carolina and Pennsylvania that will serve as important indicators of the former president’s sway over the party.

Meanwhile, in Georgia, the main Trump test focuses on two statewide races for the positions currently held by Gov. Brian Kemp (R) and Secretary of State Brad Raffensperger (R). The two infamously angered Trump after they refused to help him overturn the election, and as a result, many are watching to see if the former president’s full-fledged pressure campaign against them will work.

In Georgia and other battlegrounds voting this month, Democrats are also hoping they can make inroads — particularly in Pennsylvania. But recent polls have not painted a good picture for the party. Last week, an NPR/PBS NewsHour/Marist poll found that 47% of voters said they were more likely to vote for the Republican in their district, while just 44% said they would back Democrats. 

The poll marked the first time in eight years that a Marist survey found the GOP with an advantage for congressional ballot tests. 

See what others are saying: (NPR) (FiveThirtyEight) (PennLive)

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New York’s Highest Court Strikes Down Democrat-Gerrymandered Map

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The move represents a major blow to Democrats, who stood to gain as many as three seats in Congress if their map had been accepted.


Appeals Court Ruling

The New York State Court of Appeals struck down a congressional map drawn by the state’s Democrats Wednesday, dealing the party a major blow.

In the decision, the state’s highest court agreed with Republicans who had argued that the map was unconstitutionally gerrymandered to benefit Democrats. The justices called the map “substantively unconstitutional as drawn with impermissible partisan purpose.”

The court also condemned the Democrats for ignoring a constitutional amendment approved by voters in 2014 that aimed to limit political influence in redistricting, which included the creation of an independent entity to draw maps that the legislature would then vote on. However, the commission created to prevent partisan gerrymandering was unable to decide on a map because of its own partisan stalemate. As a result, Democrats in the legislature took it upon themselves to draw a final map.

But the version that the legislature passed and New York Gov. Kathy Hochul (D) signed into law re-drew lines so that Democrats could have gained as many as three new seats in the U.S. House of Representatives. 

Such gains would be highly significant in the upcoming 2022 midterm elections, where Republicans are expected to make substantial gains and may very well take back the House. Unsurprisingly, Republicans sued, and a lower court struck down the map.

In their order, the Appeals Court justices took away the legislature’s ability to make the map and instead delegated that power to a court-appointed “neutral expert.” 

While the judges did say there was enough time to finish the map before the primary elections in June, they also added that the Congressional contests would likely need to be moved to August. Races for governor and other statewide officials, however, would stay the same.

Broader Trends

The Appeals Court ruling is unique in that it targets Democrats, but it also comes as part of the broader trend of state courts cracking down on gerrymandering — though most other instances have stemmed from GOP-drawn maps.

In just the first four months of 2022, state courts in Ohio, North Carolina, Kansas, and Maryland have all struck down redistricting plans crafted by lawmakers.

Unlike the New York ruling, some of those other courts have implied that they will still allow those maps to be used in the 2022 elections. Such a decision would very likely disadvantage Democrats even more.

See what others are saying: (The New York Times) (NPR) (The Washington Post)

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McCarthy Warned Far-Right Lawmakers Could Incite Violence After Jan. 6 in New Audio of Leaked Call

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The conversations represent a marked difference from the public efforts of McCarthy and other Republican leaders to downplay their members actions.


Leaked Audio

Four days after the Jan. 6 insurrection, House Minority Leader Kevin McCarthy (R-Ca.) expressed concern about far-right Republicans inciting violence and openly voiced support for censoring them on Twitter, according to audio published by The New York Times on Tuesday.

The recordings, which come from a call among party leaders and aides on Jan. 10, are by far the clearest evidence top Republicans acknowledged that their members played a role in stoking violence before the insurrection and threatened to do so after.

They also emphasize the vast difference between what top Republicans, especially McCarthy, said behind closed doors, and how they downplayed and ignored the actions of their members in public. 

One of the most notable elements of these recordings is that McCarthy and the others explicitly identified several individuals by name. They focused mainly on Reps. Matt Gaetz (R-Fl.) and Mo Brooks (R-Al.) as the primary offenders.

In the audio, McCarthy can be heard flagging Gaetz right off the bat.

“Tension is too high. The country is too crazy,” he added. “I do not want to look back and think we caused something or we missed something and someone got hurt. I don’t want to play politics with any of that.” 

Specifically, McCarthy and the others talked about how Gaetz had gone on TV to attack multiple Republicans for being unsupportive of former President Donald Trump after Jan. 6. They particularly expressed concern over his targeting of Rep. Liz Cheney (R-Wy.), who was a member of the leadership team and had already been facing threats.

Others on the call also noted that Brooks had spoken at the rally before the insurrection, where he made incendiary remarks that many have viewed as direct calls to violence. McCarthy said the public comments from his members “have to stop,” adding he would call Gaetz and have others do the same to tell him that this “is serious shit” and “to cut this out.”

Rep. Steve Scalise (R-La.), the second-ranking House Republican, asserted at one point that Gaetz’s actions were “potentially illegal.” 

“Well, he’s putting people in jeopardy, and he doesn’t need to be doing this,” McCarthy responded. “We saw what people would do in the Capitol, you know, and these people came prepared with rope, with everything else.”

Republicans on the call also mentioned incendiary remarks from other members, including Reps. Louie Gohmert (R-Tx.), Barry Moore (R-Al.), and Lauren Boebert (R-Co.). Cheney pointed to Boebert as a security risk, noting she had tweeted out incredibly sensitive information about the movements of top leaders like House Speaker Nancy Pelosi (D-Ca.) during the attack on the Capitol.

“Our members have got to start paying attention to what they say, too, and you can’t put up with that shit,” McCarthy added later. “Can’t they take their Twitter accounts away, too?”

McCarthy in Hot Water

The newly published recordings also come just days after The Times reported that McCarthy had told members on a call after the insurrection that he would urge Trump to resign.

McCarthy initially called the reporting “totally false and wrong,” but shortly after his denial, The Times received permission from their source to publish audio where he can be heard saying precisely that.

McCarthy, for his part, has tried to spin the situation, claiming that his remarks were still true because he never actually followed through on the plan to call Trump. 

Still, the situation prompted widespread backlash from the far-right faction of the Republican party. 

Multiple people expressed hesitancy about their support for McCarthy as Speaker of the House if Republicans take control of the chamber in the midterm elections. Some said they could not trust him.

Speaking on his show Tuesday, Foxs News host Tucker Carlson called McCarthy “a puppet of the Democratic Party.”

Gaetz also responded with ire, tweeting out a statement in which he referred to the call as “sniveling” and said of McCarthy and Scalise: “This is the behavior of weak men, not leaders.”

Other members mentioned in the call, however, appeared to brush it off. In a statement to Axios, Moore claimed that the story was engineered by “RINOS” (Republicans in Name Only), and that “Republicans will be more united than ever after taking back the House this November.”

It currently remains unclear whether these revelations with pose any long-term threat to McCarthy, but if Trump is any indication of the far-right party line, the House leader may be in the clear.

After The Times published the audio of McCarthy saying Trump should resign, the former president told The Wall Street Journal that the relationship between the two men was untroubled.

“I think it’s all a big compliment, frankly,” he added. “They realized they were wrong and supported me.”

See what others are saying: (The New York Times) (Axios) (The Washington Post)

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