Notice & Comment

Administering Democracy: Policing a Partisan Census

The Census Case, argued tomorrow, could influence elections for the next decade. The decennial count forms the basis for the apportionment of congressional districts and state redistricting efforts. Suffice to say that a lot of hand-wringing goes into counting people. No wonder that litigation was swift to follow the Secretary of Commerce’s decision last March to add the following question: Is this person a citizen of the United States? The immediate fear was that the question would skew response rates, particularly among the Hispanic population. Those inaccuracies, in turn, would ultimately benefit the Republican Party that helped appoint the Commerce Secretary. Some thus perceived the agency’s decision as a nakedly partisan maneuver.

The Department of Commerce, along with the Census Bureau within it, is one of many federal agencies that make decisions with electoral consequences. Think of the Federal Election Commission or the Department of Justice’s role in the Voting Rights Act. In previous work, I have suggested that perhaps administrative law should operate differently in the electoral domain. In other words, maybe there should be a kind of administrative electoral exceptionalism. After all, much of administrative law attempts to legitimate the decisions of bureaucrats through their connections to electoral accountability. Many courts, for instance, give interpretive deference because agencies channel the view of a President “directly accountable to the people,” while judges do not.

In the context of election regulation, however, this political control model falters. Elections no longer serve as a check on the regulatory process, since election administration influences the outcomes of elections themselves. As a result, there is a circularity: the very source of legitimacy for the agency action is a function of the agency action itself. Elections are a less reliable constraint on agency decision-making when they reflect efforts to distort signals of voter disapproval. One related fear is that of partisan entrenchment, the specter of an appointed administrator who can manipulate the voting process to keep her favored party in power. When a core premise of administrative law is upended in this manner, it makes sense for courts to reconceive how they review agency decisions.

Two related observations further support this conclusion: first, courts have already been adapting other bodies of law to the electoral context; and second, they have also already tailored administrative law to specific domains. As to the first point, consider how courts apply constitutional law to election disputes. The First Amendment, for example, treats electoral speech differently than non-electoral speech, as many have pointed out. Under the Equal Protection Clause, some redistricting cases allow for more race-conscious line-drawing than permitted elsewhere by adopting a “predominant” rather than a “motivating” factor test. Similarly, the one-person, one-vote standard is one of the only contexts in which strict scrutiny is applied in the absence of a discriminatory purpose or suspect classification. Many of the concerns animating electoral exceptionalism in constitutional law carry over to administrative law.

And despite administrative law’s trans-substantive aspirations, courts have long tailored it to specific domains. As Richard Levy and Robert Glicksman put it:”[I]n  some  areas,  precedents  concerning  particular  agencies  have  emerged  that  diverge  and  remain  isolated  from  the  larger  body  of  administrative law.” In other words, courts have already been adapting administrative tenets to confront unique regulatory arenas. So it would hardly be revolutionary to do so when federal agencies have a hand in election administration. To be sure, there would be boundary problems: what does and does not constitute election administration? But courts could confront these difficulties on a case-by-case basis.

All of this finally brings me back to the Census Case. The lawsuit raises many legal issues, including a constitutional challenge, but two grounded in the Administrative Procedure Act are of particular relevance. First, the government argues that Congress has “committed” unreviewable discretion to the Commerce Department to conduct the census. On this view, courts cannot second-guess the Secretary’s decision. This argument amounts to an issue of statutory interpretation: did the Census Act’s delegation to the Secretary lack any meaningful standard; was there “no law” for a court to “apply”?

In confronting this question, the Court must already recognize administrative law’s strong presumption in favor of judicial review. But that presumption should be even stronger when a federal agency’s decision directly implicates election administration. Perhaps even more so when the decision comes from an executive agency like the Department of Commerce, with a head directly appointed by the President and removable by him at will. In these circumstances, the risk of partisan entrenchment is highest. Put in John Hart Ely’s terms, the channels of political change are especially threatened, and for a minority group in particular. So there is a core role for courts to step in to reinforce the mechanisms of democratic representation. (The House’s amicus brief nicely emphasizes this argument as well).

In addition, the government also appeals the district court’s conclusion that the decision to add a citizenship question was arbitrary and capricious. The Court’s review must essentially ask whether the agency’s decision was not a product of informed expertise. Are there “smoke signals” that the administrator was motivated instead by politics, personal bias, or other factors not allowed by statute? While this standard has sometimes been described as a judicial “hard look,” Adrian Vermeule and Jacob Gersen find that the Supreme Court is actually extremely deferential under this standard. (As of 2015, “agencies have won no less than 92% of the 65 arbitrariness challenges decided on the merits since the 1982-83 Term.”).

Whatever the general wisdom of this deferential stance, arbitrary and capricious review should be more searching in the electoral context. Because the political control model of administrative law is unavailing here, there is even more pressure for agency legitimacy to rest on technocratic expertise. Genuinely hard look review is thus necessary to help ensure that election-related agencies make factual and scientific judgments based on the evidence available in the record.

To be sure, it is important to recognize that even expertise-based arguments may be naïve in a context where the “experts” themselves can have perceived partisan motivations. Some have found, for instance, that the career civil service tends to be more left-leaning than political appointees. Perhaps even more important, then, for courts to give more weight to bipartisan forms of expertise. It is thus notable that in this case, there is a bipartisan consensus of five former Census Bureau Directors that adding a citizenship question “will have an adverse effect on the accuracy of the census.”

That all said, on the facts here, the Court would not necessarily need to rely on election-specific principles of administrative law to conclude that the agency acted illegally. There is good reason to think that the Department’s decision fails even minimal arbitrary and capricious review: the Secretary violated longstanding protocols of the Census Bureau; disregarded the recommendations and findings of the agency’s experts; and mischaracterized aspects of the record. But to the extent that the Supreme Court is tempted to avoid review or otherwise extend deference, it would do well to remember that elections — and the agencies that administer them — require special constraints.

In a time of political polarization, the stakes could not be higher.

[Cross posted at TakeCare]

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