For the second time, a federal judge has ruled against the Commerce Department’s decision to add a question about citizenship to the decennial census. The reason the question is so nefarious is that studies have shown that including the question will inhibit families or households with undocumented immigrants from answering the census, creating a severe undercount of the number of persons in the country. Since the reapportionment of seats in the House of Representatives relies on the distribution of all persons, not just citizens, as does the allocation of certain federal dollars, an undercount could adversely effect those states that have the most undocumented immigrants. Republicans, of course, in the existential quest to game the electoral system to remain in power, understand that the majority of undocumented people live in Democratic states and an undercount would thereby reduce Democratic representation.
The census is conducted by the Commerce Department, currently led by Wilbur Ross. The problem for the department in adding the question was that all available evidence indicated that simply asking the citizenship question would reduce the response rate and lead to an undercount. Ross then got the Justice Department to ask him to add the question in order to help it enforce the Voting Rights Act, a disgusting irony considering this administration’s total lack of respect for voting rights. Worse, Ross then lied to Congress and, by extension. the courts about the whole process, not only the data analyzing the effect of the decision but also how the decision to add the question was made.
In January of this year, a district judge in New York struck down the addition of the question, writing, “hundreds of thousands — if not millions — of people will go uncounted in the census if the citizenship question is included…That undercount, in turn, will translate into a loss of political power and funds, among other harms, for various Plaintiffs”. At the same time, the judge excoriated Commerce Secretary Wilbur Ross, charging that he “alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him” and had engaged in “a veritable smorgasbord of classic, clear-cut APA [Administrative Procedures Act] violations”.
Last Wednesday, a another district judge, this one from California, came to a similar conclusion. His ruling was even more delicious, writing that adding the question “threatens the very foundation of our democratic system” and would be “fundamentally counterproductive to the goal of obtaining accurate citizenship data about the public”. The ruling actually went farther than the New York decision saying that the question would violate the Enumeration Clause of Article I of the Constitution that requires “counting the whole number of persons in each State”. The judge also went further in his condemnation of Secretary Ross, saying his decision to add the question relied on “a cynical search to find some reason, any reason, or an agency request to justify that preordained result” and “was arbitrary and capricious, represented an abuse of discretion, and was otherwise not in accordance with law”. Ross, of course, has remarkable difficulty following the law, repeatedly lying about divesting his stock holdings on his financial disclosure forms.
While these decisions are certainly to be welcomed, this case will ultimately be decided by the Supreme Court and therefore, considering the current make-up of the Court, the issue is clearly not definitively decided. But Ross’ brazen violations of the APA certainly make the administration’s case harder to make. Interestingly, both the Court and the Trump administration have taken unique approaches to the case. In New York, expecting an unfavorable decision, the Trump administration tried to slow-walk the case while it sought a more favorable venue. One of those venues was the Supreme Court itself as the Trump administration bypassed the Court of Appeals entirely and appealed a decision on discovery in the New York case directly to the highest court. More strangely, the Court accepted that appeal after the New York trial had been completed. This has become a disturbing pattern with both the Court and the Trump administration. Both the Court and the administration feel comfortable bypassing the entire Court of Appeals process altogether and is yet another departure from our judicial norms.
There is certainly a valid reason for the citizenship question decision to be expedited as the census forms need to be finalized later this year in order to be ready for the count in 2020. And both the blue state plaintiffs and the Trump administration agreed to take this case directly to the Supreme Court. Arguments are expected to be heard in late April.
But, as we’ve learned over the last few decades, Republicans don’t really take no for an answer; they just find another angle to get what they want. And, in this case, it appears that the Commerce Department already is pursuing a back-up plan in case the Supreme Court rules against them. According to TPM, the Commerce Department has asked the Department of Homeland Security (DHS) to provide detailed information about millions of immigrants. That information would include addresses, Social security numbers, and, most importantly, alien registration numbers and citizenship status. As TPM notes, that would provide the Census Bureau with “a view of immigrants’ citizenship status that is even more precise than what can be gathered in door-to-door canvassing” conducted during the actual census.
As with the citizenship question, there are serious concerns that this data could be improperly used once it is shared. There were reports that the administration was considering passing the results of the citizenship question, should it appear on the census, to law enforcement in order to help with the administration’s efforts of mass deportations. That would seemingly violate the confidentiality of the census data. The sharing of DHS data now raises the concern the government is putting together a registry of non-citizens very much like what was used to illegally intern the Japanese during World War II.
It is critical to remember what the end goal here is for the Republicans. It was stated quite clearly in the 2016 Republican platform which declared, “In order to preserve the principle of one person, one vote, we urge our elected representatives to ensure that citizenship, rather than mere residency, be made the basis for the apportionment of representatives among the states”. Like partisan gerrymandering and voter ID, it is just another attempt to game the electoral system in order to ensure continued GOP rule.
Moreover, some conservative members of the Supreme Court have indicated that reapportionment based on total persons rather than citizenship may not apply to state governments. Needless to say, Justice Thomas has staked out the most extreme position on this issue, writing that a state “can use total population, eligible voters, or any other nondiscriminatory voter base”. This, of course, would open up another enormous opportunity for Republicans to further tilt reapportionment in state legislatures in their favor and also reduce the amount of state funds allocated to Democratic areas. A detailed breakdown of non-citizens within each state from the Census Bureau would provide the capability for the states to do exactly that.
So, despite the rulings from two federal judges striking down the citizenship question on the census, this question is far from decided. And it is clear that, should the Supreme Court uphold these lower court decisions, Republicans and the Trump administration are determined to get the citizenship information into the census by other means. Like partisan gerrymandering and voter suppression, this issue is just another prong in what has been a well-funded, decades-long Republican attack on the electoral system in order to tilt the playing field in their favor and ensure the party remains in power. Those efforts will not end and will actually increase as the party continues to slide into a permanent minority status based on the total number of votes actually cast.
Originally published at thesoundings.com on March 9, 2019.