What the Blockbuster Documents Uncovered This Week Mean for the Census Citizenship Case at the Supreme Court

With clear evidence that the Trump administration wants the question added purely for political advantage, it’s hard to imagine how the justices could allow it to remain.

May 31, 2019
census

New documents filed Thursday in a lawsuit challenging the 2020 census’ citizenship question reveal that the impetus for the Trump administration’s addition of the question was to undercut the voting power of Democrats and people of color.

These revelations will make it much harder for the Supreme Court to permit the question — at least with a coherent decision. In addition to the evidence already before the court, the documents further undermine the administration’s primary justification for adding the question: helping the Justice Department better enforce the Voting Rights Act (VRA).

What have the courts found so far about the administration’s reasons for adding the citizenship question?

Three federal courts have already ruled that the administration’s stated reason for adding the question — to enforce the VRA — was not its real reason. As the district court judge in New York found, “the evidence reveals that Secretary Ross was aggressively pressing to add a citizenship question to the census before the idea of justifying it on the basis of VRA enforcement was first floated.” The court also determined that Ross “actively lobbied other agencies to make the request [for the question]” and that his “aides then fed DOJ with the rationale for the request rather than vice-versa.” The district court judges in California and Maryland made similar findings in their decisions.

Contrary to what the administration has said, collecting citizenship information on the census would not help enforce the VRA, but would in fact make enforcement of the law more difficult. That’s because, as the New York judge found, it would “produce less accurate and less complete citizenship data” than alternative sources already provide.

No one disputes that the citizenship question will lead to a significant undercount in minority communities, meaning that those communities will find it more difficult to prove that they have sufficiently large populations to vindicate their rights under the VRA. As briefs filed in the Supreme Court case show, including one filed by the Brennan Center and other voting rights groups, the VRA has been enforced successfully for decades using citizenship data produced from other sources.

In short, it was already clear from the record in the citizenship question cases that the Commerce Department contrived its VRA rationale. What was missing until now is clear evidence of the administration’s real reason for adding the question.

What do the new documents say about the real reason for the citizenship question?

The documents released yesterday make clear that the administration’s true motivation for adding the citizenship question is to enable a political power grab that would benefit Republican voters while disenfranchising Democrats and people of color.

These documents come from the hard drive of Thomas Hofeller, a deceased Republican strategist known for his role in engineering extreme partisan gerrymanders around the country. According to testimony by Ross’ advisor, Mark Neuman, Hofeller was the “first person” who suggested adding a citizenship question on the census to the Trump transition team. For what purpose? According to Hofeller’s files, in 2015 he conducted a study on changing the basis of redistricting in order to benefit the Republican party. He concluded that adding a citizenship question to the 2020 census for the purpose of changing redistricting would be “advantageous to Republicans and non-Hispanic Whites” and “a disadvantage to the Democrats” in the next redistricting cycle. As a result, he added, such a move would “provoke a high degree of resistance from Democrats and the major minority groups in the nation.” His study made no mention of the VRA.

Fast forward to August 2017. At the same time Ross was lobbying other federal agencies to request the addition of the citizenship question, Hofeller ghostwrote parts of a draft letter, supposedly from the Justice Department, claiming that the citizenship question is necessary to help enforce the VRA, the new documents revealed. Hofeller’s draft language was incorporated into the final letter that the Justice Department eventually sent to Commerce in December 2017 requesting the question.

These new revelations are inconsistent with the testimony provided by at least two of the administration’s witnesses in the citizenship question cases, according to papers filed in those cases yesterday. (The plaintiffs in the citizenship question cases are asking the court to sanction those witnesses.)

What does all this mean for the case pending before the Supreme Court?

As a legal matter, the Supreme Court already had all the facts needed to find that the Commerce Department acted unlawfully when it added the citizenship question and to strike down the question. Indeed, it already would have been very hard for the court to write a rational opinion defending the question.

The record in the case is replete with violations of the Administrative Procedure Act, the law that governs how federal agencies can make decisions. Basing an administrative decision on a pretextual rationale is a violation of that law in and of itself. But Ross also, among other things, completely disregarded evidence showing that the citizenship question will lead to approximately 6.5 million people going uncounted in the 2020 census — a population equivalent to the 18th largest state in the country. Ross also made the decision to add the question without testing it, a stark departure from the Census Bureau’s normal policy of extensively testing questions to ensure that they will not significantly affect the accuracy of the count before adding them to the census.

On top of that, Thursday’s revelations make it exponentially more difficult for the Supreme Court to uphold Ross’ decision. The real reason for the Trump administration’s desire to add the citizenship question is now out in the open — and it shows that the administration is more invested in pursuing political gain than ensuring that one of the federal government’s most basic and important constitutional duties (ensuring a complete and accurate census) is carried out correctly.

What is more, the real reason — undermining political representation for minority voters — is itself an impermissible reason under the Constitution. With such stark and public evidence of an illicit purpose and an improper process behind adding the citizenship question, it is hard to imagine how the court can persuade the public that it is reasonable to uphold the question. The situation demands a forceful judicial response making it clear that the court can provide a check on clear-cut abuses of power.

(Image: J. Scott Applewhite/AP)