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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

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)