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Friday, July 12, 2019

Trump's Census Surrender Hints at the Real Reason He Tried to Add a Citizenship Question

By Jacob Sullum - July 12, 2019 at 12:00PM

Donald Trump's census surrender, which represents the third time the administration has changed its plans regarding a citizenship question since the Supreme Court ruled against it two weeks ago, was weird even by the standards of an erratic and mercurial president who governs by tweet, often surprising his own underlings. The reason that Attorney General William Barr gave for backing down (for real this time, maybe)—that the administration would ultimately prevail, but not in time to keep the census on schedule—is no more obvious today than it was on June 27. But Trump's remarks did provide a clue to the real reason (as opposed to the "contrived" and "pretextual" one rejected by the Court) why Commerce Secretary Wilbur Ross decided, shortly after taking office in February 2017, that the 2020 census should ask U.S. residents about their legal status.

Trump said he was ordering the Census Bureau to mine citizenship data from other agencies' administrative records—something the bureau was already doing, although Ross had officially deemed it an unsatisfactory alternative to directly asking about citizenship in the census. "Knowing this information is vital to formulating sound public policy, whether the issue is healthcare, education, civil rights, or immigration," the president said. But later he added: "This information is also relevant to administering our elections. Some states may want to draw state and local legislative districts based upon the voter-eligible population."

The 14th Amendment says "representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed." That rule, however, applies to Congress, not to state and local legislatures. The Supreme Court has not resolved the issue of whether drawing state and local legislative districts based on eligible voters rather than all residents is consistent with equal protection and the "one person, one vote" principle. But it arguably is, which is why the late Republican gerrymandering whiz Thomas Hofeller, who was in touch with Trump's transition team, was so keen on the idea of obtaining better citizenship data.

As Matt Welch noted here in May, Hofeller concluded that redrawing Texas legislative districts based on voting-eligible population "would be advantageous to Republicans and non-Hispanic whites." But that project required more-detailed data on citizenship. "Without a question on citizenship being included on the 2020 Decennial Census questionnaire," Hofeller wrote, "the use of citizen voting age population is functionally unworkable." Not surprisingly, the states challenging the citizenship question seized upon the recently uncovered evidence regarding Hofeller's scheme as further reason to question the administration's motives.

The other, more commonly recognized way in which a citizenship question could disadvantage Democrats is by discouraging responses from households that include unauthorized residents. Census Bureau staff estimated that the deterrent effect could result in an undercount of about 6.5 million people, which could mean less representation and federal funding for places where illegal immigrants are concentrated—places that tend to elect Democrats. "It is clear [Trump] simply wanted to sow fear in immigrant communities and turbocharge Republican gerrymandering efforts by diluting the political influence of Latino communities," the ACLU's Dale Ho, who argued the census case in the Supreme Court, told The New York Times.

That may well be true, but all the administration had to do if it wanted to ask about citizenship in the census was come up with one or more plausible, nonpartisan reasons for doing so early in the process—reasons like the ones to which Trump alluded yesterday. Given the commerce secretary's broad discretion to determine census questions, even "we would like to have a better idea of how many illegal immigrants live in the United States" would have sufficed. Instead Ross made the decision for unstated reasons, then spent months scrambling for a rationale before settling on the Voting Rights Act cover story that the Court called a "distraction."

"In my view," Barr said, "the government has ample justification to inquire about citizenship status on the census, and could plainly provide rationales for doing so that would satisfy the Supreme Court." If so, why didn't it do that the first time around? Trump blamed "meritless litigation" for defeating his plan to add a citizenship question. But a more competent administration would have anticipated that litigation and beaten it back in time.


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