Update 7/3 5:30 p.m.: The Department of Justice reversed its position Wednesday, shortly after President Trump tweeted that reports that the administration was abandoning the question were “fake news.” In a call with a Maryland judge, the DOJ said they were “instructed to see whether there is a path forward” to putting the question on the census and will appeal the Supreme Court if necessary.
After a half-dozen lawsuits and a Supreme Court case, the Trump administration is letting printing of the 2020 census proceed without a controversial question about U.S. citizenship — at least for now.
“We can confirm that the decision has been made to print the 2020 Decennial Census questionnaire without a citizenship question, and that the printer has been instructed to begin the printing process,” Kate Bailey, an attorney with the Department of Justice’s Federal Programs Branch, said in an email obtained by lawyer Daniel Jacobson.
A DOJ spokesperson told VICE News the question won’t be on the forthcoming census.
Last week, the Supreme Court temporarily blocked the Commerce Department, which oversees the Census Bureau, from including the question on the upcoming census. Chief Justice John Roberts said the court could not “ignore the disconnect” between the administration’s justification for the question — enforcing the Voting Rights Act — and a wealth of evidence that suggested the citizenship question would be used to disenfranchise voters of color.
Roberts’ decision sent the case back to the lower court in New York, which had previously ruled against the Commerce Department.
Put simply, the Supreme Court was telling the administration to find a new argument for the citizenship question, because the one it gave before didn’t hold water.
The Commerce Department had argued it was adding the citizenship question to help the Department of Justice better enforce the Voting Rights Act — and, in fact, that it was doing so at the DOJ’s behest.
But files found in late May on a deceased GOP operative’s (Thomas Hofeller) hard drive suggested that the VRA argument was, as the Supreme Court called it, “a distraction.” The Department of Justice did ask the Commerce Department to add a citizenship question to the census in December 2017, but part of that request was written by Hofeller, a notorious Republican redistricting strategist.
Two years earlier, Hofeller had published a study that found that drawing legislative districts based on citizen population would benefit “Republicans and Non-Hispanic Whites.” As an added bonus, doing so “would clearly be a disadvantage for Democrats.”
“In light of the Supreme Court's ruling, the Trump administration had no choice but to proceed with printing the 2020 census forms without a citizenship question,” Dale Ho, the director of the ACLU’s Voting Rights Project and the lawyer who argued the Supreme Court case, said in a statement. "Everyone in America counts in the census, and today's decision means we all will.”
Several experts warned that adding a citizenship question to the census could discourage some groups — including immigrants and Hispanics — from responding altogether, which could lead to a drastic undercount. That undercount would’ve been especially pronounced in places with large concentrations of immigrants, including Texas, California, New York, and Florida. And if enough people refused to respond, an undercount could cause those states to lose congressional seats, Christopher Warshaw, an assistant professor of political science at George Washington University who testified in the Supreme Court case, told VICE News.
Trump’s camp knew a citizenship question could benefit them long before he was even president. During a June hearing before the House Committee on Oversight and Reform, former Kansas Secretary of State Kris Kobach admitted that he had discussed the possibility of adding a citizenship question with the Trump campaign in 2016. The White House tried to block Kobach from testifying in that hearing.
The controversy and lawsuits surrounding the citizenship question may have caused the administration to miss the July 1 printing deadline for the 2020 census. As of Monday, the census materials did not appear to have been approved by the Office of Management and Budget, NPR reported. That may be why the Commerce Department decided to move forward without the question.
But some experts say the discussions surrounding the citizenship question may have already discouraged response rates. A study by the Urban Institute found that even in the best-case scenario, “current discourse about immigration could suppress participation,” and as many as 880,000 people — 0.27% of the U.S. population — could still be undercounted.
Cover: This March 23, 2018, file photo shows an envelope containing a 2018 census letter mailed to a U.S. resident as part of the nation's only test run of the 2020 Census. A trial will begin in federal court on Monday, Jan. 7, 2019, in San Francisco, over the Trump administration’s decision to add a citizenship question to the 2020 U.S. Census. (AP Photo/Michelle R. Smith, File)