The Trump administration’s plan to put a question about citizenship on the 2020 census looks dead in the water.
The Supreme Court blocked the Department of Commerce, which oversees the Census Bureau, from including the question on the upcoming census in a 5-4 decision Thursday. The opinion, written by Chief Justice John Roberts, said the court “cannot ignore the disconnect” between the Trump administration’s justification for the citizenship question — enforcing the Voting Rights Act (VRA) — and the facts of the case.
"Unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale — the sole stated reason — seems to have been contrived," Roberts wrote.
The decision also sent the case back down a lower court, which had already ruled a citizenship question would violate the Administrative Procedures Act, which requires agencies to give reasonable explanations for implementing new policies. It’s possible the justice on that court could change his mind — although not likely.
“We’re not at the end of the road yet in terms of the case, but we’re darn near close to it,” Michael McDonald, an associate professor of political science at the University of Florida who specializes in elections, told VICE News.
The Commerce Department argued that adding the citizenship question would help the Department of Justice enforce the 1965 Voting Rights Act. In other words, the government argued that adding a citizenship question to the census — was needed to help protect the voting rights of people of color. The DOJ currently uses data from the American Community Survey to enforce the Voting Rights Act but claimed that information wasn’t detailed enough.
Athe same time, civil rights groups like the American Civil Liberties Union have warned the question could discourage undocumented immigrants and members of certain minority groups, including Hispanics, from responding to the Census over fears that their citizenship status would be shared with the Department of Homeland Security. A May Reuters/Ipsos poll found that a quarter of Americans didn’t believe the Census Bureau would keep citizenship information to itself.
The ACLU also said states could use citizenship information to draw legislative districts based on citizen population, which could encourage gerrymandering.
In a press call on Thursday, the ACLU framed the Supreme Court’s decision as a win for democracy. But the citizenship question isn’t dead, at least not yet.
Commerce Secretary Wilbur Ross could find a new way to argue that putting the citizenship question on the census would help enforce the Voting Rights Act — and that justification could convince the court of the necessity of the question.
“But that scenario is unlikely,” McDonald said.
A dishonest rationale
In December 2017, the Department of Justice sent the Commerce Department a letter asking to put a citizenship question on the census to better enforce the Voting Rights Act. But files found on a deceased GOP operative’s hard drive last month suggest a more sinister rationale for the question.
It turns out that Republican redistricting strategist, Thomas Hofeller, had written part of the memo. And in 2015, Hofeller had conducted a study that found that drawing legislative districts based on citizen population — instead of the overall population — would benefit “Republicans and Non-Hispanic Whites” and “would clearly be a disadvantage for the Democrats.”
“He was [the Republicans’] redistricting guru for their last three decades,” Dale Ho, the director of the ACLU’s Voting Rights Project and the lawyer who argued the case before the Supreme Court, said of Hofeller. “All those maps that [were] being challenged in the gerrymandering litigation — Ohio, North Carolina — those were drawn by Thomas Hofeller. He was the republican redistricting specialist.”
A number of studies have found that adding a citizenship question to the census could discourage certain groups, including Latinos and immigrants, from responding. That could affect how many Congressional representatives certain communities get, based on population.
“In terms of apportionment, [an undercount] could lead California, Texas, and potentially other states to lose a congressional seat,” Christopher Warshaw, an assistant professor of political science at George Washington University who testified in the Supreme Court case, told VICE News. “It'll also redistribute legislative districts within the state from urban areas to rural areas, because most immigrants — especially outside of Texas — tend to live in urban areas, so it means the urban areas will potentially get less representation in Congress.”
The damage may have already been done.
A recent study by the Urban Institute found that even if the citizenship question isn’t included on the census, “current discourse about immigration could suppress participation.” The study also found that even in the best-case scenario, the Census would undercount 0.27% of the U.S. population, more than 880,000 people. In the worst-case scenario, 1.22%, or nearly 4 million people, wouldn’t be counted.
“It's not just about the citizenship question being on there,” Diana Elliott, a senior research associate at the Urban Institute, told VICE News. “There are a lot of other factors at work this time around that could affect the count in different ways, namely a decade of underfunding has put the Census at risk.”
Correction 7/11/19 9:51 a.m.: A previous version of this story misquoted Chief Justice John Roberts. The story has been updated.
Cover image: Immigration activists rally outside the Supreme Court as the justices hear arguments over the Trump administration's plan to ask about citizenship on the 2020 census, in Washington, Tuesday, April 23, 2019. (AP Photo/J. Scott Applewhite)