Litigants Against Census Citizenship Question Suffer Setback

Is racial discrimination really at the heart of the administration's census question?

One of the contentious cases before the Supreme Court this term involves the legality of the Trump administration’s decision to reinstate a question on citizenship in the 2020 census questionnaire. During the oral argument of the case last April, the conservative-leaning justices appeared inclined to allow the inclusion of the question. "Citizen voting age population is the critical element in voting rights enforcement, and this is getting citizen information," Chief Justice John Roberts said. Since the oral argument, however, new documentary evidence has surfaced that opponents of the citizenship question believe rebuts the administration’s claim that the purpose of the citizenship question is to enforce the Voting Rights Act for the benefit of minority communities. Rather, they argued, the newly discovered evidence shows highly partisan and discriminatory motives. As a result, they took the evidence to one of the federal district courts that heard their original case, and also submitted a filing to the Supreme Court, hoping to put the Supreme Court’s review on hold. So far, they have failed in that effort.

The new evidence consisted primarily of a study by a gerrymandering expert, relied upon by Republicans, who had recommended the question to ostensibly reduce the response rate of Hispanics and other minorities. Thus, the plaintiffs argue, the administration’s real purpose has been exposed – to deter Hispanics and other minority groups from responding to the census questionnaire. The resulting undercount of Hispanics and other minorities, the argument goes, would skew the population figures used for congressional redistricting purposes in the Republicans’ favor.

The plaintiffs challenging the census question hoped to use the new evidence of alleged political bias to stop the Supreme Court from ruling in favor of the Trump administration later this month. They went back with the new evidence to one of the federal district court judges, Judge Jesse Furman, who had originally ruled in their favor. "Damning new evidence reveals hyper-partisan and racially discriminatory motives at the root of the citizenship question," they claimed. Justice Department officials countered that the plaintiffs were advancing "a conspiracy theory involving a deceased political operative that essentially hinges on wordplay."

While acknowledging Secretary of Commerce Wilbur L. Ross, Jr.’s constitutional and legislative authority to reinstate the citizenship question on the 2020 census questionnaire, Judge Furman had sided with the plaintiffs in his initial ruling that the Supreme Court is presently considering. He concluded that “the particular exercise of that authority by Secretary Ross may have violated” the plaintiffs’ constitutional rights. He gave credence to the plaintiffs’ allegation that “Secretary Ross’s decision to reinstate the citizenship question on the 2020 census was motivated by discriminatory animus and that its application will result in a discriminatory effect.”

The plaintiffs must have expected Judge Furman to immediately seize upon the new evidence of such alleged discriminatory animus and ask the Supreme Court to suspend its review until the district court can undertake more fact-finding. That did not happen, however. Judge Furman refused to consider the new evidence of alleged bad faith at this time. Thus, the Supreme Court is still expected to issue its ruling on the merits this month unless it decides on its own initiative to remand the case to Judge Furman’s court in light of the new evidence.

New York Times columnist Linda Greenhouse, who has written frequently about the Supreme Court, weighed into the census citizenship question controversy with an op-ed article published on June 6th entitled “Who Cares About the Supreme Court’s ‘Legitimacy’?” She agreed with the characterization of the new evidence as a “smoking gun.”

“In a rational world,” Ms. Greenhouse wrote, “the Supreme Court would hit the pause button on the pending census case to take account of new evidence that the Trump administration’s stated reason for adding a citizenship question was a fiction that masked its flagrantly partisan motive.”

Ms. Greenhouse, like the plaintiffs who unsuccessfully ran back to Judge Furman for the purpose of trying to use the new evidence to sidetrack the Supreme Court's current deliberations, are raising a red herring. If Justice Department officials lied to the court about the administration’s motive for wanting to include the citizenship question in the 2020 census questionnaire, Judge Furman can consider appropriate sanctions. However, irrespective of motive, the legality of the citizenship question should turn on whether it can be shown to be reasonably related to some legitimate government purpose.  Common practice for much of the nation’s history points to the objective reasonableness of restoring the citizenship question, irrespective of Secretary Ross’s or President Trump’s subjective intent.

As Ken Paxton observed in a column he wrote for The Hill last year, “a citizenship question has appeared in some form or another on censuses throughout our history.” Indeed, Thomas Jefferson first recommended back in 1800 an inquiry to collect more detailed data about the “inhabitants of the United States” beyond simply a counting of the overall population. This would include an inquiry into “the respective numbers of native citizens, citizens of foreign birth, and of aliens.” The purpose of such an inquiry, the founding father said, was to “more exactly” distinguish “the increase of population by birth and immigration.” Beginning in 1820, the census included a question asking how many “foreigners not naturalized” lived in each household. This question was asked at various intervals between 1820 and 1890, and then in every census until 1950. After a 20-year lapse, the citizenship question appeared again in the long-form census questionnaire from 1970 through 2000.

The dispositive issue in the case now before the Supreme Court should be the executive branch’s authority to reinstate the citizenship question, which Judge Furman himself conceded the Secretary of Commerce possesses. Probing the sincerity of the Trump administration’s stated justifications for its decision by reference to extrinsic documents, including the recently discovered study prepared by a Republican political operative years before President Trump took office, should be beyond the purview of the judiciary.

The Supreme Court's majority decision last year in the so-called travel ban case, Trump v. Hawaii, reaffirmed the judiciary’s “deferential standard of review across different contexts and constitutional claims.” Chief Justice Roberts wrote that in considering the constitutionality of an executive branch policy within its scope of authority the Court “may consider plaintiffs’ extrinsic evidence, but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.”

Applying Chief Justice Roberts’ deferential standard of review to the census citizenship question, which Judge Furman refused to do, there are a variety of government uses for citizenship data relating to such valid purposes as enforcement of voting laws and proper allocation of federal grants to states that are available only to eligible U.S. citizens and permanent residents. It is also premature to claim a discriminatory impact before the census with the citizenship question is even administered, let alone used for apportionment and federal funding allocation purposes. It is sheer speculation at this point to assume that there will be a direct causal relationship between the inclusion of the facially neutral citizenship question and a disproportionately reduced response rate among Latinos and “other immigrant communities of color.” It is even more speculative to assume, as plaintiffs allege, that such individuals will necessarily suffer discriminatory representation apportionment and allocation of federal grants in future years following the taking of the census.

The Supreme Court will hopefully dismiss the plaintiffs’ bogus challenges to the census citizenship question with prejudice.

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