LAW

The 2020 Census Is Rigged. The Supreme Court Is Poised to Okay That

May 21 2019

By Stephen Wilson, for Let's Fix This Country

It’s Job #1, the first thing the newly adopted Constitution instructed the United States to do, so important that it’s the document’s 6th sentence. It orders that an “actual Enumeration shall be made” of inhabitants every 10 years in order to apportion to the states, based on their “respective numbers”, delegates to the House of Representatives.

The census is next year. A fierce battle has been waged in the courts over the last two years between the Trump administration and the attorneys general of 18

states allied with a number of immigrant rights organizations over whether the Commerce Department should be allowed to add this single question to the census form: “Is this person a citizen of the United States?”

Those opposed know that the question will affect the count, and not in their favor. In this atmosphere of an administration that separates asylum applicants from their children, conducts deportation raids by Immigration and Customs Enforcement (ICE), and has a president who tweets that immigrants are criminals and rapists, the undocumented already in the country will be too fearful to submit their census forms with an obligatory answer to that question. Nor will they answer the door when census-takers make the rounds to fill in who's missing. The government is bound by law not to reveal the identity of those who participate, but with this administration trust is lacking.

The foremost concern of the 18 states is that, if undocumented immigrants are missing from the count, they will lose seats in the House of Representatives. Focus groups conducted by Census Bureau contractors have found this to be true. Its statisticians estimate that 5.8% of households with a non-citizen will not answer the census. That’s 6.5 million people. Other experts think the percentage will be far higher. If just 15% of non-citizens evade the census, that will be enough for New York and California to each lose a seat to Colorado and Montana.

And they will see a proportionate reduction in everything else that rides on census counts. Hundreds of billions of dollars over the next decade will be allocated to the states based on their populations for such diverse programs as HeadStart, Medicare, the Supplemental Nutrition Assistance Program (food stamps), Pell grants, school lunch programs, and highway spending. Researchers tallied that 132 government programs used census information in fiscal 2015 to allocate more than $675 billion. Businesses depend on census data for myriad purposes: where best to locate bank branches, supermarkets, fast food restaurants, distribution centers. States use census data to draw the boundaries of election districts for their own legislatures and government posts.

SO, WHY THE CITIZEN QUESTION?

Wilbur Ross, secretary of the Commerce Department, which is in charge of the census, testified before Congress last year that in adding the citizenship question to the census, he was he was responding “solely” to a Department of Justice request. He knew of no talks with the White House about the matter. Justice needed the data to aid in enforcing the Voting Rights Act, which protects against discrimination. For districts where a minority group is in the majority, to qualify for protection against nefarious attempts at dilution of their ranks, Justice has first to be certain that 50% or more of those eligible to vote (age 18 or over) belong to that minority else there’s nothing to protect.

Sounds good, right? Except, when one of three lawsuits went to court, a senior Justice Department official in sworn testimony said the data is not necessary. It has never been needed before and the Voting Rights Act dates from 1965.

AND THEN ROSS’S STORY UNRAVELED

Internal government documents that surfaced in the principal lawsuit in New York revealed calls, e-mails, and depositions showing Ross had lied to Congress. The White House had begun discussing including the question right after the Trump administration took office, primarily at the instigation of then chief strategist and immigration foe Stephen Bannon, and Ross was involved from the outset. As early as May 2017, irritated by lack of progress, Ross groused in an e-mail to an aide, “I am mystified that nothing has been done in response to my months-old request that we include the citizenship question”, which admits that he had requested it. Bannon urged that Ross “talk to someone about the census”, so Ross even met with Kris Kobach, former Kansas secretary of state and an anti-immigration extremist who is convinced, despite no evidence, that there is rampant voter fraud. President Trump had appointed Kobach to a panel to purge voter rolls, but it collapsed when states refused to submit them to the federal government.

Census questions cannot be changed by caprice. There is the federal Administrative Procedures Act that calls for officials to make changes based on evidence of their need and subject to review by other sections of the government. The Commerce Department would have no reason for asking the citizenship question, so Ross had needed a sham cause for a decision already made. He lobbied Homeland Security to come up with a reason, and then the Justice Department. The latter finally came through with a letter requesting the question’s addition to census forms for the invented reason of the Voting Rights Act. Which is to say that it was Mr. Ross who pressured Jeff Sessions and his Justice Department, not the other way around.

THE UNSPOKEN AGENDA

Conservatives complain that including the undocumented swells the counts of Democratic states such as California and New York, which results in their getting additional undeserved seats in the House of Representatives and more of federal dollars. The Constitution calls for everyone to be counted. Proof is that slaves, who were not citizens, were explicitly to be included in the count (albeit each as only 3/5th of a person). So the strategy was to find a way to discourage the undocumented from participating in the census. What better way than to scare them off by requiring everyone to answer ‘yes’ or ‘no' to “Is this person a citizen of the United States?”. Those without papers will be fearful to fill out the census questionnaire at all: a ‘no’ answer will invite deportation; a ‘yes’ answer invites a fraud conviction.

That undercounting in states with large immigrant populations would cost them seats in the House is as it should be for the many who think the number of representatives from a state should be based solely on the number of citizens, with persons here illegally left uncounted. In the House, it’s a zero sum game. Their number was capped in 1929 at 435 members. So taking from California and New York would mean giving more power to smaller, more rural, more conservative states. It also means heading off the gain in seats Texas can expect with its swelling immigrant population and handing a seat to, say, Alabama. In fact, Alabama has already asked a federal district court to rule that undocumenteds be excluded entirely from counts used to apportion those 435 House seats among the states.

The left sees this as yet another salvo in an emerging conservative campaign to eliminate non-citizens entirely from population counts used for redistricting, notwithstanding the 14th Amendment requirement that House apportionment be based on “the whole number of persons in each state” and a Supreme Court that has long ruled that “whole number” includes non-citizens. But that doesn’t govern in-state elections. In the 2016 Texas case, Evenwel v. Abbott, plaintiffs argued for sizing electoral districts by counting only eligible voters, because including undocumented immigrants gave urban areas more districts. The change would weaken liberal-leaning cities and give conservative rural areas more sway. Lacking a ninth justice, the case resulted in a 4-to-4 stand-off, but there’s a 5th conservative on the bench today. Missouri and Nebraska already tried, though unsuccessfully, to exclude non-citizens from the population totals used to redraw voting districts. Democrats see this as all of a piece with the many voter suppression laws enacted in Republican-controlled states, aimed at reducing Democratic votes by students, blacks and Hispanics.

”FATALLY UNDERMINE”

The Trump administration had unsuccessfully asked the Supreme Court to stop them, but lawsuits went to trial in three federal district courts — New York, California, and Maryland — to resolve the question of whether the citizen question was justified or was for political gain. In New York the trial ran for three weeks, argued by lawyers representing state attorneys general, city governments, and a cluster of civil-liberties advocacy groups who averred that a question about citizenship would “fatally undermine” the accuracy of the census, and who showed how the justification for the question’s inclusion had been “reverse engineered” to something other than its true motive.

The upshot? All three federal judges in the three states ruled that Wilbur Ross violated the law when he ordered the Census Bureau to add the citizen question. Running afoul of a “smorgasbord” of rules governed by the Administrative Procedure Act, as the New York judge, Jesse Furman, put it, Ross had “alternately ignored, cherry-picked, or badly misconstrued the evidence”; had “failed to justify significant departures from past policies and practices”; and had made false or misleading statements under oath. Ross proposed the question’s addition at the last minute before the April 1, 2018 deadline, short-cutting years of vetting customary for census changes. Against actual evidence, Ross has insisted that there is no clear evidence that the citizenship question would deter people from filling out census forms.

Furman wrote that there was insufficient evidence that Ross sought to discriminate against non-citizens — the Supreme Court had blocked Furman’s order that Ross be deposed to question him — but the administration’s motives were suspect judging from President Trump’s “racially charged” statements that Furman quoted: his branding immigrants as “these people from shithole countries”, that some immigrants “turn out to be horrendous”, are not “the best people”, and some “aren’t people, these are animals”. While those slurs were not prompted by the citizenship question, the judge wrote that indications that Mr. Trump may have been involved in the deliberations “help to nudge” the plaintiffs’ claim of intentional discrimination “across the line from conceivable to plausible.”

WHY WASN’T THAT THAT?

That was in November of last year. Then the Supreme Court inserted itself and heard the case in April of this year. Because the census needs to know by end June, the high court had skipped leap-frogged the appellate court level to accommodate the government, which needs to start printing millions of census questionnaires. The Supreme Court needs to step in to resolve cases where appellate courts render verdicts that disagree, but no one seems to be asking why the Court has invited itself to review a case in which three federal courts agree.

Questions from the conservative justices made it clear that they have already decided that the question will be included. No regard was paid to the lower courts’ rulings that Ross was guilty of many irregularities. Some questions were strangely divorced from what is happening in this country. See if you can make sense of Justice Samuel Alito’s reasoning for why failure to answer the citizen question can’t be attributed only to undocumenteds:

”Citizens and non-citizens differ in a lot of respects other than citizenship. They differ in socio-economic status. They differ in education. They differ in language ability. So I don’t think you have to be much of a statistician to wonder about the legitimacy of concluding there is going to be a 5.1% lower response rate because of this one factor.”

Neil Gorsuch’s comments were even more baroque. There are other explanations for non-response to questions, he said. The questionnaires may be too long, and less affluent households may not have the time to fill them out completely. “What do we do with the fact that we don’t know?”, Gorsuch asked.

But we do know. Census Bureau statisticians aren’t guessing; as said, they conduct focus groups, also field tests, and change only one variable at a time.

When New York Solicitor General Barbara Underwood labeled as false all the reasons that Ross had cited to justify adding the question, Chief Justice John Roberts challenged her assertion, asking, isn’t this critical data for enforcement of the federal Voting Rights Act? He evidently knew nothing of the back story, that the Justice Department request had been solicited as cover for the behind the scenes machinations of Ross, Bannon, and Koback, and of which Trump surely at least knew. Roberts seems to have swallowed whole what U.S. Solicitor General Noel Francisco had said:

"There’s no evidence in this record that the secretary would have asked this question had the Department of Justice not requested it. And there’s no evidence in this record that the secretary didn’t believe that the Department of Justice actually wanted this information to improve Voting Rights Act enforcement."

Justice Kagan said the record contained plenty of evidence that Mr. Ross had been “shopping for a need” among more than one government department. She was clearly irate describing those efforts to Francisco. Ross...

"goes to the Justice Department. Justice Department says we don’t need anything. Goes to D.H.S. D.H.S. says they don’t need anything. Goes back to the Justice Department. Makes it clear that he’s going to put in a call to the attorney general. Finally, the Justice Department comes back to him and says, ‘O.K., we can give you what you want.’ So you can’t read this record without sensing that this need is a contrived one."

She said she had searched the record and could find no stated reason why Ross had rejected the conclusions of his own experts.

It was interesting to discover that both Justices Kavanaugh and Gorsuch have proved to be adaptable. In arguing for the question’s inclusion, Gorsuch said that asking about citizenship was practiced around the world in “virtually every English-speaking country and a great many others”. But isn't it a conservative position that we should not let other countries’ laws affect our own? Hadn’t he in his confirmation hearing said, “We have our own tradition and our own history and I do not know why we would look to the experience of other countries”.

The Court's newest addition, Brett Kavanaugh, similarly listed half a dozen other countries that pose this question in their census, but in a 2010 case he had written, “international law norms are not domestic U.S. law”.

Moreover, Gorsuch has voiced pronounced opposition to policy decisions left to the executive branch that should be decided by Congress. Why then is he untroubled by this highly consequential peremptory altering of the census by the Commerce Department?

That the short count will affect the number of representatives sent to Congress never came up.

THE OUTCOME

In June we can expect the Court to hand down a 5-4 decision to include the citizenship question on census forms. Conservatives who profess to be strict constructionists adhering to the text of the Constitution, and who surely know that undocumented immigrants will avoid being counted, will be playing loose with the 14th amendment that says, “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State”.

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