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What a disaster.
Is President Donald Trump’s effort to add a question about citizenship to the 2020 census finally about to end?
On Thursday morning, there were a flurry of reports that Trump planned to escalate the new battle, by issuing an executive order to make sure the question — currently blocked by the Supreme Court — is included.
Yet by the afternoon, ABC News was reporting that Trump was now expected to back down — that he’d end his push to add the question to the census, and that his executive action would instead instruct “the Commerce Department to survey the American public on the question through other means.”
We won’t know for sure until Trump’s announcement, planned for 5 pm Eastern time.
But the backstory is that last month, Chief Justice John Roberts surprisingly joined the Supreme Court’s four liberals to block the citizenship question from the census. The problem, per Roberts, wasn’t the question itself — it was that Commerce Secretary Wilbur Ross gave a “contrived” explanation for why he was doing it, rather than a “genuine” one.
It seemed at least theoretically possible that the administration could get a do-over, going through a new process to add the question. Whether they would do so has been a major source of confusion over the past two weeks. Though it briefly appeared the administration was giving up on the effort — the Commerce Department even confirmed it had begun printing the census without the question — Trump then ordered his team (via tweet) to press onward. There proved to be a host of practical and legal difficulties that have only worsened in recent days, though, and the plan to move forward has yet to materialize.
So if Trump does back off, it would be a major victory for Democrats and activists who have challenged the move, and for people who simply want the census to be accurate. Including the question, experts warned, could have resulted in lower response rates among noncitizens and Latinos (which many believed was in fact the Trump administration’s goal).
It’s unclear how much of a difference dropping the question would make, but to the extent that this was a plot to undercount heavily Latino states and therefore advantage Republicans in the next redistricting for the House of Representatives, it seems to have been foiled — if the reports that Trump is abandoning the effort prove accurate, that is.
What’s at the heart of the census citizenship question controversy
The census is ideally supposed to count every person residing in the United States — citizens, noncitizen legal residents, and unauthorized residents. The state results are particularly important in determining how many seats each state gets in the House of Representatives, and for population-based federal funding formulas.
In addition to the standard basic demographic questions, the Trump administration wants to ask all respondents: Is this person a citizen of the United States?
There is precedent for this; many previous versions of the census have asked about citizenship. But such a question hasn’t been on the short-form survey (given to all respondents since 1950), and it wasn’t included on the long-form survey (given to a more limited sample) either in 2010.
In any case, critics have argued that the true purpose of resurrecting the question is to mess with the results — either to benefit the Republican Party and red states or to advance the Trump administration’s anti-immigration agenda.
The widespread expectation is that the question would stoke fear among unauthorized immigrants and their family members, scaring off millions of mostly Latino residents from responding, and meaning states where those residents are concentrated will be undercounted. (Those states, which mostly favor Democrats, would then get smaller House of Representatives delegations and less federal funding because of the undercount.)
Voting rights advocates also feared that collecting this data on the census could help Republicans change the basic math for how redistricting works — to assign states House seats based on the citizen population rather than the total population, as is the current practice.
Roberts has no problem with the question itself — but blocked it because Wilbur Ross gave a bogus reason
When Commerce Secretary Wilbur Ross announced his decision to add the citizenship question to the census in early 2018, though, he claimed he had a much more benign rationale for doing this — a downright admirable one.
Ross (whose department includes the Census Bureau) claimed he was actually adding the citizenship question at the request of the Justice Department. DOJ, he professed, really wanted new data on citizenship to help better enforce the Voting Rights Act (VRA) — so they could help better protect minority voters’ rights.
That never really sounded plausible for the Trump administration, and in fact it was an utter sham, as ensuing lawsuits and court proceedings in three different states made clear.
Ross and his team had been trying to figure out a justification for adding the question for some time, long before they’d shown any interests in the VRA. It was, in fact, the Commerce Department that urged Justice to make that VRA request, rather than the other way around. (The Justice Department seemed to have little interest in the matter beyond doing Ross a favor.)
These misrepresentations really stuck in Chief Justice John Roberts’s craw. Late last month, Roberts joined the Supreme Court’s four conservatives to rule that asking about citizenship on the census is in fact constitutional. But he then joined the four liberals to block the question anyway — because, he said, Ross had given a phony justification for the move.
The New York trial had convincingly demonstrated that Ross’s “sole stated reason” for including the citizenship question was a “contrived” pretext, Roberts argued. This, he said, violated agencies’ obligation under administrative law to offer “genuine justifications” for action.
The Trump administration has since struggled to find a path forward
What has ensued since then has been a mess.
Despite some initial pushback from Trump to the Court’s decision, on July 2 — the week after the ruling — it seemed that the administration had decided to simply give up. The Justice Department told opposing lawyers that a decision had been made not to include the citizenship question, and Ross announced that census form printing would begin without it.
But the next morning, Trump decided he didn’t want to give up without more of a fight:
The News Reports about the Department of Commerce dropping its quest to put the Citizenship Question on the Census is incorrect or, to state it differently, FAKE! We are absolutely moving forward, as we must, because of the importance of the answer to this question.
— Donald J. Trump (@realDonaldTrump) July 3, 2019
Somewhat abashed Justice Department attorneys then had to explain to a judge that they didn’t really know what was going on. “The tweet this morning was the first I had heard of the President’s position on this issue,” one said. “I do not have a deeper understanding of what that means at this juncture.”
The first thing they did was switch out their lawyers. On Sunday, the Justice Department announced that the current legal team that had handled the various suits on the matter for the past year would withdraw — and be replaced, curiously, by DOJ attorneys who focus on consumer protection (even though that doesn’t have anything to do with this case).
What was going on here? A few possibilities seem likely. The current attorneys could have deeply disagreed with the new legal strategy ordered by their Justice Department bosses. Or they could have been tasked with contradicting various representations they’d made in court over the past year. (Most notably, DOJ kept telling the courts that June 30 — 11 days ago — was a hard deadline for resolving this matter, because census printing absolutely had to start by then.)
Whatever the answer is, Judge Jesse Furman, the federal district judge overseeing the New York suit, wants to know it. On Tuesday, Furman denied the previous legal team’s effort to withdraw, citing a local rule that they need to provide “satisfactory reasons” for doing so.
Judge George Hazel, who is overseeing the Maryland lawsuit over the question, also asked for more information on the move. And though he said he was “inclined to ultimately permit the withdrawal,” he warned: “Defendants must realize that a change in counsel does not create a clean slate for a party to proceed as if prior representations made to the Court were not in fact made.”
Neither judge, we should note, blocked the new attorneys from being added. So the lawyer switch, while suggestive of the behind-the-scenes turmoil happening here, seemed to be a more minor issue compared to the bigger legal challenges ahead.
A judge was also looking at whether the question was added because of “discriminatory animus”
Before the Supreme Court ruling on the citizenship question, three separate federal district judges had ruled that Ross’s move to add the question violated the law in various procedural ways.
No judge, however, has yet sided with plaintiffs’ arguments that Ross’s move violated the constitution’s equal protection guarantee, or that was a conspiracy to violate the civil rights of Latinos. (These arguments were made in the New York and Maryland suits.)
To prove this, Maryland’s Judge Hazel wrote in April, plaintiffs would have to demonstrate that “invidious discriminatory purpose was a motivating factor” behind Ross’s move — and, he said, they didn’t have the evidence to do so. As a result, the Supreme Court didn’t have to rule on this topic at all.
But in May, the case took a surprising turn. New evidence surfaced that Thomas Hofeller, a Republican operative and redistricting expert who died last year, “played a crucial role in the Trump administration’s decision to add a citizenship question to the 2020 census,” as the New York Times reported. (The evidence was discovered by his daughter, on hard drives in his home.)
The evidence includes an unpublished study by Hofeller saying a census citizenship question would be needed to get data that could then “be advantageous to Republicans and Non-Hispanic Whites” in redistricting. Additionally, there’s a paragraph in his files that’s identical to the Commerce Department’s language in a draft of their letter about adding the question to the census.
“Plaintiffs’ new evidence potentially connects the dots between a discriminatory purpose — diluting Hispanics’ political power — and Secretary Ross’s decision,” Hazel wrote on June 24. “As more puzzle pieces are placed on the mat, a disturbing picture of the decisionmakers’ motives takes shape.”
As a result, Hazel said, he’d reopen discovery on the matter, and he’s scheduled an evidentiary hearing to assess it in early September. And, again, this “discriminatory animus” question is a topic that hasn’t even been reviewed by the Supreme Court yet, and therefore complicated the existing legal situation further.
(If the Trump administration does abandon the effort to add the question to the census, though, it’s unclear whether these proceedings will continue.)
The ultimate problem would have been satisfying John Roberts
Though action was set to continue among the federal district judges overseeing major lawsuits about the matter, the ultimate decider would in the end have been Chief Justice Roberts.
Four Supreme Court liberals wanted to block Ross’s addition of the question as “arbitrary and capricious,” but Roberts disagreed. Four conservatives wanted to say the way Ross went about adding the question was perfectly fine — but Roberts disagreed with that too.
The upshot of the chief’s decision was that there were procedural problems with the way Ross went about adding the question — that he didn’t offer a “genuine justification” for his action, but rather a phony one.
So in theory, this left open the possibility that the Trump administration could get a do-over, with a better process. But though this probably isn’t impossible, it’s easier said than done, especially at this late date. Last week, DOJ attorneys were unable to provide Judge Hazel any details about their next move.
There were also logistical constraints. Though the census doesn’t officially kick off until early 2020, forms have to printed months ahead of time, and that process has already begun (without the blocked question).
There was some reporting that Trump himself seemed inclined to try to cut this Gordian legal knot with some sort of bold executive order. But as Rick Hasen, a University of California Irvine law professor, has explained, it’s unclear how that would have helped solve the problem Roberts laid out (that the Commerce Department didn’t give a “genuine justification”). And it would have been sure to immediately end up back in the courts anyway.
So Thursday afternoon, both ABC News and the Wall Street Journal were reporting that Trump was going to back off and instead announce some sort of effort to collect citizenship data “through other means.” But, of course, nothing is final until we get an official announcement — so later this afternoon, we’ll find out whether he really has decided to throw in the towel.
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