High Court Set to Rule on Citizenship Question

Dean Alberto Gonzales, left, chats with Chief Justice John Roberts at Belmont Law School February 6. Roberts’ vote could decide the citizenship question on the 2020 Census.

By Peter White

NASHVILLE, TN — Immigration reform and civil rights groups are still hoping to block a citizenship question on the 2020 Census but time is running out. The 5-4 conservative majority on the Supreme Court could decide to allow the question any day now. The high court will recess July 1 but that may not be the end of it.

The Trump Administration claims adding the question will help enforce the Voting Rights Act of 1965 (VRA) but three judges ruled that was simply a pretext. Doubling down, the President exerted executive privilege last week to keep newly discovered documents out of the hands of the House Oversight and Reform Committee that is trying to shed light on the controversy.

The ACLU filed a petition last week asking the high court to delay its decision and send the case back to a lower court so newly admitted documents in a Maryland case could be considered.

“The new evidence … indicates that Commerce understood that adding a citizenship question would enable redistricting methods harmful to voters of color, and that Commerce knew that the VRA rationale was a pretext for that real motivation: i.e., that the purpose of adding a citizenship question was not to protect minority voting rights, but to dilute them. It is difficult to conceive of a more significant violation of the public trust,“ the plaintiffs wrote.

A 2015 analysis by a Republican gerrymandering expert, Dr. Thomas Hofeller, argued that Republicans could continue to dominate both houses by creating voting districts based on the number of legal age voters in every district, not the total population. The U.S. Constitution calls for a count of all persons every ten years precisely to avoid having the census become a political football as the Trump administration would like. 

Hofeller died last summer leaving behind an estranged daughter and a poisonous trail of partisan duplicity. Stephanie Hofeller found thousands of files on back-up drives of Hofeller’s Toshiba laptop computer that spelled out a rationale and strategy to include the citizenship question on the 2020 census. She sent those documents to Common Cause, a plaintiff in a Maryland census case.

During a House Committee on Oversight and Reform hearing in March 2019, Secretary of Commerce Wilbur Ross told Representative Alexandria Ocasio-Cortez (D-N.Y.), that he added the question only after Department of Justice (DOJ) asked him in December 2017.

But Ross had been discussing the question with Kansas Secretary of State Kris Kobach months before he testified. Kobach was Kansas Secretary of State and a big proponent of stricter voter ID laws and Ross was in contact with Hofeller as early as 2016. We now know Hofeller authored a key part of the DOJ letter requesting Ross to add the question. 

This suggests Ross was lying to Congress when he said he added the question only because DOJ requested it. It turns out he had the letter planted inside DOJ long before they sent it to him on their stationery. 

The ACLU and others have argued that including the citizenship question will undercount minority voters and overcount white voters leading to gerrymandered voting districts favoring Republicans; it will result in the misappropriation of federal funds; it will suppress voting rights because minority votes don’t count in majority districts where there is only one office winner.

It will also hurt businesses which rely on accurate census data to find and supply customers.

The government claims that it needs to add the citizenship question to protect voting rights and that sounds like a good thing but it’s a red herring. The Trump administration has cast the opposition as disloyal Americans trying to sneak non-citizens into the voting booth. 

That plays well to Trump’s base and it has a sordid history. The Justice Department has made prosecuting voter fraud a top priority since 2002 but there have been more cases of shooting migratory birds than voter fraud. 

The DOJ began to pursue voter fraud cases during the George W. Bush administration. When seven U.S. attorneys refused to prosecute fraud cases without any real evidence, they were fired. 

The brazen attempt to politicize the federal courts eventually backfired. Many DOJ officials were forced to resign including then Attorney General Alberto Gonzales.  He is now dean of the Belmont law school. (see Roberts Tells Belmont Audience High Court Isn’t Political. Say What? Tennessee Tribune February 8, 2019) Now Donald Trump is resurrecting a failed policy to bolster his ant-immigrant agenda by insisting what he says is true even if it isn’t.

The President tweeted on November 27, 2016: “serious voter fraud in Virginia, New Hampshire and California” and he said millions of people voted illegally.  At the time, election officials, politicians from both major parties, and others criticized Trump’s baseless claims. 

“Let’s begin with the underlying fact: There is no epidemic of voter fraud,” wrote Michael Waldman, President of the Brennan Center for Justice, in a New York Times Op-ed in January, 2017.

African Americans, especially in the South, are well aware of all the voter suppression tools like purging voting rolls, erecting barriers to voter registration, and discouraging people from voting in other ways. Blacks know what it is like not to be counted.

The Trump administration is not really trying to remove those barriers. It wants to scare non-citizens from participating in the census for similar reasons though. If people aren’t counted, they will lose out on $800 billion a year in federal spending and when it comes to political representation based on population, they are invisible. If they don’t fill out the census form, they will cease to exist politically speaking.

“Undercounted minority communities are typically in urban areas, located in states like New York and California, and that results in less congressional representation in those states,” said John Yang, president and executive director, Asian Americans Advancing Justice (AAJC).

Yang said that when there is an undercount, the districts that are drawn will compact the number of minorities and immigrants into smaller districts. 

“Even though we all know there are actually more residents in those districts and therefore should have a large district or be split into two districts, now because of that undercount there are ways for lawmakers to draw the lines in such a way that they are packed into one place thereby expanding representation for other districts. 

That was Thomas Hofeller’s big idea. He proposed adding the citizenship question to the 2020 Census to increase the political power of non-Hispanic whites and Republicans in redrawn voter districts which happens after every census.

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