Let’s not beat around the bush.
The central question in Department of Commerce v. New York is whether the Trump administration can skew the 2020 census to shift Congressional representation away from Latino communities that tend to favor Democrats — and towards white communities that tend to favor Republicans.
To achieve this goal, the administration broke numerous laws. They ignored their own experts, and the views of a long line of experts from Democratic and Republican administrations. They lied about their true motives, then used extraordinary means to cover up those lies.
And, if Tuesday’s oral argument in New York is any indication, five members of the Supreme Court are likely to say that the administration may do all of this and get away with it.
Rigging the Census
New York concerns the Commerce Secretary Wilbur Ross’ decision to add a question to the 2020 census asking whether respondents are citizens. The census has not asked this question on its main form since the Jim Crow era, and for good reasoncens. As top census officials from the Reagan and Bush I administrations warn, asking such a question “could seriously jeopardize the accuracy of the census,” because “people who are undocumented immigrants may either avoid the census altogether or deliberately misreport themselves as legal residents,” while legal residents “may misunderstand or mistrust the census and fail or refuse to respond.”
The Census Bureau “calculated in January 2018 that adding a citizenship question to the 2020 census was likely to lead to a 5.1% differential decrease in self-response rates among noncitizen households.”
So that’s bad news if you want an accurate census. It’s great news, however, if your goal is to reduce the number of people counted in immigrant, primarily Hispanic, communities. Under the Constitution, seats in the House of Representatives are apportioned “among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.” So non-citizens count.
But only if they are counted.
Ignoring the law
Though there is a strong argument that the citizenship question violates the Constitution, many court-watchers came into Tuesday’s argument optimistic that the Roberts Court would strike the question down on different grounds — that the Trump administration repeatedly violated the law when it placed the question on the 2020 form.
As Judge Jesse Furman, who wrote an opinion striking down the census question, explained, the Census Act requires census takers to “‘acquire and use information’ derived from administrative records ‘instead of conducting direct inquiries’ to the ‘maximum extent possible.’” Yet the citizenship question would actually produce less accurate results than the use of administrative records alone, because so many non-citizens will falsely identify as citizens if the question is asked.
Indeed, according to Dale Ho, an ACLU attorney and one of three lawyers who argued against the question on Tuesday, as many as one-third of non-citizen responses to this question may be false.
Federal law also requires Secretary Ross to “report to the relevant congressional committees, at least three years before the ‘census date’ for a given census, all ‘subjects proposed to be included, and the types of information to be compiled,'” but Ross did not comply with this requirement.
And, on top of these legal violations, Ross also appears to have lied. Though Ross claims that the citizenship question is needed to gather data the Justice Department may use to enforce the Voting Rights Act, Judge Furman found that “Secretary Ross had made the decision to add the citizenship question well before DOJ requested its addition in December 2017.” Thus, “the evidence is clear that Secretary Ross’s rationale was pretextual.”
And yet, a majority of the Supreme Court appears unconcerned with Ross’ deception.
Coming into Tuesday’s argument, Ho and his fellow voting rights defenders were already in a hole. Last November, three members of the court — Justice Clarence Thomas, Justice Samuel Alito, and Neil Gorsuch — all tried to shut down Furman’s trial examining the legality of the citizenship question before Furman could reach a decision. That means that the lawyers challenging the question needed to hang onto all four liberal justices, while also picking up either Chief Justice John Roberts or Brett Kavanaugh to prevail.
Kavanaugh left little doubt, however, that he stands firmly in Donald Trump’s camp. At one point, for example, Kavanaugh pointed to a United Nations recommendation that nations ask about citizenship when they count their population, and pointed to other nations that follow this recommendation — although, as New York Solicitor General Barbara Underwood noted in response, the UN also says that census takers should be careful to test such questions to make sure they won’t discourage participation.
At another point, Kavanaugh suggested that his court’s review of Secretary Ross’ decision should be “deferential.” So the court’s newest member appears to have little interest in checking the man who gave him his current job.
That leaves the Chief, who, admittedly, asked less pointed questions than Kavanaugh.
Nevertheless, Roberts appeared unsympathetic to the challengers’ arguments — and he asked a handful of questions that suggest he will also back the Trump administration’s play. At one point, for example, Roberts asked whether the citizenship question would improve Voting Rights Act enforcement, and he did so in a tone which suggested that he thinks it will. (Ordinarily, Roberts is not known to be particularly sympathetic to arguments that the Voting Rights Act must be enforced).
At another point, Roberts noted that the census has long asked demographic questions — so why should the citizenship question be any different?
There are, of course, good responses to Roberts’ questions. The reason why the citizenship question is different is that it is likely to cause some U.S. residents to either give inaccurate responses or refuse to turn in their forms altogether — something that is not true about demographic questions asking about gender or dates of birth or similar questions.
Similarly, as Ho pointed out during his time at the podium, a citizenship question will make it harder to enforce the Voting Rights Act.
The reason why is that citizenship data is primarily useful when states engage in a particular kind of gerrymandering. That is, a state legislature might fill a district up with non-citizens of color, in order to create the false impression that they’ve drawn a majority-minority district, when in fact the citizen voting age population is predominantly white. Citizenship data could help the Justice Department sniff out maps that are drawn using this tactic.
But, as Ho argued, such citizenship data is useless if up to a third of non-citizens falsely claim to be citizens. Worse, such false responses “contaminate” the government’s existing data, making it harder to enforce the Voting Rights Act that it would be if the citizenship question was never asked.
The court’s decision in New York likely will not be handed down until June, so there is still time for Roberts to ponder Ho and Underwood’s answers and potentially decide that the citizenship question must go. But there was little indication at Tuesday’s argument that Roberts will do so. The smart money would bet on a 5-4 decision upholding the citizenship question.
Pack the Court
If the court goes there, that will have profound implications that reach far beyond this case. Roberts has a long record of hostility towards voting rights generally and the Voting Rights Act in particular — a hostility that stretches back to his days as a young lawyer in the Reagan Justice Department. Yet many supporters of free and fair democratic elections hoped that Roberts would moderate now that he holds the balance of power in the Supreme Court.
If Roberts is willing to back the Trump administration in a case like New York, where the administration behaved in a transparently lawless and deceptive manner — and where the underlying legal issue is that they failed to follow proper administrative procedure — then it is doubtful that he will be able to set aside his ideology in any major voting rights case.
Last winter, I warned that Democrats should be very cautious about court-packing — that is, adding additional seats to the Supreme Court in order to combat the underhanded tactics Republicans used to hold their majority on that court. Court-packing means destroying the legitimacy of the federal judiciary, and “this price is worth paying only if Democrats truly have no meaningful recourse to the ballot box.”
But if Roberts will let the Trump administration rig the U.S. Census — and, in doing so, shift power from Democrats to Republicans — then he will likely bless other anti-democratic tactics by Republican lawmakers. The future Roberts wants may soon be a world where the United States no longer has competitive elections. Ballots will still be cast, but Republicans will predetermine enough outcomes to ensure that they keep their majority.
If Roberts sides with the Trump administration in New York, in other words, the case for court-packing becomes much, much stronger.