The Trump administration’s plan to make Congress whiter

If you can't win, rig the game.

CREDIT: Taylor Hill/WireImage
CREDIT: Taylor Hill/WireImage

The Trump administration is pushing a subtle change to a government form which could have profound implications for future elections and potentially violate the Constitution.

Last month, the Justice Department wrote a letter to the Census Bureau requesting to add a question to the census form asking if individuals are citizens. The letter, which was first reported by ProPublica, alarmed many experts — including former high-ranking census officials — because including such a question is likely to discourage non-citizens, and undocumented immigrants in particular, from participating in the census.

Census data is used both to allocate congressional representation to states and to guide redistricting under the One Person/One Vote doctrine, which requires districts to be roughly equal in population.

As the Washington Post notes, “a majority of the nation’s undocumented immigrants live in just 20 metropolitan areas.” So a change to the census form that discourages these immigrants from filling it out will likely shift political power away from urban centers (where voters tend to prefer Democrats) and toward more rural areas (where voters tend to prefer Republicans.

It is also difficult to square with the Constitution.

Specifically, the Fourteenth Amendment provides that “representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.” So if the Census Bureau adopts a question known to discourage certain populations from filling out their census forms, that will prevent representatives from being allocated based on the “whole number of persons in each state” because the number of people in states with larger undocumented immigrant populations will be systematically undercounted.

If the Census Bureau does include the citizenship question on 202 census forms, however, it is unclear whether the courts would correct this problem.

The Supreme Court held in Washington v. Davis that plaintiffs alleging race discrimination must show that a law was enacted with discriminatory purpose — and not simply that it has a discriminatory effect — in order for the law to be struck down under Constitution’s protections against discrimination. The Court is now much more conservative than it was in 1976, when Davis was decided, so there is a very real chance that the current Court would impose a similar standard on a suit challenging the census question.

That would place a heavy burden on anyone challenging the question, as they would have to show that it was added to the census for the very purpose of preventing an accurate count. The Justice Department, for what it is worth, claims that it wants the question added to ensure that districts drawn to allow racial minorities to elect a candidate of their choice actually have sufficient numbers of minorities who are eligible to vote.

But as the Post suggests, there is a third possible explanation for why the Justice Department wants this question on census forms.

In 2016, the Supreme Court considered Evanwel v. Abbott, a suit spearheaded by a leading white rights activist, which sought to change the way legislative districts are drawn. Currently, districts are drawn to have roughly equal total population — so a district with a large number of children, immigrants, or other disenfranchised persons will have fewer voters than one with an older population made up primarily of voting citizens. The plaintiffs in Evanwel claimed that districts must be drawn to have roughly equal numbers of “voter-eligible” individuals. The Supreme Court unanimously rejected this argument, though the Court’s two most conservative members disagreed as to why.

Had the Court embraced the Evanwel plaintiffs’ theory, power would have shifted away from districts with large numbers of immigrants — which tend to also be communities of color — and toward white communities.

While Evanwel held that states are not required under the Constitution to exclude non-voters when drawing district lines, it left open the question of whether a state is permitted to do so. If the census gathers data on who is and who is not a citizen, that could aid states that want to experiment with methods of drawing districts that exclude non-citizens.

And that would, in turn, lead to a whiter Congress.