Why is it that the Trump Administration is so adverse to telling the truth? In their handling of a fairly simple decision to add a citizenship question to the 2020 US Census they have lied to a federal court, stonewalled Congress, and may well sully the carefully crafted image of the US Supreme Court as above politics.
Asking about the citizenship of US residents was on every federal census from 1880 to 1950, during the great age of immigration. It was dropped in 1950 because immigration had slowed and there were few non-citizens.
But from 1970 through today it has been asked on a census sample, currently called the American Community Survey, that goes to 30 million households during the decade. This has never been controversial nor has there been any evidence of massive numbers of non-citizens refusing to answer the question. In fact, it is necessary in the redistricting process because the US Supreme Court has said that majority-minority districts must be drawn where there are high numbers of non-white citizen voters. This question has been used to determine citizenship without controversy.
So in justifying the citizenship question the Trump Administration could easily have said, this is a benign question and we should now ask it of all people since the nation once again has a large immigrant population. As in the era from 1880 to 1950, we would like to know how many there are.
But the Administration could not act honestly, and instead has another motive. Apparently hard line immigration hawks decided that if you asked citizenship of illegal aliens, they would not fill out their census forms, thus they would get less political representation and fewer public benefits. Actually the Administration could have justified that policy and argued that illegal aliens should not receive representation or public benefits; they well might not have prevailed in court but at least they would have been honest about their motives.
Instead they came up with a completely fraudulent argument, advanced by Commerce Secretary Wilbur Ross and the Department of Justice, that the citizenship question on all census forms was necessary to fulfill the mandate of the Voting Rights Act. This is nonsense because the ACS citizenship question has been adequate for decades to determine citizen voters for Voting Rights Act purposes. They told the courts that they had to correct a defect that manifestly does not exist, which is in part whey they uniformly lost in the lower courts.
In this process, Ross regularly lied about how the question came about. According to testimony in federal courts, Ross told several versions of how this question was developed. Conservative columnist George Will wrote of Ross’s behavior: “The U.S. district judge was scalding about the ‘egregious’ behavior of Ross, who ‘in a startling number of ways’ either ‘ignored, cherry-picked, or badly misconstrued’ evidence, and ‘acted irrationally . . . in light of that evidence.’ Yet the judge professed himself ‘unable to determine — based on the existing record, at least — what Secretary Ross’s real reasons for adding the citizenship question were.’”
But in the past month, while this case has been before the US Supreme Court, we have learned more about the genesis of the question, and this involves my old friend of nearly 50 years, the late Dr. Thomas Hofeller, the GOP’s “Machiavelli of gerrymandering.” Tom and I first worked together in 1971, helping the Assembly Republicans with redistricting. In 1981, we worked against the flagrant Democratic gerrymander of California. Tom learned all about gerrymandering from the Democrats and then applied those skills to help Republicans do the same thing. He was responsible for many of the GOP redistricting plans in effect around the country today.
In 2015, Hofeller was asked to explain what would happen if Texas were to redistrict based on citizen population alone. Hofeller correctly wrote that: “A switch to the use of citizen voting age population as the redistricting population base for redistricting would be advantageous to Republicans and non-Hispanic whites.” Hofeller also noted that determining this population would be impossible without a citizenship question on all census forms in 2020. His conclusions are absolutely true; but it is also true that districting by citizens has never been proposed and would clearly be unconstitutional.
But in 2017, as the Trump Administration pursued its citizenship question, they turned to Hofeller to come up a reason for it. He did so, inventing the Voting Rights Act rationale for the question. We know this is true because the Administration submitted to the courts in 2018 language that tracks word for word arguments Hofeller wrote in 2017. Were Hofeller alive today, he died in August 2018, and knowing him as I did, he would have responded, yes I came up with their rationale, but it was up to them to defend it.
Despite being caught red handed, the Administration insisted the Hofeller papers had nothing to do with their question; that they had never heard of it. But Congress has now subpoenaed Commerce to see the documents and the Administration is claiming executive privilege; obviously to hide the truth.
So now this is before the Supreme Court. In Will’s view, the central question is: “Does it matter that a conspicuously unenlightened member of the president’s cabinet lied in sworn testimony about why he made a decision that he arguably has the statutory power to make?” If the Court were to strictly apply the law, as it seemed inclined to do in it oral hearing, they would say that the Secretary of Commerce has the right to add or remove questions from the US Census.
But the Court is in a much worse quandary, given the Hofeller evidence that suggests people lied under oath. Their best move would be to punt, send the matter back to a lower court to sort it all out. That would mean no citizenship question on the 2020 census. But if they do what most people think they will do, uphold the question on executive power grounds, they are sure to be roundly denounced in the liberal media as Trump-Republican toadies, accusations of partisan motives that Chief Justice John Roberts has vigorously tried to avoid.
The fact is that this has become a huge tempest in a teapot, with high levels of hysteria on both sides. The liberal media conflated Hofeller’s 2015 study with his 2017 rationale to insist this is all about racist Republicans. “The Trump administration has devised a fundamentally racist policy: adding a question to the 2020 Census that will suppress participation by nonwhite people and, therefore, artificially increase white (and Republican) power in a new round of gerrymandering,” wrote left wing Washington Post reporter Dana Milbank.
So let’s look at what really happens if this question is added to the census.
- • First, no one has to answer it. In 2018, Ron Jarmin, the acting census director, told Congress a census form will still be counted even if the question is not answered, “but we would definitely encourage people to fill it out”. So people who are afraid to answer the question have an easy out, don’t answer it.
- • There will be a census undercount, there always is, but not because of this question. Jose Hernandez, a newly arrived illegal immigrant from Guatemala who does not speak, read or write English is hardly likely to be aware of the census citizenship question, but he does know to stay in the shadows, and he will not want to fill out the census or any other form.
- • The Democrats can turn this to their advantage. California Democrats mastered vote harvesting to win their big victories in 2018. In 2020, they can use that tactic to increase census compliance, going house to house and collecting census forms to make sure there is not an undercount in immigrant communities. California and Texas have the largest number of immigrants, but if form harvesting is only done in California, Democrats could come out the big winners.
- • Respondents will be able to lie about their citizenship with little practical consequence. Who’s going to know if Jose Hernandez gives Encinitas rather than Ensenada as his place of birth?
- • The citizenship question does not ask if you are here legally, rather where you were born and if you are naturalized. Eighty six percent of US residents were born here, and most immigrants are actually in America legally. The number of illegal aliens in the US is estimated at 10.7 million in 2016, or about three percent of the population. In the end this question is likely to have very minor impact on census returns.
- • Finally, having this question on the American Community Survey over almost half a century seems to have had no impact on the validity of that survey