Two events yesterday showed an unequal outlook on fairness by California’s Attorney General. In one instance, AG Xavier Becerra rightly objected to President Trump’s order attempting to limit the people counted in the census as ignoring the plain language of the United States Constitution. On the other hand, he issued titles and summaries for California ballot initiatives that are raising complaints that his political ideology is interfering with his official duties to write neutral ballot descriptions.

In issuing an order that the census should not count anyone in the country illegally, Trump is attempting to use the power and authority of his office to punish opponents. Many immigrants live in Democratic controlled states, especially California and New York. In putting out an unbalanced ballot label, summary and title on a ballot measure, Becerra is doing essentially the same thing–using the power of his office to put a thumb on the scale to help political allies. 

California by best estimate has about 2.5 million people in the country unlawfully, about 7% of the state’s population. If they are not counted in the census, the Golden State is sure to lose representation in Congress and access to federal dollars. The president reasoned in a statement that, “My Administration will not support giving congressional representation to aliens who enter or remain in the country unlawfully, because doing so would create perverse incentives and undermine our system of government.” He said that his position, “reflects a better understanding of the Constitution.”

However, the Constitution is quite clear under the Fourteenth Amendment that representation is to be determined by, “counting the whole number of persons in each State.”

The idea of limiting the number of people to be counted in the census for the purposes of representation in Congress came up post-Civil War when the Fourteenth Amendment was debated. An attempt to include only voters as a basis for representation was ultimately defeated because Congressional members at the time understood that voting requirements could be established that cut down the number of people counted for representation purposes, thus forcing a reduction in the number of representatives and the influence a state might wield in Congress. There were other reasons the amendment settled on the language to count all persons, including that women would not be counted because they were denied the vote.

In fact, at the time, California would have lost representation because the large Asian American population was disenfranchised. 

It is hard to imagine that under the lawsuits expected be filed against the president’s order that they won’t find success since the U.S. Supreme Court last year turned down Trump’s attempt to add a citizenship question to the census. 

Citizenship questions had been applied in past censuses, but that fact did not sway the court. Therefore, Attorney General Becerra is probably correct that in referring to Trump’s defeat at the hands of the justices on the citizenship question, “This latest attempt is even more flawed and transparent.” 

Becerra added at the end of his statement, “We’ll do what we must.” 

That clearly indicates he intends to sue, and he should be prepared to face lawsuits with his uneven handling of title and summaries that can sway the political balance in an election.

Already complaints have been raised dealing with the Proposition 15 property tax increase measure, Proposition 20 criminal reforms and Proposition 22 Uber-Lyft changes to labor law. 

There is a difference though in the federal and state situations that offers the Attorney General an advantage. Trump already lost a case before the Supreme Court on a census question. California’s Superior Court gives deference to the Attorney General on matters of ballot explanations. 

In addition, in this COVID-19 era, court battles are carried out over Zoom as any challenges to the ballot measures are proposed to do this time. One prominent Sacramento political lawyer told me that the Zoom conference is a disadvantage to those bringing the challenge. 

This is not the first time Becerra has been called out on his handling of ballot label, title and summary duties, especially on tax issues. This San Francisco Chronicle column by John Diaz notes a couple of instances and Dan Walters in CalMatters also wrote on the subject, as did others.   

Becerra seems to have trouble telling voters a tax is coming their way. His office did make one small change to the ballot label of Proposition 15. Previous titles said that the measure “Increases Funding for Public Schools….” 

Now the ballot label reads: “Increases Funding Sources for Public Schools….” What’s a funding source? Taxes! Then why isn’t that mentioned first in the title? That word has resonance. And the AG knows it.

The problem with fairness in this hot and hostile political environment is that long established procedures like the census and pure ministerial actions like writing even handed ballot summaries get soaked in politics.