Supreme Court should postpone decision on Trump’s citizenship census question

“A man usually has two reasons for what he does,” J. P. Morgan once said. “A good one and the real one.”

And so it has been for the Commerce Department’s justification of adding a citizenship question to the 2020 United States Census. The good reason is that the responses will help the Justice Department enforce Voting Rights Act protections against discrimination of racial and ethnic minorities. The real reason is a plan to undercount undocumented immigrants, manipulate redistricting, and rig legislative elections for partisan advantage.

Bolstered by documents released last week, the evidence of malign intent is so compelling that the Supreme Court of the United States should not issue a decision on the citizenship question this month — and should reconsider the case.

Filed by the plaintiffs in Department of Commerce v. State of New York, the documents, which were obtained by Common Cause North Carolina through discovery for its gerrymandering lawsuit, Common Cause v. Lewis, which goes to trial in July, reveal the role played by the late Thomas Hofeller, a Republican redistricting expert, in orchestrating the addition of a citizenship question and a rationale for it. In a 2015 study of “political and demographic effects” of the census, commissioned by the “principal” of the Washington Free Beacon, a conservative website, Hofeller concluded that adding the citizenship question would deter many Latinos from filling out the forms and “be advantageous to Republicans and non-Hispanic Whites” in redistricting.

In August 2017, Hofeller helped ghostwrite a letter for the Department of Justice to send to Commerce requesting the citizenship question and citing Voting Rights Act enforcement as justification for it. The letter sent by DOJ in December is strikingly similar in content, language and structure to Hofeller’s work.

In testimony before Congress on March 20, 2018, Commerce Secretary Wilbur Ross denied discussing the citizenship question with anyone at the White House, claiming the request came from the Department of Justice.

It is now clear that he was not telling the truth. On March 10, 2017, the chief financial officer and assistant secretary for administration emailed Ross about “your question on the Census,” and attached a Wall Street Journal article entitled “The Pitfalls of Counting Illegal Immigrants.” On April 5, Ross’s assistant asked Mrs. Ross about plans for the evening because Steve Bannon — then White House chief strategist — had “asked that the Secretary talk to someone about the Census.” (The “someone” was Kansas Secretary of State Kris Kobach, who told Ross’s chief of staff on July 21 that Bannon had provided “the text of the question to be added.”) On May 2, Ross told his staff he was “mystified why nothing have [sic] been done in response to my months old request that we include a citizenship question.” Earl Comstock, director of Commerce’s office of policy and strategic planning, reassured him:  “We need to work with Justice to get them to request that citizenship be added back as a census question, and we have the court cases to illustrate that DOJ has legitimate need for the question to be included. I will arrange a meeting with DOJ staff this week.”

But Ross told Congress: “We are responding solely to the Department of Justice’s request.”

Nearly seven months later — in October 2018 — Ross indicated that he now recalled speaking with Steve Bannon and Kris Kobach about the citizenship question.

During oral arguments before the Supreme Court, several justices asserted, appropriately, that government officials should be granted considerable “discretion” in implementing laws. Discretion, however, is not the same as a blank check. The Constitution, it is important to note, mandates a count of all U.S. residents, not all citizens. And, according to a study commissioned by the Census Bureau in 2018, the citizenship question may constitute “a major barrier” to full participation in the census: 47 percent of survey participants incorrectly answered a question about whether the census is used to identify individuals living without documentation. Many Latinos, researchers indicated, “worried that their participation could harm them personally or others in their communities/households they cared about.” John Abowd, the Census Bureau’s chief scientist, has warned that the citizenship question “harms the quality of the census count.”

A decision based on malign intent, conceived and implemented in secret, that subverts a constitutional mandate is neither good for the Supreme Court nor the country.

Three federal judges, it is worth noting, have ruled against the Trump Administration. In Maryland Judge George Hazel deemed the rationale for a citizenship question “woefully deficient”; in California, Judge Richard Seeborg decried “a cynical search”; and in New York, Judge Jesse Furman discounted “the acts and statements of officials with something to hide.”

SCOTUS should hit the pause button and review all the evidence.

Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University. He is the co-author (with Stuart Blumin) of Rude Republic:  Americans and Their Politics in the Nineteenth Century.