The United States Supreme Court is expected to rule shortly in the case of Department of Commerce v. New York—a critical legal battle over the addition of a citizenship question to the 2020 U.S. census. The Trump administration and Republican Party have pushed hard on the idea of collecting citizenship information from U.S. residents, claiming the move is not intended to be harmful and that it simply represents a bid to return the census to an earlier status quo. In fact, proponents have gone as far as to claim that such information would help enforce protections for minority voters under the Voting Rights Act.
If Republicans have their way, the 2020 census will ask, “Is this person a citizen of the United States?” with four different “yes” options and a single option saying, “No, not a U.S. Citizen.” Sounds harmless enough—if there were a relationship of trust between undocumented immigrants and the U.S. government. Although there are laws prohibiting census responses from being shared with law enforcement or immigration authorities, critics have countered that asking about citizenship will lead to fear among undocumented people who may refuse to fill out the form and thus be unaccounted for in the results and underrepresented in Congress. If that was the Republicans’ intent all along, a smoking gun has now emerged confirming those fears.
Here’s the backstory: A longtime Republican operative named Thomas Hofeller, now deceased, was hired by a major GOP donor to study the impact of drawing congressional district lines based not on the number of residents, but on the number of voting-age citizens living in those districts. Every person living in the United States currently has the constitutional right to be represented in Congress, whether or not they are eligible to vote. Hofeller’s 2015 study, which focused on the state of Texas, concluded that districts based on voting-age citizens would be “advantageous to Republicans and non-Hispanic whites,” and that one way to achieve this change would be to include a citizenship question on the census.
What’s remarkable is that the push for the 2020 citizenship question traces its roots to a high-level Republican operative who carried great influence within the GOP. The New York Times described Hofeller as the “Michelangelo of gerrymandering, the architect of partisan political maps that cemented the party’s dominance across the country.”
The lawsuit challenging the addition of the citizenship question is only days away from being ruled on by the U.S. Supreme Court. As soon as the new evidence came to light, the ACLU moved quickly to file a document asking the court to consider it. But with oral arguments being submitted in April, it is likely justices already have written their opinions, and the Justice Department—which under the leadership of Attorney General William Barr has become more politicized and partisan than ever—has vehemently opposed the introduction of the Hofeller evidence. In a document filing, the DOJ wrote, “The motion borders on frivolous, and appears to be an attempt to reopen the evidence in this already-closed case and to drag this Court into Plaintiffs’ eleventh-hour campaign to improperly derail the Supreme Court’s resolution of the government’s appeal.”
While it seems only fair that Hofeller’s damning words about the GOP’s intentions should figure into their decision-making, it may be too late given that the conservatives on the court appear inclined to side with the Trump administration. And there too, Republicans have ensured they have the upper hand, having essentially stacked the courts with right-wing partisan justices like Neil Gorsuch and Brett Kavanaugh after the GOP-led Senate denied President Obama the chance to fill an open positions for months before the 2016 election.
Meanwhile, civil rights groups representing Latino and Asian communities also appealed to a federal judge to rethink his lower court ruling in light of the new evidence. U.S. District Judge George Hazel had earlier ruled against adding the citizenship question to the census but also maintained that, “Plaintiffs failed to show that the addition of the citizenship question was motivated by invidious racial discrimination.” Thomas Saenz, president and general counsel of the Mexican American Legal Defense Fund, which is one of the groups that is appealing, said, “Because the evidence strongly demonstrates an unlawful and discriminatory motive, the question must be removed, regardless of what the Supreme Court may conclude as to the separate claims before it.”
Whether or not judges accept the evidence, the racism of the citizenship question should at least be apparent to the American public—if only mainstream media outlets covered the story with the gravity it deserves. But many outlets did not dare to mention the white supremacist aspect of the Hofeller documents in their headlines. For example, NPR’s story was headlined, “GOP Redistricting Strategist Played Role In Push For Census Citizenship Question,” while The New York Times wrote, “Deceased G.O.P. Strategist’s Hard Drives Reveal New Details on the Census Citizenship Question.” These vague pronouncements obscure the racist notions that drive the present-day Republican Party, an institution that birthed the Trump presidency in all its racist glory and continues to enable it.
Vicuña explained that “there’s a reluctance to call something racism or systemic bigotry without that smoking gun of a racial epithet or some sort of insult.” He stressed the importance of viewing issues such as this one through the lens of systems rather than individuals. After all, Hofeller may have been the individual originator of an insidious idea, but it has taken the effort of many others—including Commerce Secretary Wilbur Ross, Attorney General Barr and of course President Trump—to attempt to make the citizenship question on the census a reality. Their collective actions will have a major impact on whole communities around the nation.
Unless the Supreme Court does the right thing and rules against it, the only opposition that the GOP’s white supremacist project now faces is from some congressional Democrats.
Unless the Supreme Court does the right thing and rules against it, the only opposition that the GOP’s white supremacist project now faces is from some congressional Democrats. House Judiciary Committee Chairman Elijah Cummings in April demanded documents from the Trump administration related to its decision-making on the citizenship issue. Typically, the Trump officials have stonewalled the request and now Ross and Barr face a vote of contempt of Congress by Thursday. In a strongly worded letter to them, Cummings said, “Unfortunately, your actions are part of a pattern. The Trump administration has been engaged in one of the most unprecedented cover-ups since Watergate, extending from the White House to multiple federal agencies and departments of the government and across numerous investigations.” He pulled no punches in referring to the newly unearthed Hofeller documents showing the Trump administration’s intention “to gerrymander congressional districts in overtly racist, partisan and unconstitutional ways.” But we are finding out that in Trump’s America, even congressional authority is severely limited.
A new study by the Urban Institute on the U.S. census estimates there would be “a total population net undercount of 1.22%” as a result of the citizenship question. That amounts to nearly 4 million people who are disproportionately Latino, or immigrant, or related to immigrants who will likely be undercounted in the 2020 census. In fact, the Urban Institute fears that the damage is already done, saying in its study, “Even if the citizenship question is not included on the 2020 census, we know from U.S. Census Bureau researchers that there is an increased climate of fear and hesitation to participate among Hispanic/Latinx and immigrant residents, which makes this estimate plausible either way.”
And perhaps that was Trump and the GOP’s goal all along—to foment so much fear in immigrant communities and communities of color that even the mere possibility of a question about citizenship status was enough. Actually, winning the inclusion of the question would be icing on their racist cake.