The biggest legal news Tuesday wasn’t the confirmation hearing for William P. Barr as attorney general. Rather, it was a stinging rebuke to the president and a key adviser in their attempt to manipulate the census.
The court held: “While the Court is unable to determine — based on the existing record, at least — what Secretary Ross’s real reasons for adding the citizenship question were, it does find, by a preponderance of the evidence, that promoting enforcement of the [Voting Rights Act] was not his real reason for the decision. Instead, the Court finds that the VRA was a post hoc rationale for a decision that Secretary had already made for other reasons.” The court concluded that the census question was going to depress responses among the minorities. (“The evidence in the trial record overwhelmingly supports the conclusion that the addition of a citizenship question to the 2020 Census will cause a significant net differential decline in self-response rates among noncitizen households. . . . In sum, the trial evidence clearly shows, and certainly shows by a preponderance of the evidence, that the citizenship question will cause a significant differential decline in self-response rates among noncitizen households. Notably, even Defendants conceded at oral argument that there is ‘credible quantifiable evidence’ that ‘the citizenship question could be expected to cause a decline in self-response.’ ")
Regarding the seriousness of the attempt to game the census, the court said, “Plaintiffs have also proved that the net differential undercount of people who live in noncitizen households will translate into several further concrete harms. First, the Court finds by a preponderance of the evidence that the addition of a citizenship question will cause or is likely to cause several jurisdictions to lose seats in the next congressional apportionment and that it will cause another set of jurisdictions to lose political representation in the next round of intrastate redistricting.” In short, this is an effort to deprive people and the states in which they live of the representation and resources they are constitutionally entitled to.
One is struck not only by the outcome (a complete loss for the administration) but also by the direct rebuke to the honesty and integrity of top administration officials.
Voting and immigrants' rights groups cheered the outcome. “The ruling by Judge Jesse M. Furman is a step in the right direction to stopping xenophobic rhetoric and policy at all levels of government,” the NAACP said in a written statement. “The addition of a citizenship question to the 2020 Census only increases the likelihood of a substantial undercount of immigrant communities, particularly immigrants of color including those from the African Diaspora who are essential to determining U.S. elections, congressional seats and federal funding decisions for a decade. Any citizenship question compounds the already inadequate preparation for Census 2020 and further dilutes the votes of racial and ethnic minorities, and deprive their communities of critical federal funds and undervalue their voices and interests in the political arena.”
Likewise, the ACLU’s statement read, in part: “The evidence at trial, including from the government’s own witness, exposed how adding a citizenship question would wreck the once-in-a-decade count of the nation’s population. The inevitable result would have been — and the administration’s clear intent was — to strip federal resources and political representation from those needing it most.”
The House oversight committees should call Ross and others to testify under oath. Their conduct in this entire episode raises real questions about the Commerce Department’s truthfulness and duty to provide the most accurate and complete census possible.