THE SUPREME COURT will hear arguments Tuesday about who counts, quite literally, in the eyes of the federal government. How many representatives the various states get in Congress for the decade beginning in 2020, along with how much money those states get from Congress, could be affected. At stake is not just the fate of the census, the constitutionally mandated every-10-years count of the U.S. population, but also whether the Trump administration will get away with one of its more glaring con jobs.
Commerce Secretary Wilbur Ross wants the decennial census forms to ask people about their citizenship status. Under certain circumstances, such a question is within the government’s right to ask; it was on census forms through 1950. In this case, however, the addition was not managed properly, nor honestly — nor, according to lower-court judges, legally. The evidence suggests that the question was included for nefarious purposes. If the high court does not intervene, it will lead to a less accurate count than would otherwise be possible.
The Trump administration contends that the Justice Department wanted the question included in order to gather data on the voting-eligible population. Mr. Ross ostensibly decided that the only way to gather the information the Justice Department wanted was to ask for it on decennial census forms. This flies in the face of common sense, testimony in trial court and analysis from the Census Bureau’s own experts. The Justice Department would get more accurate data if Commerce simply tasked statisticians with examining administrative records, rather than poisoning the census with a new question.
In fact, adding the citizenship question — and doing so without the usual field testing that accompanies any change in the census form — will scare immigrants away and result in a serious undercount. It would produce “at least 9.5 million wrong responses on citizenship status; the loss of information about additional millions of noncitizens and Hispanics due to the undercount; and an inability to link an additional one million individuals to administrative records,” according to New York’s lawyers, citing the Census Bureau’s own analyses.
Because no rational decision-maker would have made the call he did, the court should conclude that Mr. Ross either acted irrationally, which would violate the Administrative Procedure Act and other statutes, or in bad faith, which would violate the same laws. The evidence suggests strongly that Mr. Ross harbored ill intent. In a now-infamous March 2018 memorandum, Mr. Ross said he considered adding the citizenship question after the Justice Department asked for it. In fact, the secretary later admitted, he had started the process a year before the Justice Department made its request. And Mr. Ross was intimately involved in generating that request; as a lower-court judge found, Mr. Ross’s team “actively lobbied” various agencies to cook up a rationale for him to doctor the decennial census.
The Trump administration wants to tilt the census in favor of areas of the country that tend to vote for Republicans, at the expense of areas that tend to vote for Democrats. The justices cannot allow such obvious sabotage.