The Supreme Court was confronted with a difficult question in the past year. The Trump administration wanted to put a citizenship question on the 2020 Census, and its stated reason was to enforce the Voting Rights Act. But opponents argued this was, in fact, a thinly veiled partisan gambit to draw more GOP-friendly districts.
The court issued a remarkable rebuke of the Trump administration’s stated reason. And now, the Trump administration is pretty much acknowledging its motivation was precisely what its critics claimed.
President Trump on Tuesday signed a memorandum stating that undocumented immigrants should not be included as part of the next process of apportionment — i.e., the doling out of congressional districts that follows every census. Such a move would reduce the representation of states (many of them blue) with higher undocumented populations.
Apportionment has never been handled like this, and there are major questions about both the legality and practicality of the memorandum.
The Constitution states that congressional districts must be drawn according to “the whole number of persons.” And federal courts have long ruled that congressional districts must be drawn according to total population. But there has been some ambiguity in how the Supreme Court has decided this question. And Justice Samuel A. Alito Jr. has indicated that perhaps states might be allowed to draw their legislative districts according to citizen voting-age population. At the least, the Trump administration is putting all of that to the test.
Beyond that, it’s not clear how this will be executed. Given that the Supreme Court struck down the citizenship question, how is the federal government to even determine which people are citizens? Even if the idea passes constitutional and legal muster, actually doing what the memorandum says is another matter entirely.
But those two very important questions aside, there’s the matter of what this says about the Trump administration’s true intent. The Supreme Court ruled in the past year that the Trump administration’s stated reason — the Voting Rights Act — “seems to have been contrived” and that officials such as Commerce Secretary Wilbur Ross seemed to invent a justification for something they planned to do very early in the Trump presidency.
Chief Justice John G. Roberts Jr. strongly rebuked Ross and the administration, saying, “What was provided here [as a justification] was more of a distraction.”
Absent from the Trump administration’s legal defense was any indication that this was part of an effort geared toward apportionment or redistricting — the latter being the decennial drawing of new districts to reflect population shifts.
But it was part of the opposition’s case. Critics in the past year pointed to a previously unpublished 2015 presentation from the late GOP redistricting expert Tom Hofeller, which stated that using citizenship data in a state such as Texas “would be advantageous to Republicans and non-Hispanic whites” by diluting the influence of Democratic-leaning Hispanics. The critics argued that the Justice Department’s case for a census citizenship question closely mirrored Hofeller’s 2015 study, reinforcing the political motivations of the move.
And Trump himself seemed to affirm that aim. As the case was progressing, the president blurted out that, “Number one, you need it for Congress — you need it for Congress for districting.”
This ran afoul of the Supreme Court defense offered by the Trump administration, led by then-Solicitor General Noel Francisco. Francisco said at the time that Ross “did not rely on that rationale in his decisional memorandum.” Francisco added: “Instead, he relied on DOJ’s explanation … that citizenship data from the [American Community Survey] has substantial limitations.”
In other words, the defense was that we needed the citizenship question because the more-frequent but less-robust American Community Survey couldn’t provide totally accurate citizenship data — not because of a need for apportionment or redistricting data.
Both before and since then, the administration hasn’t done much of anything to reinforce its claimed desire to enforce or bolster the Voting Rights Act. But it has now confirmed that it would very much like to use citizenship data to award congressional districts — just as its critics claimed (and it denied) was its true aim.
Trump’s move Tuesday suggests his comments were more than just a coincidence — and that his administration’s disavowals of this alleged goal were dishonest, at best.