The Supreme Court Deals Trump a Defeat on the Census Citizenship Question

The high court's decision didn't take issue with the question itself, but rather the administration's tactics.
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Demonstrators rally at the U.S. Supreme Court in Washington, D.C., on April 23rd, 2019, to protest the proposal to add a citizenship question to the 2020 Census.

Demonstrators rally at the U.S. Supreme Court in Washington, D.C., on April 23rd, 2019, to protest the proposal to add a citizenship question to the 2020 Census.

The Supreme Court handed the Trump administration a defeat on Thursday when it decided to block, at least temporarily, the addition of the controversial "citizen question" on the 2020 Census. A bevy of experts and advocates have warned that adding the question—Is this person a citizen of the United States?—could lead to a dramatic undercounting of immigrant populations, particularly Latinxs. But the court's decision had less to do with the question itself, and more to do with the administration's justification for adding it.

In the majority opinion, Chief Justice John Roberts indicated that he could be swayed to support the addition of a citizenship question. The problem came with the reason the question was added: The Trump administration's claim for why it added the question "appears to have been contrived," Roberts writes, siding with the court's four liberal justices, in a decision that sends the question back to the lower courts. Roberts' tie-breaking move surprised some court observers, who expected him to join the four other conservatives on the bench in voting to allow the question.

Why does the administration's reason for adding the question matter enough for the Supreme Court to block its addition, even if some of the justices are OK with the question itself? The answer to that question involves a hard drive, a dead Republican operative, and the Voting Rights Act of 1965.

When advocates first challenged the addition of the citizenship question, courts began subpoenaing documents in an effort to understand the Trump administration's justification for adding it. Trump officials had claimed that the question was necessary to help the government enforce the Voting Rights Act, but multiple courts found that the officials in charge of the census wanted to add the question regardless, and then pressured the Department of Justice to find a justification for it.

What, then, was the real reason for adding the question? A hard drive that belonged to Thomas B. Hofeller—the "Michelangelo of gerrymandering"—revealed some possible clues. When Hofeller died last summer, his daughter shared his hard drive with an advocacy group, which discovered the role he had played in the Trump administration's decision to add the question. As I wrote in May:

The story begins with a study Hofeller completed to see how political maps would change if they were based not on an area's current population, but rather on a count of U.S. citizens of voting age. In the study, Hofeller wrote that such a change "would be advantageous to Republicans and non-Hispanic whites," and would diminish Democrats' voting power. The problem with implementing such a plan, however, was that few counts existed of U.S. citizens of voting age—most population measures, like the census, don't explicitly measure that sub-section of the population. "Without a question on citizenship being included on the 2020 Decennial Census questionnaire," Hofeller's study concluded, "the use of citizen voting age population is functionally unworkable."

According to court testimony from the Trump transition official in charge of the census, Hofeller approached members of the Trump team as they prepared to take office and encouraged them to add the citizenship question to the 2020 Census. Hofeller appears to have continued to play a key role in 2017 as the Trump administration came into power: The New York Times reports that Hofeller's "digital fingerprints" appear on some of the key documents the Department of Justice and the Census Bureau created to justify the citizenship question. In one instance, a paragraph in a Department of Justice memo—arguing that the question was necessary to enforce the Voting Rights Act of 1965—appears to be written word-for-word by Hofeller.

The murky—and perhaps gerrymandering-motivated—origin of the citizenship question is what convinced Roberts to send the question back to a lower court. According to Roberts' opinion, "[The administration officials need to] offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public." Until the administration can provide a clear justification, Roberts determined that the question cannot go forward.

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