Trump’s Citizenship Question in 2020 Census Likely to be Permitted by Supreme Court

Interview with Kristen Clarke, president and executive director of the National Lawyers’ Committee for Civil Rights Under Law, conducted by Scott Harris

Since 2017, the Trump administration has been pushing to include a question on citizenship in the 2020 Census. But groups that launched lawsuits opposing the move, assert that inclusion of the question would discourage many undocumented immigrants and their families from participating in the 2020 Census, which would result in a population undercount nationwide, estimated to total between 4 million and 6 million. Areas with large immigrant communities would bear the brunt of the predicted undercount.
The census, mandated by the U.S. Constitution calls for an accurate count of the entire population every 10 years, without regard to citizenship status. Critically, the census numbers are used to determine both the allocation of seats in the House of Representatives and the distribution of $883 billion in federal funding received by cities and states. 
The idea to include the citizenship question was first introduced by former White House strategist Steve Bannon who suggested that Commerce Secretary Wilbur Ross discuss the issue with then-Kansas Secretary of State Kris Kobach, a national advocate of measures to suppress the vote of minority communities. After three federal judges blocked the citizenship question from being part of the 2020 Census, the case was appealed to the U.S. Supreme Court which heard arguments on April 23.  Between The Lines’ Scott Harris spoke with Kristen Clarke, president and executive director of the National Lawyers’ Committee for Civil Rights Under Law. Here, she talks about what’s at stake in the high court’s ruling on the census question and assesses the consequences for political representation and state and local budgets.

KRISTEN CLARKE: A citizenship question has not appeared on census since the Jim Crow era. So in more than six decades, the government hasn’t done this and they haven’t done it because the government realized that we need a short form census to really encourage maximum participation by the public. So the census is very short. The form that goes out to every household is very short and it’s really designed to get on capturing that accurate count.

At the 11th hour, this administration moved to add the citizenship question (to the 2020 Census). And we know that this is all about discouraging participation amongst certain communities and in particular among communities of color, among immigrant communities, among households that have a mix of citizens and non-citizens living within them. We know that all of this comes at a time when this administration really has demonstrated hostility towards immigrant groups.

So, this was quite remarkable because the Census Bureau’s own scientists said, “Don’t do this. The evidence and data makes clear that this will depress participation and yield a far less accurate census than we would get otherwise.” The administration on the other hand said, “No, no, we’re doing this because we want to give the Justice Department the data and information that they need to enforce the Voting Rights Act.”

We know that that justification is false and borderline laughable given that this administration has not filed a single Voting Rights Act case. But moreover, since the Voting Rights Act has been passed, we’ve been able to bring cases successfully without citizenship data captured by the census. So the justification for why the administration is doing this is false. What we’re hoping is that the Supreme Court will pull the veil and look behind this effort and see it for what it is. This is an 11th hour attempt to hijack the census and discourage people of color from raising their hand and being counted.

BETWEEN THE LINES: You were present in the Supreme Court while the hearings over the citizenship question were conducted. Tell us about your impressions of the breakdown of justices and where you think they stand. I know we won’t know for sure until there is a ruling on this case, but there are other observers who found that the conservative majority on the court looked through their questioning as if they were very sympathetic to allowing the inclusion of the citizenship question in the census next year.

KRISTEN CLARKE: One thing that I was quite struck by was Justice (Brett) Kavanaugh, followed by Justice (Neil) Gorsuch, who looked at what some other countries do. They looked at and pointed to the practices of Spain and Germany and other places that may indeed consider citizenship in their census. But one of the loyalists, Solicitor General Barbara Underwood of New York very aptly pointed out that she does not know what those constitutions require. She does not know if they contain an enumeration clause like ours that requires a complete and accurate count. And she also doesn’t know the facts in those countries and whether or not the citizenship question produces an undercount in the way that we know it would here.

I wonder if this means that we’ll see Justices Kavanaugh and Gorsuch who care about international and human rights standards and will be looking for guidance from other countries on how they approach issues like this. I suspect that that’s not the case and to me seem to show the justices really stretching and willing to go far beyond the evidence before the court in this case to arrive at the outcome that they want, which may likely be one in which they’re inclined to defer to Wilbur Ross’ action here and leave the citizenship question in place.

For the court to ignore all of the evidence before it and arrive at an outcome where they leave that question in place I think could leave many people feeling that the Supreme Court has become a body that is just about helping carry out and execute the Trump agenda. And we don’t want that. We want a judicial branch that can be fair and independent in looking at the facts that come before it in each and every case. And issue rulings that comply and show faith with the Constitution and the laws that come before it. And that can garner the confidence of the public.

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