Will Supreme Court Ruling End White House Drive to Include Citizenship Question in 2020 U.S. Census?

Interview with Thomas A. Saenz, president and general counsel, Mexican American Legal Defense and Educational Fund, conducted by Scott Harris

[Producer’s update: As of Wednesday, July 3, 6:30 p.m. ET, The New York Times is reporting that the Department of Justice has reversed its course on the 2020 Census citizenship question, per Donald Trump’s orders.]  

The Trump administration’s drive to include a question on citizenship in the 2020 U.S. Census came to an end after the U.S. Supreme Court issued a ruling on June 27, temporarily blocking inclusion of the question until the administration could present an honest explanation for its insertion. Previous explanations by Trump administration officials were contradicted by several pieces of evidence including documents from a now deceased GOP strategist who advocated the inclusion of the citizenship question because it “would clearly be a disadvantage to the Democrats” and “advantageous to Republicans and Non-Hispanic Whites.” Census data is used to determine both federal and state legislative district maps and the allocation of hundreds of billions of dollars in federal funds.

After the high court decision was handed down, Trump urged a delay in conducting the 2020 Census to give his administration more time to present a plausible explanation to the Justices. But on July 2, Trump’s Justice Department threw in the towel and announced that Census forms would now be published without the citizenship question.

Between The Lines’ Scott Harris spoke with Thomas A. Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, which was a plaintiff in a parallel lawsuit before a federal court in Maryland attempting to block inclusion of the citizenship question in next year’s Census. Here, Saenz discusses the outcome of the Census case and another important ruling on partisan gerrymandering.

THOMAS A. SAENZ: So there are a number of challenges to the citizenship question after Secretary of Commerce Wilbur Ross last year indicated that at the last minute, they would be adding a citizenship question to Census 2020. MALDEF has one of those cases in the District Court of Maryland, which is where the Census Bureau is located and our case, like the others, resulted in a district court judge concluding that the administration had acted unlawfully by adding the question as it did with, first of all, a false public reason for why it was adding the question. Second, real questions about whether adding the question would severely undermine the constitutional duty to enumerate all residents in the country. And finally, particularly in our case, its contention that racial discriminatory intent was behind the addition of the question.

Now of those cases, the New York case, which is not MALDEF’s case, but is the one that went to the Supreme Court where the Supreme Court last week, somewhat unexpectedly, a majority concluded that in fact the addition of the question violated the Administrative Procedures Act precisely because what Secretary Ross gave as the reason for adding the question was a falsehood. A lie. A pretext.

And they have given up. The court has given an opportunity for the administration and Secretary Ross particularly to come forward with a public justification that is truthful and legitimate. But in the meantime, the racial intent question was basically strengthened by some newly discovered evidence a few weeks ago. And so we are back in court in Maryland after a remand from the Fourth Circuit Court of Appeals with the possibility of getting a final decision that it was racially discriminatory. And if it was racially discriminatory in intent to add the question, that can’t be fixed and the citizenship question will be permanently off Census 2020.

BETWEEN THE LINES: Thomas, what about accountability for Commerce Secretary Wilbur Ross? It seems from all the evidence that he blatantly lied to Congress. What do you think is the correct course of action here in terms of accountability?

THOMAS A. SAENZ: Well, where does any other administration than the current one? I think that Wilbur Ross would have resigned in disgrace a long time ago as more and more evidence comes out that he blatantly lied to the Congress and the public about adding this question – in another administration that would disqualify him from serving. But in the clown car of the Cabinet that we currently have, he is still in place. But clearly his legitimacy has been completely undermined. If there’s anything that a commerce secretary should view as sacrosanct, it’s the U.S. census and conducting it in a professional manner and he has undermined that entirely in my view. And MALDEF has called for his resignation previously. He has no business continuing to serve in a Cabinet.

BETWEEN THE LINES: Thomas, I wanted to briefly talk about the other ruling from the Supreme Court, where the conservative majority ruled that federal courts can no longer hear challenges to states where a partisan gerrymandering of districts has been alleged. It’s always been the case where there’s a fine line between partisan and racial or ethnic gerrymandering. What is your overview of the impact of this case on our electoral system?

THOMAS A. SAENZ: Well, I think it was as the inevitable result of the conservative majority that we have currently, Justice Kennedy was the one justice that might have moved to a conclusion that partisan gerrymandering was justiciable something that federal courts could address. And when he was succeeded by Justice Kavanaugh, I think it’s quite clear that really determined the outcome of the partisan gerrymandering cases. I think what it will lead to is every state across the country considering whether to continue to leave in the hands of state legislatures, the redrawing of lines for Congress and, and for the state legislatures themselves. I think we still have to ensure that racial gerrymandering and violations of the Voting Rights Act to dilute the political power of racial minorities are addressed and addressed specifically in those states where too often an intent to diminish the power of a growing minority group like Latinos is masked behind some partisan motive.

But we do know from a Texas redistricting case last decade that MALDEF brought, the Supreme Court made clear, you can’t hide your racial intent behind some partisan motivation if in fact race and partisanship overlap so closely, you can’t ignore that in addressing voting rights issues. So I think that it is a challenge, but we have to make sure the existing laws – constitutional and statutory – defending the rights of racial minorities, I would say particularly those groups that are growing into significant political power are protected in this next redistricting round. Historically, legislatures have been very, very closed from public eyes in doing this all important task of drawing political lines and that has been unquestionably a major problem in hiding the true motivations including racial motivations that are unlawful behind why specific decisions are made. And we’ve seen that year after year. But I do think in the public there will be very serious consideration about creating independent redistricting commissions to ensure that overtly partisan gerrymandering drawing of lines that is really not a reflection of the political viewpoint distribution in the population is prevented.

For more information on the Mexican American 
Legal Defense and Educational Fund (MALDEF), visit maldef.org.

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