Slate Laments the Unfairness of a Citizenship Question on the Census

It’s not about getting an accurate count of how many people are in America and how many are citizens. It’s not about identifying needs and determining budgets for programs that may be restricted to citizens only.

And it’s definitely not about supporting enforcement of the Voting Rights Act.

According to the media after Tuesday’s arguments before the Supreme Court, the Trump administration’s decision to restore a question on the 2020 census about citizenship is a naked power grab which Republican-appointed justices are prepared to abet.  

“The Supreme Court is Poised to Shred Its Credibility to Let Trump Rig the Census,” read the headline atop Mark Joseph Stern’s piece on Slate.

The Court, Stern wrote, is prepared to issue a ruling, the consequences of which “will last longer than Donald Trump’s presidency, well into the term of the next president, and possibly the one after that. Hispanics and immigrants will be undercounted, leading to overrepresentation in the House of Representatives and state legislatures of disproportionately white and rural regions. The result will entrench Republican power into the 2030s, depriving Democrats of representation in Congress and state legislatures, as well as electoral votes. States with large immigrant communities will lose billions in federal funding. Ultimately, the citizenship question is not some wonky dispute about proper census protocol. It is a dispute over who counts in America.”

Stern and others ignore a number of key facts. The question has been on the census for most of its existence, dating back to 1800 when Thomas Jefferson himself requested it to determine how much of the population growth was coming from births in the young country and how much from immigration.

In a sense, it is on the census today. It was on the long census form until 2000 and remains on the American Community Survey, the questionnaire used to drill down into Americans, their homes, families and communities.

The left seems certain the question will lead to immigrants avoiding the census and thus being undercounted, but there is no proof of such.

And there are a number of legitimate reasons to ask the question – among them voter dilution cases tried under the Voting Rights Act. In its letter supporting the decision to include the question, the Justice Department stated that, for cases involving gerrymandering and other methods of disenfranchising minority voters, “citizen voting-age population is the proper metric for determining whether a racial group can constitute a majority,” wrote Mike Gonzalez of The Heritage Foundation in 2018.

In January, when a lower court judge enjoined the move and set the stage for Tuesday’s arguments, Stern had hailed his decision in “Federal Judge Obliterates Trump’s Census Shenanigans and Dares the Supreme Court to Reverse Him,” claiming the “sprawling, meticulous 277-page opinion” by the lower court judge provided “a challenge to the Supreme Court which says, in essence: You cannot reverse my ruling without looking like hypocritical suckers.”

He also claimed the decision would, in part, depend on whether the lower court judge “was allowed to go beyond the official record to reach his decision – by, for instance, permitting the deposition of DOJ officials.”

There is no indication this played into the reasoning by justices on Tuesday in any way.

Instead, they focused on issues such as the fact the UN recommends the question and many Western countries, including Canada and Mexico, already ask it. Chief Justice John Roberts forced Barbara Underwood, the solicitor general of New York, one of the 18 states that sued over the matter, to admit the question would help with voting rights enforcement.

Stern said it was hypocritical for the justices to cite the UN recommendation since they generally oppose applying international law in US courts – a non-sequitur since this involves census practices and not applying laws – and also because Roberts, among others, “has written and joined opinions gutting” the Voting Rights Act and conservatives are not usually big on deference to federal agencies.

“A greater hypocrisy is difficult to imagine,” he wrote.

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Author: Brian McNicoll