Court Records Reveal Plan to Use Census for Racial Discrimination

Just weeks before the Supreme Court will determine the constitutionality of placing a citizenship question on the 2020 Census, newly released documents from a federal trial demonstrate that Trump administration officials falsely testified about the Justice Department’s motives and justification for adding the question, a decision that has been roundly criticized by the nation’s leading scientific and civil rights organizations. The documents reveal that renowned and recently deceased redistricting expert Thomas Hofeller played a direct role in advocating for a Census citizenship question that would provide data needed to implement racially discriminatory gerrymanders using citizen-only redistricting populations.

This new evidence, together with the Trump Administration’s previous attacks on voting rights and misuse of election science, underscores the importance of the Supreme Court’s upcoming decisions on both the citizenship question and the constitutionality of partisan gerrymandering. It is increasingly evident that through the distortion of science, core institutions of American democracy are under direct attack, and that the Constitutional protection of equality under the law will erode in the absence of judicial oversight.

Hofeller was commissioned for an analysis in 2015 that showed how the Republican Party could design even more extreme gerrymanders using the citizen voting age population to create districts, rather than the total population. This question was the subject of a voting rights case that same year, where Texas officials argued before the Supreme Court that the Constitution required that voters, not persons, be counted for apportionment of election districts.

Hofeller’s study of Texas state legislative districts showed that citizen-only districting would require expanding the geography of heavily Latino, traditionally Democratic voting districts, which in turn would be “advantageous to Republicans and non-Hispanic whites.” But Hofeller concluded that “Without a question of citizenship included on the 2020 Decennial Census questionnaire, the use of citizen voting age population is functionally unworkable.”

Records show that Hofeller urged the Trump Administration to add the question, and that he worked directly with Mark Neuman, who then testified that using Census citizenship data was necessary to better enforce the Voting Rights Act and increase Latino political participation (despite the fact that VRA enforcement has never relied on Census citizenship data since it was passed in 1965).

That justification has been thoroughly discredited by election experts and several federal judges who have sided with scientific and civil rights groups seeking to stop the question from being added. Adding such a question, when adequate data is already available through the American Community Survey, would reduce the Census response rate, distort the results, and make it more difficult to enforce the Voting Rights Act.

The Court now has before it concrete evidence that the citizenship question addition is an effort to deploy racially discriminatory gerrymandering to gain political power. Several other studies support Hofeller’s claims that citizen-only districting would dilute Latino representation in Congress and state legislatures, and that substantial power would shift away from areas with more immigrants and people of color, to already over-represented areas with more non-Hispanic whites and older residents. Unfortunately, the Roberts Court does not have a great record of relying on clear evidence when it comes to protecting voting and civil rights: It has already weakened the Voting Rights Act in Shelby v Holder, turned a blind eye to voter purging from registration lists in Husted v Randolph, and showed extraordinary deference to executive power, including the president’s religious hostilities, in Trump v Hawaii.

This is disheartening because when one considers the three aspects of elections that this new evidence touches on, the path to entrenched minority rule and further erosion of democracy is clear.

• A citizenship question on the Census would itself result in more non-citizens and other immigrants not completing it, distorting the apportionment of seats to the House of Representatives and the allocation of millions in federal funds to states and localities;
• While the Court has unanimously upheld the right of states to count all persons in redistricting, at least some of the Court’s conservatives lean in the direction of allowing citizen-only redistricting, which would enable further discrimination and distortion;
• Without a clear ruling to restrain partisan gerrymandering, mapmakers will use such data to mask racial gerrymandering as “partisan politics” when in reality the two are increasingly inseparable.

If the Supreme Court is to uphold its constitutional obligation, it must apply the unanimously supported opinion that Ruth Bader Ginsburg crafted in that Texas apportionment case, where she stated“As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote.”

Indeed, the Fourteenth Amendment binds us to the principle of political equality, and the Decennial Census is the scientific instrument that allows us to achieve it, at least as far as political representation gets us there. The Court must not allow the Census to be weaponized as a tool for the distortion of political power. Along with the Voting Rights Act, it is arguably our best means of securing the integrity of our electoral systems and our status as a democracy.