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Is the Push for a Citizenship Question on the Census Discriminatory?

By Christopher Coble, Esq. on July 08, 2019

From 1820 to 1950, the government census gathered information on citizenship status, as well as standard demographic information like race, sex, and age. The government dropped citizenship inquiries in 1960, based on evidence that noncitizens would be less likely to participate in the census if they were worried that honest answers to the citizenship question could be used against them and their loved ones.

The Trump administration attempted to re-introduce the citizenship question on the 2020 census, claiming that it would provide more accurate information for drawing voting districts. That supposed reasoning has been scrutinized, politically and legally, and last month the Supreme Court declared that explanation was "more of a distraction," and blocked the citizenship question. For now. The issue is still very much alive, and now another court is considering whether the government's insistence on including the question is intended to discriminate against immigrant and Hispanic communities.

Steeped in a Discriminatory Motive?

Importantly, the Supreme Court did not rule that the Commerce Department couldn't include the citizenship question at all, only that, thus far, the government did not provide a reasonable enough explanation for why they want to re-introduce it. Splitting the difference in this way made the case one of the least popular of the Court's June term, and left both sides guessing what's next. At first, Justice Department lawyers asserted the question would be dropped. Then President Trump insisted it would be included.

With the citizenship question status still up for grabs, so to speak, a federal court is proceeding with discovery in a lawsuit seeking a declaration that the question is discriminatory. "Plaintiffs' remaining claims are based on the premise that the genesis of the citizenship question was steeped in discriminatory motive," U.S. District Judge George Hazel explained. "Regardless of the justification Defendants may now find for a 'new' decision, discovery related to the origins of the question will remain relevant."

So, what will both sides find during the discovery process? Possibly more evidence of the government's motive in adding the question. The lower court may even consider some "bombshell" evidence that wasn't included in the Supreme Court case. As we noted before the Court made its ruling, Tom Hofeller, the Republican Party's top gerrymandering expert, was also influential in the decision to add the citizenship question to the 2020 census, and wrote that it "would clearly be a disadvantage to the Democrats" and "advantageous to Republicans and Non-Hispanic Whites."

This evidence would undercut government claims that the question is essential to enforcing the Voting Rights Act. But the Commerce Department doesn't have much time -- some 1.5 billion paper mailings need to be printed soon if they are going to hit mailboxes in mid-March 2020 for the census.

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