The U.S. Supreme Court heard arguments Tuesday in a case challenging the Trump administration’s plans to include a citizenship question on the 2020 census. Voting rights activists fear that adding the question will deter immigrants from participating in the census and lead to a vast undercount in states with large immigrant communities. Census officials have estimated 6.5 million people will not respond to the census if the citizenship question is added. This undercount could affect everything from the redrawing of congressional maps to the allocation of federal funding. The case centers on whether Commerce Secretary Wilbur Ross had the authority to add the question to the census. The American Civil Liberties Union and 17 states have sued, saying Ross’s move was aimed at deterring immigrants from participating in the census. During the oral arguments, the court’s conservative majority appeared to side with the Trump administration, while the liberal minority questioned the administration’s motives and methods. Liberal Justice Sonia Sotomayor said, “There’s no doubt that people will respond less. If you’re talking about prediction, this is about 100 percent that people will answer less.” We speak with Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund. MALDEF is representing plaintiffs in one of the lawsuits challenging the census citizenship question. We also speak with Ari Berman, senior writer at Mother Jones. His new piece is titled “In Census Case, Supreme Court Suddenly Cares a Lot About Voting Rights Act.”
JUAN GONZÁLEZ: The U.S. Supreme Court heard arguments Tuesday in a case challenging the Trump administration’s plans to include a question on citizenship to the 2020 census. Voting rights activists fear that adding the question will deter immigrants from participating in the census and lead to a vast undercount in states with large immigrant communities. Census officials have estimated 6.5 million people will not respond to the census if the citizenship question is added. This undercount could affect everything from the redrawing of congressional maps to the allocation of federal funding.
The case centers on whether Commerce Secretary Wilbur Ross had the authority to add the question to the census. The American Civil Liberties Union and 17 states have sued, saying Ross’s move was aimed at deterring immigrants from participating in the census. During the oral arguments, the court’s conservative majority appeared to side with the Trump administration, while the liberal minority questioned the administration’s motives and methods. Liberal Justice Sonia Sotomayor said, quote, “There’s no doubt that people will respond less. If you’re talking about prediction, this is about 100 percent that people will answer less.”
AMY GOODMAN: Chief Justice John Roberts appeared to support the addition of the citizenship question, saying it was, quote, “quite common” to add a demographics questions to the census. He asked the plaintiffs in the suit, “Do you think it wouldn’t help voting rights enforcement?” Conservative Justice Brett Kavanaugh said the United Nations recommends countries ask a citizenship question on the census, listing a number of countries that ask about citizenship, including Spain, Germany, Canada, Australia, Ireland and Mexico. After the Supreme Court heard oral arguments, New York state Attorney General Letitia James, who helped bring the lawsuit, spoke outside the court.
ATTORNEY GENERAL LETITIA JAMES: Adding that particular citizenship question could lead to the undercounting in communities across America, particularly in immigrant communities and Hispanic communities. It would mean that communities entitled to resources wouldn’t get those resources. It would deny certain communities of equal representation. And so, in the interest of fairness, in the interest of upholding this quintessential American promise, we are obligated to ensure the most accurate count in the 2020 census. And as such, we must use every tool at our disposal, in our arsenal, to fight to protect its integrity. And that’s what we did today.
AMY GOODMAN: [We go now] to Los Angeles, where we’re joined by Thomas Saenz, president and general counsel of MALDEF, the Mexican American Legal Defense and Educational Fund. MALDEF is representing plaintiffs in one of the lawsuits challenging the census citizenship question. And here in New York, we’re joined by Ari Berman, senior writer at Mother Jones, reporting fellow at The Nation Institute, author of Give Us the Ballot: The Modern Struggle for Voting Rights in America.
So, Ari, you attended the Supreme Court oral arguments yesterday. Set the scene for us. And were you surprised by the tenor of the questions?
ARI BERMAN: I did. And this really is one of the most important cases for democracy in decades, Amy, because the census determines so many things in our society: how $880 billion in federal funding is allocated, how voting districts are drawn, how many House seats, how many Electoral College votes states have. There really is nothing we do that’s more important in a democracy than the census. And this one question about U.S. citizenship has the possibility to derail the entire census. One of the most important and longest constitutional responsibilities that our government has could now be derailed and turned into a political weapon by the Trump administration to target immigrants and places where lots of immigrants live.
And so, I was hoping I would hear these big-picture debates in the Supreme Court about the importance of the census and how this question threatens the census. Instead, the conservative justices on the court seemed very sympathetic to this question. They really didn’t question the motives of Wilbur Ross, the commerce secretary, who added this question, even though three different federal courts have struck it down. Six years ago, I was in the Supreme Court when they railed against the Voting Rights Act, called it an act of regional discrimination against the South. And then, suddenly, six years later, the same conservative justices that gutted the Voting Rights Act suddenly believe that this citizenship question is now necessary to enforce the Voting Rights Act, which every voting rights lawyer will tell you it’s not. And so, once again, we have a situation where the Supreme Court seems like they are about to side with folks that want to gut voting rights, roll back civil rights, target immigrant communities, as opposed to protecting one of the most important constitutional responsibilities that we have.
JUAN GONZÁLEZ: Well, I want to ask Thomas Saenz of MALDEF, Defense and Education Fund: What do you see as the—your take on how the hearing went yesterday?
THOMAS SAENZ: Well, I think it’s hard to predict from an oral argument in any case what the outcome will be. And I do think we have a chief justice who appreciates institutional integrity of the court and, more broadly, of the Constitution. I think we’ve seen him make unexpected decisions in previous cases, reflecting that belief in ensuring institutional and constitutional integrity.
And as Ari has stated, this is the most important issue that we’ve faced in decades. The census is a mandate that goes back to our Constitution’s very beginning, the direction to enumerate every decade all persons residing in the United States. And so much of what we do over the succeeding decade, from allocating seats in the House of Representatives among the states to drawing district lines, from local level up to federal level within the states, to how we distribute resources from the federal government, is determined by that enumeration. This is so integral to what we do as a democracy that I believe, when the justices have an opportunity to reflect further, we may well see a change in their initial reaction to this late-added and falsely added question to Census 2020.
AMY GOODMAN: I want to turn to Commerce Secretary Wilbur Ross speaking before the House Oversight and Reform Committee in March.
COMMERCE SECRETARY WILBUR ROSS: No one’s individual data will be used for any other purpose other than the aggregations that we provide externally. So, this is not a tool as such for immigration. Our job is simply to count the people, whether citizen or not.
AMY GOODMAN: If you can respond to the substance of this, Ari Berman, but also what has come out, the corruption around who exactly proposed this, and Wilbur Ross working with Bannon and Kobach, and who they are?
ARI BERMAN: Well, Wilbur Ross is really one of the most corrupt members of the Trump administration, and his actions in the census case demonstrate this. He has lied repeatedly about why he added this question to the census in March of 2018. He said it was needed for better enforcement of the Voting Rights Act, even though the Trump administration hasn’t filed a single lawsuit to enforce the Voting Rights Act. And this question hasn’t been on the census since 1950, and the Voting Rights Act was passed in 1965. So there was no pressing need to ask this question.
He said that the Justice Department initiated this question, when memo after memo after memo shows that Ross was the one who told the Justice Department, “We need this question on the census.”
And most importantly, he said he didn’t discuss this question with the White House, but it turns out that Steve Bannon, the chief strategist of the Trump administration and the architect of the Trump administration’s white nativist strategy, put Wilbur Ross in touch with Kris Kobach, the former secretary of state of Kansas, the leading architect of laws restricting voting and immigration in the U.S., to add this question to the census. And it was Kobach who told Wilbur Ross it was essential to add this question to the census. And this is really the smoking gun, the fact that Steve Bannon, Kris Kobach, Jeff Sessions—the most anti-immigrant, the most anti-voting rights people in the country—they were the ones who were instrumental in pushing to get this question on the census. It had nothing to do about enforcing voting rights. It was all about trying to target immigrants and preserve white political power for the next decade.
JUAN GONZÁLEZ: And, Thomas Saenz, your sense in terms of the impact that this could have if the question is allowed on the census, this whole issue, as Justice Sotomayor said, that it’s almost 100% guaranteed that many, many folks, especially immigrants in the country, will not—will choose not to cooperate with the census, and the impact that this could have, especially in the climate of the Trump administration constantly raising the dangers of undocumented immigration or, as they say, “illegal” immigration in the country?
THOMAS SAENZ: Yeah, absolutely right. The climate that’s been created by this administration, the Census Bureau has known for a long time, is already creating challenges for getting folks to respond to the census. As long ago as November 2017, before the announcement of the citizenship question, the bureau was reporting to its National Advisory Committee on Racial, Ethnic and Other Populations that it was already seeing unprecedented levels of noncooperation, unprecedented levels of refusing to completely complete a questionnaire. It was seeing that because of the atmosphere created by this administration. You add to that a citizenship question, in that level of distrust that is very high with respect to this administration in communities across the country, and you have a recipe for a very serious, serious undercount.
Now, there are folks across the country, including my own organization, MALDEF, that will work very hard to try to reassure people, to try to get as complete a count as possible. The bureau itself will invest in trying to convince people to participate. But we have created headwinds through the addition of the citizenship question, in a climate of great distrust for this administration, that make it virtually a foreseen outcome that we will have a higher undercount than we otherwise should have. And the implications of that for the next decade of policymaking in this country are monstrous.
JUAN GONZÁLEZ: And, Ari, I wanted to ask you. There are some—the extreme actions that some states in particular are taking, they’re not looking solely to redistrict based on an undercount, but also determine who gets the right to vote? I mean, actually count voters rather than residents?
ARI BERMAN: This is a really important point, Juan. And I think this is one of the reasons they want to add this question about citizenship, which is that everyone is counted for the purpose of drawing districts in this country. It doesn’t matter if you’re a voter or a nonvoter. It doesn’t matter if you’re a citizen or noncitizen. Everyone is counted, because everyone deserves representation.
What conservatives want to do now is they want to redraw districts counting only citizens, or possibly counting even only voters. What that would do is it would dramatically shift power away from areas that have a lot of immigrants, places like New York and California and Texas, and then redistribute political power to whiter, more rural and more conservative areas.
AMY GOODMAN: I mean, California could lose congressional seats.
ARI BERMAN: California could lose tens of billions of dollars. California could lose congressional seats. For the first time in the history of this country, California could actually lose congressional seats in the next round of redistricting.
AMY GOODMAN: The number of people we’re talking about is something like, it’s estimated—I think Sonia Sotomayor brought it up—something like 6 million people undercounted?
ARI BERMAN: Six million people might not respond to the form. But remember, this is going to affect a lot more than that, because it’s going to affect the places where they live. So the most populous parts of this country could lose representation. And what’s happening here is, the Trump administration wants to use the census as a weapon to preserve white political power in the face of massive demographic change, because what an accurate census is going to show is the country is more diverse than ever, more nonwhite than ever. But if you can stop that from happening, then the country is more white than it should be, more conservative than it should be and more Republican than it should be.