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The census citizenship question was designed to discriminate — until incompetence doomed it

Everyone knows why the Trump administration wanted to add a question to the census. The attempts to conceal that may be their undoing.
Image: Secretary of Commerce Wilbur Ross testifies during a hearing on Capitol Hill on May 10, 2018.
Secretary of Commerce Wilbur Ross testifies during a hearing on Capitol Hill on May 10, 2018.Alex Wong / Getty Images file

Two years into the Trump administration, and the early theory that his actions are a complicated game of three-dimensional chess that liberals can’t comprehend is increasingly being undermined by multiple compelling illustrations of the Trump administration’s inept and malevolent governance.

The latest example came on Monday evening, when federal Judge Jesse M. Furman stopped a question about residents’ citizenship from being added to the 2020 U.S. Census by Commerce Secretary Wilbur Ross.

The reason that the Trump administration wanted to add a citizenship question to the census despite substantial opposition from within the Census Bureau is not hard to understand. There is significant evidence that asking about people’s citizenship status, even on a form that carries no weight of law and is not supposed to be used by law enforcement, makes vulnerable racial minorities less likely to complete the census form — particularly in a hostile political climate. Lower response rates means that the relevant communities get less political representation during the Congressional reapportionment process and are also denied federal funds to which they would otherwise be entitled. Thus, the purpose of adding the question was simple: To dilute the political representation of racial minorities.

Unfortunately, Furman did not rule that adding the question about citizenship was necessarily unconstitutional; he noted that, in the absence of testimony from Ross (to which the government had objected) the plaintiffs had not proved unconstitutional racially biased intent. Instead, Furman held that Ross’s attempt to add a citizenship question was an “arbitrary and capricious” violation of the Administrative Procedures Act — i.e., yet another egregious abuse of power by the Trump administration.

Still it’s very unlikely that the racial effects were incidental or unintentional. John Gore, the Republican official who emails obtained by ProPublica revealed was the author of the letter to the Census Bureau suggesting the citizenship question, has a long history of supporting efforts by Republicans to suppress the votes of racial minorities. That a question about citizenship would further existing Republican efforts to reduce the political representation of racial minorities is highly unlikely to be a mere coincidence.

The administration’s denial about the effects of a citizenship question, however, was one reason Furman found its actions illegal. Ross asserted to the court that “no one provided evidence that reinstating a citizenship question on the decennial census would materially decrease response rates.” This is, as Furman demonstrated, flatly false; as the judge noted in his opinion the Census Bureau in fact provided evidence, based on comparison with past surveys, that a citizenship question would decrease response rates by more than 5 percent.

Ross was also flatly wrong when he justified his decision to the court on the basis of a desire for “more complete and accurate data,” since the evidence provided by the bureau showed that the citizenship question, by reducing response rates, would make the data less complete and accurate.

Because of the inconsistency between Ross’s stated justifications and the available evidence, Furman found that his actions were “arbitrary and capricious” — and hence illegal. Ross, according to the judge, “failed to disclose his true rationale,” presumably because his justifications were mere pretext for a discriminatory purpose.

The court also determined that Ross failed to comply with a statutory requirement when adding the question: he law requires that the department give at least three years notice before the addition of any question to the census. So, in its haste to attack disfavored minorities, the Trump administration once again got sloppy, and in this case failed to comply with the basic requirements of the Administrative Procedures Act and the 1976 Census Act.

Still, despite the fact that Furman decided his case on solid technical grounds rather than questioning the ends being pursued by the administration, it’s unclear whether his decision to axe the citizenship question will hold.

But, it might not need to hold up for very long: As Dara Lind of Vox observes, the 2020 census forms will start printing this fall, which means the administration has mere months to win its case — in part because of its own foot-dragging, for which it was earlier admonished by Furman. Past then, and the question might be slated for the 2030 census, but any future administration could withdraw it between now and 2027.

This case — and there are two other suits pending in different courts — will now likely go to the Second Circuit Court of Appeals, and how sympathetic the court would be to the administration’s arguments would depend on which three-judge panel is drawn.

Given the time constraints, however, Trump administration will probably seek either a stay of Furman’s ruling from either the Second Circuit or the Supreme Court, or a highly expedited legal process moving forward.

What the courts will do, though, is simply unknowable. The Supreme Court can certainly be expected to be more sympathetic and deferential to the Trump administration than Furman was, but whether they’ll want to go the extent of staying Furman’s opinion is an open question, especially with other, similar suits pending in which no decisions have yet been issued.

But what the case that was before Furman shows is that, yes, what the administration was trying to do with the citizenship question was odious and potentially unconstitutional — as many people expected. But like many of the administration’s other actions, their efforts may be stopped only because they were too incompetent to discriminate in any of a number of totally legal ways. And that’s perhaps the real problem.