Census Citizenship Question Ruling Sets Up Legal Path for Texans Fighting the Question

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San Antonio's population has grown 10% since a census was taken in 2011.

Scott Ball / Rivard Report

An undercount in the 2020 Census would jeopardize billions of federal dollars state and local communities receive for health care and transportation.

The U.S. Supreme Court’s decision to block, at least for now, the Trump administration’s plan to include a citizenship question on the 2020 census offered opponents of the question a temporary reprieve.

But it also gave another legal challenge to the citizenship question – this one filed, in part, by Hispanic Texas lawmakers and several Texas-based nonprofits – some legal breathing room to move forward as a federal judge considers whether the administration added the question to intentionally discriminate against Hispanics.

In a complicated ruling, the Supreme Court found Thursday that the Trump administration had provided a “contrived” rationale for wanting to gather citizenship information through the once-a-decade count and agreed with the lower court that blocked the inclusion of the question if the administration could not offer up a better justification.

“Altogether, the evidence tells a story that does not match the explanation the [U.S. Commerce] secretary gave for his decision,” said Chief Justice John Roberts, writing for the majority, pointing to the administration’s purported reasoning that the question was added after the U.S. Department of Justice asked for citizenship data that would allow it to better enforce the federal Voting Rights Act.

That decision came two days after a federal appeals court ruled that Maryland-based federal Judge George Hazel – who is considering another legal challenge that was not before the high court – could consider new evidence that recently emerged in the litigation related to the federal government’s motivation for adding the question.

That challenge in Maryland was filed on behalf of more than two dozen plaintiffs, including the Texas House’s Mexican American Legislative Caucus, the Texas Senate Hispanic Caucus, and several Texas-based nonprofits that advocate for Latino residents. They argued that including the question would lead to a disproportionate undercount of immigrants and people of color.

Hazel had already agreed with those plaintiffs’ allegations that the inclusion of the citizenship question violated the U.S. Constitution’s enumeration clause and a federal law that governs federal agencies and their decision-making process.

But they failed to convince Hazel that the question unconstitutionally violated equal-protection guarantees and that Trump administration officials had conspired to add the question to the 2020 questionnaire based on animus against Hispanics and immigrants, particularly when it comes to counting noncitizens for the apportionment of political districts.

(Those issues were not before the Supreme Court in the case it ruled on this week.)

On Monday, Hazel said he would reconsider the plaintiffs’ arguments after evidence emerged suggesting the question may have been tacked on to advance Republican gerrymandering and undermine Hispanics’ political clout.

At the center of that evidence was an analysis of the Texas House’s 150 districts by Thomas B. Hofeller, a longtime Republican redistricting strategist, to demonstrate the effect that using the population of citizens who are of voting age, as opposed to total population, would have on drawing up legislative districts.

In his analysis, Hofeller noted that such a change in how districts are drawn – which would clearly be “advantageous to Republicans and Non-Hispanic Whites” – was “functionally unworkable” without the inclusion of a citizenship question on the 2020 census questionnaire. The evidence showed that years later, Hofeller worked to “concoct” the Voting Rights Act rationale the administration offered for adding the citizenship question, Hazel wrote in a recent order.

“It is becoming difficult to avoid seeing that which is increasingly clear,” Hazel said. “As more puzzle pieces are placed on the mat, a disturbing picture of the decisionmakers’ motives takes shape.”

For those fighting the administration in Maryland, the Supreme Court’s ruling underscored the legal stakes.

“The citizenship question is blocked for now but the Supreme Court’s decision leaves open the possibility for it to come back. That’s why our lawsuit is so important,” said Juanita Valdez-Cox, the executive director of La Unión del Pueblo Entero. “In fact, the court in Maryland is weighing new evidence that shows that the real intention is to injure communities of color for partisan gain.”

Lawyers with the Mexican American Legal Defense and Educational Fund, which is representing some of the Texas plaintiffs, said Thursday they would immediately pursue their claims before Hazel. They had already asked him to enter an injunction while the court was still considering the case so they could prevent the administration from adding the citizenship question to the 2020 census forms it had planned to print this summer.

Although this case will play out in Maryland, the ongoing census fight could deepen the partisan divide on the issue in Texas.

Texas Democrats have vociferously opposed the citizenship question because an undercount could affect areas of the state that are more likely to be home to Hispanic and immigrant households, which they largely represent. And the legislative caucuses alleging the Trump administration added the question to intentionally discriminate against Hispanics by diluting their political power are made up largely of Democratic lawmakers.

Texas Republican leaders, meanwhile, have endorsed the citizenship question. Texas Attorney General Ken Paxton has signed on to amicus briefs in support of the administration’s push to collect citizenship data on the census. Though he was largely silent on the issue for months, Gov. Greg Abbott recently told the Austin American-Statesman he supported the effort because “it seems like it would yield valuable information” and that concerns about an undercount are “nothing other than conjecture.”

In reality, the U.S. Census Bureau itself has found that a citizenship question on the census could lead to an undercount of noncitizens and Hispanics.

That would come at a high financial and political price for Texas.

Texas has long been considered a hard-to-count state, but local officials and demographers have indicated that the addition of the citizenship question would exacerbate those challenges because immigrants and their families would be too afraid to respond to a government questionnaire that asks about citizenship status in the current political climate.

An undercount would jeopardize the billions of federal dollars the state and local communities receive for health care assistance and transportation projects. Various projections have also shown that an undercount tied to the citizenship question could cost Texas at least one of the three congressional seats it was expected to gain because of the massive population growth the state has experienced in the last decade. That would also minimize the state’s gain in electoral college votes during presidential elections.

9 thoughts on “Census Citizenship Question Ruling Sets Up Legal Path for Texans Fighting the Question

  1. The Supreme court ruled that that questions does not have to be put to the public. besides, it was just a trump thing to deny voting to Hispanic CITIZENS! More trump fake baloney, he pans off to the public EVERYDAY!

  2. John Roberts, of the US Supreme Court, is giving President Trump more time to come back with a better reason for adding the Citizenship question on the US Census. The real reason, to add the Citizenship question, is to reduce Hispanic votes and help President Trump win a second term, and John Roberts is smart enough to know this.

    John Roberts also knows that leaving prosecution of illegal gerrymandering to the States will also reduce Hispanic votes, and help Trump win a second term. Both the citizenship question and illegal gerrymandering will result in inappropriate or inadequate voting. Both violate the Voting Rights Act.

    Misinformation is creating fear of immigrants, which in turn cause violation of rights of immigrants.

    For example, in January 2019 the President tweeted misinformation that 55,000 of the 95,000 non citizens (legal permanent residents), who applied for a Texas driver’s license, committed voter fraud. Prior to the voter fraud tweet, the President of the United State has referred to people from Mexico as rapists and criminals. He has referred to African countries as sit holes. To hold the President accountable for his misinformation, the media must persistently remind the public of the misinformation.

    Texas Governor Abbott, the Texas Secretary of State, and the Texas Attorney General started the misinformation about voter fraud among the 95,000 legal permanent residents, who applied for a Texas driver’s license. Texas Counties have reported back to the Texas State officials that there is no voter fraud crisis. The few voter fraud cases, which may be found, have probably already been prosecuted.

    Incidentally, I retired as an Immigration Officer. I interviewed legal permanent residents, who applied for US Citizenship. The citizenship applicants go through rigorous background checks and investigations. The few legal permanent residents, who voted, voted by mistake. Often, they were given wrong information, to register to vote, by well-intended State Agencies. Very few faced prosecution, and, those who did, faced very harsh penalties.

    We should not discourage legal permanent residents from being counted in the US Census by intimidating them with a Citizenship question. A Citizenship question may make legal permanent residents feel that they do not qualify to be counted. A citizenship question is not needed to reduce voter fraud or inappropriate voting. There is significantly more voter fraud and inappropriate voting from gerrymandering, from employer pressure, and from misinformation, than from immigrants.

    • I think maybe it is whichever party in power that does the gerrymandering. In the Supreme Court decision you reference two States were subject. A Democratic controlled Maryland legislature gerrymandered districts to squeeze out Republicans. A Republican controlled North Carolina legislature gerrymandered districts to reduce the impact of African American voters. There are not all that many Hispanics in either Maryland nor North Carolina.

      What we really need is some Congressional calm to put together nonpartisan legislation to end once-and-for-all gerrymandering. I may as resurrect dreams of Santa Claus coming down the chimney.

  3. If one is really truthful about this: Stop GOP gerrymandering, and THIS will reduce voter fraud across the US of A.; but the GOP does not want this to happen, nor do they address this issue of gerrymandering!

  4. Project Veritas demonstrated the illicit voters. Now that such places as CA and NY are allowing illegals to get DLs, which automatically registers them to vote in those particular regions, illicit voting is an even larger threat. To sit here and pose that this is denying righter votes to any ethnic group is a political farce. Is gerrymandering an issue? In some places and on both sides. But THIS is about calculating how many illegal immigrants are in this country. It’s time to start putting our citizens first, people.

  5. To ask or not to ask, that is the question. The current political climate should not be the determining factor in the issue of individual status regarding voting and representation in our republican form of government. Asking and truthful answers from all is the best way to have an appropriate and valid census that properly accounts for all here and quantifies the three basic groups of, citizens, legal residents and illegal residents information necessary to facilitate good future decisions. The first two groups certainly have nothing to fear from a truthful answer to the question, the third it can be understood why they might have concerns which might be an encouragement to join one of the first two groups. The very act of answering the census questions truthfully means you have a voice and influence in the process within the limits of your status or classification, that is not a bad thing. If an individual of the non-citizen group desires to have a bigger influence such as the right to vote then they have the ability to become a citizen and enjoy that right.
    Gerrymandering is not the exclusive tool of any political party and should be prevented regardless of what party is seen to be in control of the districting process. The intimidation or fear associated with the census for those who are not citizens appears to stem more from a lack of understanding and education or an unwillingness to legally engage in the process to become a citizen or a legal resident and not from one of repercussions.
    The process of separating or identifying the group or class of individuals in a census that sets the basic ratio of representation of our elected leaders is a fundamental to our republican form of government and having a valid census is key when used for establishing representation in our leaders.
    The inclusion of all groups as setting this ratio of representation would be a blatant form of gerrymandering which is fundamentally illegal within the rules we govern ourselves by. The difference between a lawful legal citizen and a lawful legal resident as well as illegal residents, comes with a fundamental difference in the privileges and entitlements associated with that difference and rightly so.
    Let us keep it simple the legal lawful citizens of the USA are entitled to a vote and therefore should be accounted for separately in the process of representation in our form of government which correctly influences the ratio of representation. The legal lawful residents or illegals are not, but the knowledge of knowing they are here and are contributing to, as well as using the resources of the USA is vital information which allows us legal lawful citizens to properly plan thru our legislative process for their needs as well as ours’s as citizens, they should be counted without providing influence in our process of representation but having an influence on our decision making as a country. Given the every ten year collection period of this information the question seems both appropriate and helpful information in our ability as citizens to plan and care for all. It certainly does not preclude a lawful legal or illegal resident from becoming a lawful legal citizen and therefore becoming eligible for those additional benefits of being a citizen.
    If the issue is the reduction of voter fraud start at the beginning and require appropriate vetted means of showing you as an individual have the right to vote, eliminate the gray at that level.
    So grateful to our founding fathers for establishing this great republic of the USA and for protections that allow for these types of open discourse.

  6. RC, you state above that Project Veritas demonstrated illicit voters. I Googled Project Veritas and found several comments that Project Veritas spreads misinformation. It was banned from YouTube in January 2019.

  7. if they are legal to begin with, then why all the lawsuits and decades of fighting to prevent the question? Are you afraid of how many will answer that yes, they are illegal? what would the truth reveal?

    @ RN – of course Google is not biased in any way – just google it!

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