Trump’s Effort to Rig the Census Failed, but the Fight Is Far From Over

Donald Trump declaring victory in the census case that his DOJ lost.
Donald Trump declaring victory in the census case that his DOJ lost. Nicholas Kamm/Getty Images

On Thursday, President Donald Trump announced that his administration would finally be giving up its quest to add a citizenship question to the 2020 census, ultimately concluding one of the greatest legal defeats of his presidency.

Of course, the massive surrender to the reality of an unnavigable loss at the Supreme Court last month was presented as a complete and total victory.

“Today, I’m here to say that we are not backing down on our effort to determine the citizenship status of the United States population,” Trump said during his press conference in the Rose Garden on Thursday, flanked by Commerce Secretary Wilbur Ross and Attorney General William Barr. “I stand before you to outline new steps my administration is taking to ensure that citizenship is counted so that we know how many citizens we have in the United States.”

Those new steps are apparently coming in the form of an executive order that will direct other federal agencies to cooperate with the Commerce Department to help determine the number of citizens and noncitizens in the country. This action had originally been recommended by the Census Bureau as an alternative to the contentious monthslong legal battle over putting a citizenship question on the census form.

“Thank you, Mr. President, and congratulations on today’s executive order,” Barr said upon the announcement of the surrender.

The administration finally caved after a tumultuous week in which Department of Justice attorneys had told a district court that they would give up the question and then reversed course following Trump tweets promising to push forward.

But the announcement does not mark the end of the administration’s efforts to dilute Latino political power. Prior to the Supreme Court’s rulings, evidence emerged that a GOP redistricting operative had helped to concoct the citizenship question as a means of drawing maps in a way that would be “a disadvantage to the Democrats” and “advantageous to Republicans and non-Hispanic Whites.”

The initial pretextual reason for including the question—according to the evidence, also concocted by that same GOP operative—was that it would be needed to help the Department of Justice enforce the Voting Rights Act for Latino voters. But Chief Justice John Roberts joined the court’s four more progressive members to rule that this reason had been “contrived.”

Congress has scheduled contempt of Congress votes for Ross and Barr for their refusal to comply with subpoenas on the citizenship question.

During the Rose Garden speech, both Trump and Barr seemed to concede that the actual reason for the citizenship question was to offer Republicans and “non-Hispanic whites” an advantage in future redistricting efforts. Both promised that the executive order would provide information that could be used in such efforts.

“This information is also relevant to administering our elections,” Trump said. “Some states may want to draw state and local legislative districts based upon the voter-eligible population. Indeed, the same day the Supreme Court handed down the census decision, it also said it would not review certain types of districting decisions, which could encourage states to make such decisions based on voter eligibility.”

In that second Supreme Court case, cited by Trump, the court ruled that questions of excessive partisan gerrymandering are not reviewable by courts. The fact that Trump brought it up is further confirmation that the citizenship question was never about enforcing voting rights, but rather an effort to entrench Republican and “non-Hispanic white” advantage in elections.

In more genteel terms, Barr essentially said the same thing.

“That information will be used for countless purposes, as the president explained in his remarks today,” the attorney general offered. “For example, there is a current dispute over whether illegal aliens can be included for apportionment purposes. Depending on the resolution of that dispute, this data may be relevant to those considerations. We will be studying this issue.”

Studying the issue! Nothing to worry about there. As University of California–Irvine election law expert and Slate contributor Richard Hasen noted in his analysis of the decision, this effort to change how states are apportioned according to voting-eligible population rather than total population is still very much a live issue:

The government will still collect citizenship data to give Republican states a way to draw districts with equal numbers of voter eligible citizens, rather than all persons, thereby diminishing Hispanic (and Democratic) voting power. (The question of whether that is permissible will have to be decided by the Supreme Court, where the odds are good that drawing such discriminatory district would be allowed.) 

Basically, the Constitution says that redistricting is meant to take place according to a census count that includes an “actual enumeration” of the “respective numbers” of “counting the whole number of persons in each State.” But as Hasen has noted, in the 2016 Supreme Court ruling Evenwel v. Abbott, Roberts’ court left open the question of whether this language actually means states must draw district lines according to total population, or can do so on the basis of voting-eligible population. Alabama has revived the effort to exclude noncitizens from its apportionment count in a lawsuit against the Census Bureau and the Commerce Department.

While completely surrendering on this citizenship question fight, Trump’s executive order leaves open the door for future such efforts to redefine who counts as a part of the U.S. population.