“You’re Talking About Excluding Millions”

How a Trump executive order could upend minority congressional representation in America.

Donald Trump speaks at a lectern, American flags hanging behind him.
President Donald Trump speaks during a press conference in the East Room of the White House on Jan. 15. Saul Loeb/AFP/Getty Images

In June, the Supreme Court ruled that the 2020 census could not include a citizenship question, bucking a Trump administration measure that could have led to the undercounting of immigrant communities. Yet just a few days after the ruling, Trump announced an executive order that would allow the government to obtain citizenship data anyway. On Tuesday’s episode of What Next, I talked with Ari Berman, a reporter at Mother Jones who covers attacks on democracy and voting rights, about this “stealth tactic” that could reshape whose votes count in this country for years to come. Our conversation, reprinted below, has been edited and condensed for clarity.

Mary Harris: You saw the first sign of this new voter suppression tactic back in July when the president gave a press conference. The Supreme Court had just ruled that the 2020 census could not ask about citizenship. At this press conference, Trump acknowledged the Supreme Court’s ruling but said he was issuing an executive order, allowing citizenship data to be gathered by the government without altering the census. He said, “Some states may want to draw state and local legislative districts, based upon the voter-eligible population.” Why did that moment stand out to you?

Ari Berman: It’s one line that could easily be buried as very wonky and technical, but to me, this was the smoking gun moment, because he’s making clear that he wants this citizenship data for redistricting purposes. He wants to take the data so that districts are drawn to not just include noncitizens, but, he says, “the voter-eligible population.” That means children would not be counted.

For decades, the way districts are drawn is everyone counts. Trump is saying, I want to do something totally different. I want to exclude everyone who is not eligible to vote from counting. When everyone saw the headline that came out of the press conference, “Trump Dropping Citizenship Question,” I saw a completely different story.

Right after Trump unveiled his new executive order, Republican redistricting experts began talking to state legislators about how they could benefit from the new rules. Slate got audio from a meeting of some of these experts back in August, just after Trump’s speech. They’re talking about techniques for drawing district maps, Republican maps, with state legislators. They tell these politicians: If you do your job well, you’re going to get sued. Someone’s going to say what you did wasn’t fair. One expert even encourages people in the room to throw away the notes they’re taking, so they won’t be caught plotting.

It’s sort of telling, because if Republicans were following normal redistricting principles, they wouldn’t be sued. But clearly there is some sort of deviation from what is considered acceptable standards, otherwise they wouldn’t be worried about facing all of these losses.

Hans von Spakovsky—who is an expert in the Heritage Foundation, an official in the Bush administration, a former member of Donald Trump’s election integrity commission, with a very long record of advocating policies that would make it harder for some people to vote—says outright to these state legislators, You should consider drawing districts to exclude non-citizens. And the reason you should do so, is the higher the number of non-citizens in a district, the more likely it is to be a Democratic district. So he’s basically saying that if you change how districts are drawn, it will help the Republican Party.

He actually says: “Liberals do not want you doing this. The higher the number of noncitizens in a district, the greater the chances they’re going to vote for a liberal.” It can’t be that their outward justification is about preserving white political power, but it sounds pretty close.

If this is challenged in court, they will probably have a different rationale for why they want to do it. But certainly, the stated rationale by von Spakovsky, and others, is that he believes drawing districts in such a way to exclude noncitizens, and potentially to exclude children from counting, will help Republicans at the expense of Democrats. They could say we want to do this for political reasons, but if you look at who’s going to be harmed, it’s overwhelmingly going to be communities of color.

There was a study done by the Leadership Conference on Civil and Human Rights that found that 55 percent of Latinos, 45 percent of Asian Americans, and a third of African Americans would not be counted toward political representation. That’s a staggering number of people to not be counted. More than half of Latinos in the United States are suddenly not going to be counted. So this is why I think this is such a big deal, because you’re not talking about excluding 10 people from political representation. You’re talking about excluding millions and millions of people, and entire communities, from being counted altogether.

We should say that 21 percent of white people would also be excluded, but they’re the lowest percentage in there.

There’s always going to be collateral damage, right? There are just going to be more of the other people that get hit by this. And so I think Republicans are thinking, “Yeah, this might hurt white people in certain areas, but by and large, the districts that we want to change are districts that are going to be very diverse, heavily urban districts that are more than likely to be represented by Democrats. And we might lose a Republican seat here, we might lose a Republican seat here, but Democrats are going to lose far more seats than Republicans are.”

Can we just home in on exactly how this would work? Because my understanding, looking at your reporting, is that when you stop counting all the people, it means that there are fewer representatives overall, because there are fewer people that you’re counting to represent. And so, because there are fewer representatives, those representatives are going to be dealing with the concerns of more people, and then there’ll be these people who are sort of there but not counted, and their concerns will probably be drowned out.

That’s exactly right. The Supreme Court has said that districts need to be roughly equal in population, but if you’re not counting everyone—if you’re only counting eligible voters—that means that districts that have fewer eligible voters have to take in more population. So they have the same number of eligible voters as a surrounding district.

For example, I told this story from a district in Houston that has 850,000 people—a state Senate district. That’s already a pretty big district. That’s more than most members of Congress represent. Half of [the district’s] constituents can’t vote, because they’re either under 18 or they’re noncitizens. It’s a very heavily Latino district. So what would happen to [the state representative] is because she doesn’t have enough eligible voters, her district would increase to over a million people. And depending on how you drew the district, her district could either be combined with another Democratic district to eliminate a Democratic district altogether, or you could put a ton of Republicans who are eligible voters from a surrounding district into her district, so that it’s no longer a Latino majority, and she potentially no longer has her seat.

Because those are the kinds of people who potentially wouldn’t vote for her.

Exactly. If you’re taking white conservative Republicans from suburban Houston, or even exurban Houston, or even rural Texas, some of these state Senate districts are pretty big geographically. Are they going to want to vote for a Latina Democrat? Not necessarily.

So there’s also the issue of less representation by minorities in the actual statehouses, because essentially, the districts will be drawn to favor the white population.

Exactly. There would be fewer minority legislators altogether. One study found that if Texas were to adopt a plan to exclude noncitizens and children from counting toward representation, Latino legislators would have the lowest level of representation since the 1980s. So they would go four decades backward.

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