In the June 27th decision in Department of Commerce v. New York, Chief Justice John Roberts partially agreed with the liberal majority in ruling that Commerce Secretary Wilbur Ross’ motive for including the citizenship question on the 2020 census was a subterfuge.
Ross, who oversees the census, said that the citizenship question was intended to comply with the 1965 Voting Rights Act protecting African Americans’ voting rights, a preposterous assertion as the The Voting Rights Act is a landmark piece of legislation that bans racial discrimination in voting.
Lower court judges in New York and Maryland found that the citizenship question was intended to intimidate minorities (both US citizens and noncitizens) in states such as New York, whose large numbers of permanently legal residents (PLR’s) would not respond to the questionnaire if the citizenship question were included.
New York and Maryland, as well as civil rights groups and nonprofit organizations across the country, have filed lawsuits blocking Ross’ action.
They argue that a citizenship question would reduce the tally by an estimated 6.5 million people. Hispanics, immigrants and minority communities, some of whom have family members and friends who are undocumented, would be most impacted.
An undercount, the plaintiffs warned, would result in a loss of billions of dollars of federal funds and affect reapportionment of Congressional seats in favor of states controlled by Republicans.
Something Better than the Explanation Offered
Roberts wrote in his majority decision, “if judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in the case.”
“Reasoned decision making under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction,” the Chief Justice wrote.
Bloomberg’s Noah Feldman reports, “The evidence of Trump’s devious motives that was written by [Manhattan] Judge Jesse Furman’s district court opinion “was so convincing on this point, so steeped in evidence, that it was essentially bulletproof as to the facts.”
Another Bite off the Apple
While Roberts agreed with the four liberal Justices that the citizenship question may not be printed as a pretext for helping minorities comply with the Voting Rights Act, he gave Trump’s lieutenants another bite off the apple, ruling the inclusion of the citizenship question was “constitutionally and statutorily permissible.”
Roberts’ decision is wreaking havoc among both the Commerce Department and the Justice Department officials, who initially agreed in public memos to begin printing the census without the citizenship question, starting on July 1, as planned.
However, just before July 4th, Trump tweeted the memos were “fake” and White House aides spent July 4th weekend scrambling to find a motive Roberts would buy.
Leo Leopold, a Federalist Society powerhouse–who helped his Federalist colleagues chose both Justices Gorsuch and Kavanaugh as well as numerous other federal judges–is leading the charge.
Estranged Daughter Discovers Hard Drives
Michael Wines of the New York Times wrote in May that Republican operative “Thomas B. Hovelled achieved near-mythic status in the Republican Party as the Michelangelo of gerrymandering, the architect of partisan political maps that cemented the party’s dominance across the country.
After he died last summer, his estranged daughter found hard drives on her father’s home computer disclosing he had played a leading role in hatching the plot to use the Voting Rights Act to justify Trump’s citizenship question.
“Files on those drives showed that he wrote a 2015 study concluding that adding a citizenship question to the census would allow Republicans to draft even more extreme gerrymandered maps to stymie Democrats,” Wines writes.
“And months after urging President Trump’s transition team to tack the question onto the census, he wrote the key portion of a draft Justice Department letter claiming the question was needed to enforce the 1965 Voting Rights Act.”
The material was turned over to federal authorities by Heller’s daughter.
Trump’s Executive Order Threat
Richard Hazen, a law professor at the University of California, Irvine, told NPR’s Audie Cornish, that, “the president can issue an executive order and say whatever he wants.
“The question is whether it would satisfy the Court?”
“Right now there are injunctions, [in New York and Maryland] that prevent the printing of the census form with the citizenship question on it.
“So, whether it’s in an executive order or in a statement from Secretary Wilbur Ross or it’s in some other form, there’s going to have to be a good enough reason given for including the question, “Hazen says.
“And if that reason doesn’t convince, ultimately, Chief Justice John Roberts, then it’s likely not going to be good enough to get the question back on the census form.”
Liberals Agree with Census Bureau
The four liberal justices said they could not find any reasons in the trial record for the Commerce Secretary’s defiance of Census Bureau’s guidance that stated the bureau strenuously objected to inserting the citizenship question.
Mandated by the Constitution, the census counts all U.S. residents, regardless of citizenship or residency status.
The Census Bureau is required by law to count the population as of April 1, 2020.
Clarence Thomas’ Metaphor
Even liberals agree with the metaphor Justice’s Thomas used in his dissent.
Thomas said the Court has opened a “Pandora’s box of pretext-based challenges in administrative law.”
Liberals, however, will never agree with Thomas’ reasoning in Department of Commerce v. New York that the Voting Rights Act explanation “should be taken at face value”.
DOJ Changing Legal Team
In a highly unusual twist, the Justice Department is attempting to change the team of lawyers involved in the litigation. Specifically, the Department of Justice wants to replace the career DOJ attorneys, who have been defending the administration’s position for months, with political appointees. The DOJ’s request to change lawyers on the case must be approved by the court and the plaintiffs are fighting the move.