Administration Drops All Pretenses About Citizenship Question
“[I]nformation [on citizenship] is also relevant to administering our elections. Some states may want to draw state and local legislative districts based upon the voter-eligible population.” In two sentences, Donald Trump, in a Rose Garden press conference about ending the Administration’s pursuit of a citizenship question on the 2020 Census, confirmed to the nation his intention to undermine the country’s representative democracy.
For proponents of a 2020 Census free of a citizenship question, the July 11th press conference was a victory. The Administration decided to end its efforts to add a citizenship question to next year’s census, citing the lengthy litigation that would arise and a desire to execute the census on time. Experts have warned for over a year that a citizenship question would severely depress response rates to the census in hard-to-count communities and affect all the variables dependent on its outcome, including congressional reapportionment—the reallocation of congressional seats. This announcement was, without question, a positive outcome for every census stakeholder and U.S. resident.
Never one to go quietly, Trump packaged the census decision into a larger announcement about an executive order directing every federal agency to share information about citizens and non-citizens with the Department of Commerce to produce a more complete understanding of how many citizens and non-citizens are living in America. The information will be used to affect public policy, and the policy area Trump honed in on in his remarks was state redistricting efforts, which rely on census data and are generally left to state legislatures to execute.
It is necessary to note the executive order does not instate new laws or policies. All the order does is reiterate policies already on the books, and suggests the Administration will double down on enforcement of the policy. In fact, this option was presented to Trump as a way of collating and using citizen and non-citizen information before a citizenship question was ever publicly proposed. All that aside, this move is indicative of the time, effort, and investment the Administration continues to make to ostracize individuals they do not want participating in any part of democracy.
Following Trump’s remarks, Attorney General William Barr stepped up to the podium to reinforce what had been said, and to hammer home the point that citizenship data would drive many policy decisions. Like Trump, Barr focused on the electoral policy as the area to be impacted.
“[T]There are a number of components to examine to understand Barr’s statement. Foremost, his reference to a dispute about counting non-citizens in the reapportionment process is a dispute of the Administration’s own creation. As was noted last week, undermining the reapportionment process and, therefore, the equal representation will serve the Administration’s goal of institutionalizing bigotry through policy. It is accepted that reapportionment of congressional seats is spelled out in the 14th Amendment to account for the total population, not just the citizen population. This is not expected to change.
What could develop into an actual dispute is how states decide to redistrict based on the next round of reapportionment. In short, after the census is executed, the 435 U.S. House seats—a number that has not changed since the 1920s—will be reallocated to states based on changes to their populations. Some states will lose congressional seats, and others will gain seats.
Redistricting is a state-managed process that uses the number of seats allocated by reapportionment to redraw congressional districts that are roughly equal in population and to redraw state districts that are also equal in population. In most cases, state legislatures or their appointees are in charge of redrawing both congressional and state districts.
What Trump and Barr are likely relying on and studying is the less defined process for how states must redraw their district lines. Past Supreme Court decisions, and most recently in the 2015 case of Evenwel v. Abbott, have affirmed states’ rights to use total population in state redistricting but did not prescribe a formula for how redistricting must happen. While the cases heard by the Court have dealt with state-level districts and not congressional districts, the door is left open to both allow for the usage of a subset of the total population to drive redistricting and to make an argument that congressional districts are also eligible to be redrawn using a population subset.
In issuing an executive order, the Administration is attempting to answer a longstanding pragmatic criticism of using citizenship data to redistrict: how can states be certain citizenship data is accurate enough to adequately guide redistricting? The agency data-sharing Trump is reinforcing is intended to, theoretically, produce a more accurate picture of citizenship in the country. Whether or not that is the actual result is another matter, but it produces a potentially defensible illusion of accuracy that can be devastating to equal representation if states use this collated citizenship data to produce a population subset for redistricting.
Despite the Administration’s focused rhetoric on non-citizens, what is vital to the master plan is an accurate count of citizens because that information is what their redistricting plans rely on. If the Trump administration gets its way, the number of Republican districts will grow exponentially as rural districts, which are generally conservative and less likely to be home to non-citizens, gain more seats and power. In addition to using citizenship numbers to draw districts, partisan gerrymandering will certainly play a role in securing more Republican districts in states under Republican control, especially after the Court’s recent decision in Rucho v. Common Cause and Lamone v. Benisek to refrain from interfering in political gerrymanders. With Republicans in control of more elected offices, the Administration’s bigoted agenda will be far easier to incorporate.
That said, their agenda is already being enacted in a piecemeal fashion, and the impact is clear on targeted and adjacent communities. From the Muslim Ban to ICE raids that have increased in frequency and aggression, to anti-immigration policies that have created the U.S. operated concentration camps, this agenda is harming communities daily.
These policies and others like them will escalate as the Administration garners more support in the form of elected officials in their party who refuse to stand up to defend American values. In a truly abhorrent sign of what the future may hold, Congressional Republicans have not spoken up to condemn Trump’s racist attacks on four female congresswomen of color that he told to “go back” to where they came from this week.
Undoubtedly, Trump’s attacks on the lawmakers are intended to make an impression on both them and the communities they identify with. His years of attacks on black and brown communities, religious minorities, non-citizens, immigrants, disabled people, and more, were met with a wave of motivation that elected representatives from those communities in 2018.
For the first time, many people saw someone who looks like them in the halls of Congress. Trump knows people see themselves in these representatives, which is why, when he attacks them, he knows it strikes a chord within their admirers and sends a message that no one is safe from his abuses. The constant fear-mongering and hatred are taking a toll on communities that impacts mental health, people’s behavior, and the economy. How this will play out when it comes time to fill out the census and to participate in next year’s election is yet to be seen, but there is hope that another wave of motivation will sweep in candidates who care about truly representing their districts and who will support pro-democracy reforms to protect the system from future demagogues.
Ultimately, using existing agency citizenship data was a Plan B for the Administration. Plan A was the use of a citizenship question on the census because a full count of citizens is more likely to occur that way than it is by using agency data. Trump has not given up on the dream of having a citizenship question on the census, though. In addition to the data-sharing directive, his executive order instructed the Commerce Secretary to “consider initiating any administrative process necessary” to ensure a citizenship question on the 2030 Census. This is important because the Supreme Court denied the question’s addition based on faulty evidence in a challenge to the Administrative Procedure Act. The executive order’s instruction is a clear example of a lesson learned because it tells the Commerce Department to find a viable explanation for the question, and to start a paper-trail now that supports their claim, something they did not have in Commerce v. New York.
After all this, one thing is clear: the goal of a citizenship question is to impact redistricting and initiate a domino effect that will put more power into the hands of Trump and the Republican Party. Prior to conceding defeat in the 2020 Census battle, the Administration made efforts to distract from their true intentions. Now, with all pretenses dropped, the fight for a fair, free, representative democracy is out in the open. The open threat means no one can pretend they are unaware of the perils this country is facing, and everyone must be ready to meet it with determination to call out all threats to equal representation and to protect democracy.
Heba Mohammad is a National Field Coordinator at the Arab American Institute