While we wait anxiously for the Supreme Court ruling on the North Carolina and Maryland redistricting cases, we are also expecting a consequential ruling on the question of whether the Trump administration can include a question on citizenship in the 2020 census.
The health of our representative democracy depends on nonpartisanship when drawing the lines that define the districts in the US House of Representatives and our State House. That, in turn, depends on an unbiased and comprehensive census to provide the data that underlies redistricting. This past week, compelling new evidence has emerged that the introduction of the citizenship question on the census has partisan intent.
The 2020 census has engendered a number of controversies, including questions about the adequacy of the budget. But the single most controversial issue and the one before the Supreme Court is the question of whether to include in the main census form a question about whether each individual counted is a United States citizen. The administration claims that the question is important for enforcing the 1965 Voting Rights Act. Critics claim that there is no useful purpose for the question and even the administration’s own research indicates that the fact of the question will reduce the response rate of Hispanic and Latinx Americans.
The impact of undercounting minority groups is well understood. It can affect how resources for population-based programs are allocated to localities. It can affect apportionment, shifting Congressional representatives away from states with undercounted populations toward other states. But a recent development in the news has drawn attention to another potential impact of the citizenship question: it could be used to further gerrymander district boundaries.
Thomas B. Hofeller was a consultant for the Republican party on redistricting. Among his notable achievements was the 2011 North Carolina Congressional map that was struck down due to racial gerrymandering and re-drawn in 2016. (It is the 2016 map that is the subject of the current Supreme Court gerrymandering case.) Hofeller died in 2018. His estranged daughter, Stephanie Hofeller, discovered computer hard drives and thumb drives with records of his redistricting activities, specifically, records relevant to the issue of the citizenship question on the 2020 census.
According to the New York Times, among the documents Stephanie Hofeller turned over to Common Cause and their attorneys—who are also pursuing a suit in New York against the inclusion of the citizenship question—are these:
- A 2015 study by Hofeller concluding that a citizenship question on the census was necessary to provide information that Republican-dominated legislatures could use to tilt gerrymandered district maps even more to the advantage of “Republicans and non-Hispanic whites.” The study was prompted by a Republican donor considering a suit in Texas to require that the Texas legislature consider only voting-age citizens when drawing districts, rather than the current practice of using total population. That suit went to the Supreme Court, which found that there was not such a requirement in the Constitution, but which did not rule out states choosing to use that criterion.
- A memo sent to the Justice Department, part of which was used word for word in a letter from the Justice Department to the Census Bureau recommending addition of the citizenship question as a way to support Voting Rights Act enforcement.
- A more detailed memo, significant portions of which were apparently used in the Justice Department memo supporting the Voting Rights Act justification for the citizenship question.
The Justice Department denies the accusation that their testimony was insincere, but the evidence from the disks and thumb drives has been presented to the Manhattan Federal District Court. The Supreme Court heard oral arguments about the citizenship question in April. From the transcripts, it was apparent that the conservative majority seemed ready to grant the administration request to include the citizenship question. It is not clear at this point what impact this new evidence will have on the Supreme Court ruling, but that ruling is due imminently. The Census Bureau says that printing of census forms must commence on July 1 in order to conduct a timely census.