What the Supreme Court's Census Decision Means (ep. 52)

June 27, 2019
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In one of the most highly anticipated decisions of its term, the Supreme Court ruled that the Trump administration cannot add a citizenship question to the U.S. census ­– at least not for now. Dale Ho, director of the ACLU’s Voting Rights Project, who argued the case, explains the decision.

EMERSON SYKES:
[00:00:04] From the ACLU, this is At Liberty. I’m Emerson Sykes, a staff attorney here at the ACLU and your host.

In one of the most highly anticipated decisions of its term, the Supreme Court just ruled that the Trump administration cannot add a citizenship question to the US Census--at least not for now. We're here with Dale Ho, the ACLU lawyer who argued the case, to walk us through this victory. Dale, welcome back to At Liberty.

DALE HO:
Thank you so much.

EMERSON:
So remind us why this case is so important.

DALE:
Sure. This case is about the census. The Constitution requires a complete count of every living person in the United States every 10 years. It's a pillar of our representative democracy. You can't have government by the people, of the people, for the people, unless you know how many people there are and where they live. This question was designed to wreck that count, to deprive communities of color, and immigrant communities, of the representation to which they're entitled under the Constitution. We sued and we succeeded today in preventing the administration's plans.

EMERSON
So what exactly did the Court decide today?

DALE
Today the Court decided that the administration's decision violated the Federal Administrative Procedure Act because the reason for the decision was, in the Court's words, contrived. The Trump administration claimed that they added the question because they needed it to better enforce the Voting Rights Act. And Chief Justice Roberts, writing for a majority, basically called that bluff, said, “We see you. We know that this is not why you're adding this question, and federal law requires you to be honest about the reasons for the decisions that you're making. You weren't honest here. So your decision is invalid.”

EMERSON
Well, it's quite noteworthy, right? I mean it's a long decision, it's a complicated decision, there are concurrences in part and--

DALE
[00:02:01] Yeah

EMERSON
--And dissents in part but that last point, the point on which we got this major victory, is quite notable, right? That they actually said, the government, “We don't believe the argument that you're making in front of us.:

DALE
That's right. I think it's, it's pretty unusual, I think, generally to get a federal court to look behind what the government says it's doing and examine whether or not the story adds up. I think a lot of people thought that the Supreme Court, as conservative as it is, wouldn't be willing to do that here. And you know, I'd love to pat us on the back and say we were these amazing lawyers who won this extremely difficult case. And, and I do think we have an amazing team and that it was a hard case, so I don't want to take away anything from the folks on the team. But the truth is we had a great record. The administration did a lot for us because their story is so facially implausible. I mean adding this question, the Census Bureau estimates, will cost $121 million. Anyone who thinks that the Trump administration wants to spend that much money so that they can enforce the Voting Rights Act, I want to play poker with that person.

EMERSON
Well and not only will it cost the government a huge amount of money, it would also remove a huge number of people from the census and have all sorts of impacts on our democracy.

DALE
Right. That's ultimately at the end of the day why we cared so much about the case. Our expert witnesses on the case ran the numbers and based on the Census Bureau's own estimate as to the effect of the question, our experts concluded that California would almost certainly lose a seat in Congress, and that New York, Texas, Florida, Arizona, and Illinois were also at very high risk of losing representation, and that even within states, the effect of the question would be to drain political representation from immigrant communities, communities of color, largely in urban areas, and redirect it to rural, whiter areas.

[00:03:56] And what's amazing is that after the argument in the Supreme Court, we found documents indicating that that was the game plan all along, right? That adding the question would, in the words of a longtime Republican redistricting strategist, be, quote, “advantageous to Republicans and non-Hispanic whites.” That man, wrote a paragraph purporting to justify the question on Voting Rights Act enforcement grounds and it ended up word-for-word, verbatim, in the Department of Justice's first draft of a letter requesting that question, so we know exactly why they wanted to do it.

EMERSON
Well, it's quite extraordinary. The opinion is long and complicated. I think everybody's first reaction upon reading it was that it was “Hm,I'm not quite sure what's going on here.” It seems as though the justices really wanted to give the government the benefit of the doubt, and in many ways they went out of their way to say, “We fully trust the government in normal circumstances to do this kind of thing. But here what they've done is just so obviously ridiculous.”

DALE:
Yes, so I'll confess I was among those people who was initially confused. I mean, I looked at the opinion, I looked at the lineup, I saw that the four liberal justices had dissented from part of the opinion. I saw that the first few points in the summary were that the government was justified. There was evidence here, you know, to support the Government's decision. And I was like, “We lost, we lost. Let me just skip to the end to see what the bottom line is here.”

And then, I skipped to the end and it didn't comport with my first read. And I was like, “Wait a minute what am I reading, am I reading someone else? Am I reading the dissent? What's going on here?” and I like kept scrolling back and forth, and then I looked and I saw that the Court found that there was evidence to support a decision along these lines. But that the government's stated reason was quote “contrived” and set it aside. And once I saw that I was I mean, at first, I couldn't believe it because I had so conditioned myself to brace for impact, so to speak, and be kind of emotionally prepared for an adverse ruling but--

EMERSON
[00:06:03] Especially coming on the heels of the gerrymandering cases--

DALE
Yeah
.
EMERSON
Which we’ll be covering in another episode.

DALE
And also all the conventional wisdom. I mean it's kind of hard to block all of that out and just think about what you know about the merits of the case.

EMERSON
Well, the decision itself is hard enough to make sense of, but I think now we have come to the conclusion that, you know, it was a victory as much as the Supreme Court said, “We don't believe what the government is saying and...” What happens next?

DALE
Well, I think it's an unequivocal victory. At first I was a little nervous, candidly, about coming out and saying that, but the more I sort of looked at the opinion and thought about it, you know, people are asking, “What does it mean to block the question for now?”

Well, it really is no different from any other case that's under the statute that we brought our case under, the Federal Administrative Procedure Act. That's a statute that requires federal agencies to make decisions in a particular way. If they don't make the decision in accordance with proper procedure, it gets sent back to the agency. The agency can always, when their decisions are challenged under the APA and fall, try to engage in a proper decision making process, and if they arrive at the same decision point at the end, then maybe that would pass muster.

So what the Court has done here by saying that this decision gets sent back to the agency, it's not remarkable or any different from any other case that's brought under this statute. If they follow proper decision making processes, maybe they have a valid decision here. But I think how irregular this process was just tells you how difficult it would be, if you engaged in proper decision making processes, to arrive at the end point that they did. And now we have time pressure. The administration has said over and over again, “We’ve got to start printing these forms Monday, July 1st.” Well right now they're under a court order that prevents them from doing so with the citizenship question. If they're true to their word, and they start printing the forms on Monday, they won't have a citizenship question on them and game over.

EMERSON
[00:08:05] Wow. And you mentioned all, sort of, the other proceedings that are happening. Is there anything we need to keep in mind in terms of other courts and their decisions?

DALE
Yeah. There is ongoing proceedings in a District Court in Maryland about whether or not the decision to add the question was made with discriminatory intent. You know, looked at one way, those proceedings might be unnecessary now because there is no citizenship question. But you look at it another way, I could see the District Court saying, “You know what, just so that everything is clear and that every claim is fully explored, given the uncertainties of time, and, and how things might develop in the future, I want to resolve this issue now” and may in fact keep going.

We also have a sanctions motion in the New York court where the trial was held that’s-- has some briefing due in two weeks. You know we discovered, based on those new documents, that at least one government witness, the Secretary's chief advisor on census issues, testified falsely in a number of respects in deposition in this case. And so we've moved for sanctions against the government and against him personally. So even if the administration gives up at this point, this is not over. The truth that they've sought to conceal from the beginning needs to come out, and people need to be held accountable for misrepresenting the truth to the public.

EMERSON
Can you give us a clear picture of what exactly the government needs to do to remedy whatever the deficiencies were? I mean it was interesting because the Court actually said, “You have the right to make this decision and you had the evidence to base it upon. It's just the memo you wrote doesn't make any sense.”

DALE
Right.

EMERSON
Can they just rewrite the memo and if so, how long does that take?

DALE
[00:09:42] I think that would be pretty hard. Under normal circumstances that takes a long time, first of all, and they don't really have that time here. I mean, you know, to be honest, preparations for the 2030 Census are already underway, right now. So, but leave all that aside, what the Court said is, “There is evidence to support adding this question for Voting Rights Act enforcement purposes. But that's not your reason for doing it.” So they can't rely on that evidence moving forward in the future to support some other reason for wanting to put the citizenship question on there. So, if they really cared about VRA enforcement, ok maybe. Right, but we know they don't. They haven't filed a single case under the Voting Rights Act. George W. Bush, in his first term, filed five. Okay? So this administration has no interest in enforcing the Voting Rights Act.

And what's amazing is they've said from the beginning, “That's the only reason that we're doing this,” right? So for them to like do a 180 on Monday and be like “Okay, okay, okay, okay, actually, here's the other reason why we did.” I mean that’s not going to have any credibility in court.

EMERSON
So at this point we're willing to say there's no chance that this census question is getting on this-- this round of the Census?

DALE
In a sane rational world, dealing with an administration that was approximating normalcy--

EMERSON
Well, then you gotta stop right there

DALE
--Then I would say no, no, it would be impossible. But look, this administration won't give toothbrushes to children at the border. Okay? So, so we know that this administration has what I'll call a loose relationship with the rule of law, right? I think under normal circumstances this should be the end of the road. But we'll be watching them.

EMERSON
Well, I don't doubt it. Dale Ho, congratulations to you and your team, and thanks very much for taking the time to speak with us on this hectic day.

DALE
Thanks, Emerson.

EMERSON
Thanks very much for listening to At Liberty -- which turns one year old today. We’ve got lots of exciting plans for the coming year, so make sure you subscribe and give us feedback. We want to hear from you.

‘Til next week, peace.

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