Could partisanship become justification for Census query?

READING BETWEEN THE lines of two blockbuster Supreme Court rulings this summer, it’s easy to guess what the Trump administration’s next move might be to try to put a citizenship question on the 2020 US Census.

Chief Justice John Roberts and the court’s majority closed one door, ruling that the Trump administration’s rationale for a citizenship question was pretext or “more of a distraction” from the real motive. At nearly the same time, they opened another when Roberts wrote in a separate decision that partisan gerrymandering shouldn’t be overturned by the federal courts.

Partisan gerrymandering – the drawing of legislative districts to the benefit of the mapmaker’s political party – has long been presumed to be at least part of the reason why the Trump administration wanted to ask people if they are US citizens through the Census. One theory goes that asking such a question would make unauthorized immigrants fearful of participating in what is supposed to be a neutral survey of who lives where in America. Depressing the participation of unauthorized immigrants would lower the tally for urban areas, where many live and tend to favor Democrats, diminishing their representation in Congress and state legislatures. A similar result could be achieved if states hypothetically used the Census data to draw districts based on the number of citizens rather than the total population.

To drop the pretext and tell the federal courts that the Trump administration wants to alter the Census to help Republicans would be a brazen power-grab. But who at this point would rule out a brazen power-grab by President Trump? The president and his administration have previously mingled political priorities with official government actions on an enormous scale. Look no further than Trump’s decision to send thousands of troops to the southern border ahead of last fall’s election. Or the big shrug the administration gave to top adviser Kellyanne Conway’s alleged violations of the law designed to prevent government officials from engaging in politics in their official capacities.

Attorney General Bill Barr sees some sort of an opening to put the citizenship question on the Census, but he hasn’t yet said what it is.

“The president is right on the legal grounds. I felt the Supreme Court decision was wrong, but it also made clear that the question was a perfectly legal question to ask, but the record had to be clarified,” Barr said in South Carolina on Monday. The administration will “reach a new decision,” Barr said, even if that means jettisoning the lawyers currently on the case.

A day after Barr’s comments, Judge Jesse Furman blocked the Justice Department from replacing the lawyers on the Census case, but that’s not the administration’s only avenue.

Trump on Friday told reporters he was considering using an executive order to put the citizenship question on the Census, perhaps as an addendum. That move would presumably trigger another legal fight, but that one might not have the same procedural baggage as the ongoing slog where the Justice Department tried and failed to replace its lawyers.

The president last week acknowledged that one reason he wants the citizenship question on the Census is because of the ramifications for redistricting.

“Number one, you need it for Congress — you need it for Congress for districting,” Trump said. “You need it for appropriations — where are the funds going? How many people are there? Are they citizens? Are they not citizens? You need it for many reasons.”

The high court decision legalizing partisan gerrymandering did not completely dismantle the guardrails, and left open the possibility of federal court intervention in the case of “excessive” partisan gerrymandering.

“Our conclusion does not condone excessive partisan gerrymandering,” Roberts wrote. “Nor does our conclusion condemn complaints about districting to echo into a void. The States, for example, are actively addressing the issue on a number of fronts.”

The Census, which is conducted by the federal government, is distinct in many ways from redistricting, which is under the jurisdiction of the states and is more directly concerned with the distribution of political power. Still, now that the Supreme Court has sanctioned partisan redistricting, it’s worth watching to see whether the Trump administration will use the court’s permissive stance towards political motivations as it crafts new arguments for placing a citizenship question on the Census.

In Massachusetts, the population relative to the rest of the country has fallen in recent decades, although officials have said they do not expect to lose another seat in Congress after the next Census. That would be a break from the overall trend. Massachusetts had 12 US reps in 1980, but that number has dropped to nine today.

Of the state’s estimated 6.9 million residents, around 500,000 are non-citizens, according to Secretary of State William Galvin. Around five years ago, the Bay State’s population of unauthorized immigrants numbered about 173,000, according to the Migration Policy Institute.