Will Roberts Get Rolled on Census Case?
David Catron
by
C-Span/YouTube screenshot

Sometime during the next two weeks, the Supreme Court is expected to hand down its ruling on whether the Census Bureau may include a question in the 2020 census asking if the person filling out the form is a U.S. citizen. If you think that’s a sensible question to ask in a nation whose population swells every year with immigrants from all over the planet, that means you’re in step with 60 percent of registered voters. It does, however, put you at odds with the Democrats, various leftwing activist groups, and an Obama-appointed judge in New York. Enter SCOTUS.

The Supreme Court took up the case early this year and heard oral arguments on April 23. It’s always difficult to predict a SCOTUS ruling by analyzing the questions asked by the justices during these hearings, but most Court watchers came away with the impression that the “conservative majority” would rule in favor of the Trump Commerce department. At which point, the Democrats did what they always do when they fear they are about to lose a Supreme Court Case — they sought some way to intimidate Chief Justice John Roberts. The ACLU came to their rescue:

The ACLU asked the Supreme Court to wait until the fall to decide if it will reject or allow the Trump administration to add a citizenship question to the 2020 census. We requested the Supreme Court send the case to a lower court to consider new evidence showing the question was added for political purposes.

The “new evidence” consists of some information found on the hard drive of a Republican consultant named Thomas Hofeller. This fortuitous discovery allegedly shows that advisers to Commerce Secretary Wilbur Ross discussed the citizenship question with Hofeller and is thus inconsistent with the sworn testimony of department officials concerning the real purpose of the census question. Never mind that it isn’t unethical or unusual for political appointees to consult with outside experts. The idea is to make Chief Justice Roberts worry about appearances.

The Washington Post did its bit to support that effort in a Sunday article titled, “Chief justice assures the Supreme Court is apolitical. He’s facing his next big test.” The author, Robert Barnes, inevitably reminds us that Roberts admonished President Trump last fall for criticizing an “Obama judge.” Adopting his most schoolmarmish tone, the Chief Justice fumed, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.” Barnes suggests that Roberts will have failed to live up to his own prim standards if he doesn’t adopt the role of a centrist:

Roberts sits physically at the middle of the bench in the grand courtroom and now, for the first time since he joined the court in 2005, at the center of the court’s ideological spectrum. With the retirement of Justice Anthony M. Kennedy last summer, the most important justice on the Roberts Court became Roberts himself.

Barnes evidently believes that Roberts’ primary job as Chief Justice is to maintain an ideological balance rather than interpret the law and the Constitution. But opponents of a citizenship question will need to convince Roberts and the other justices that it would violate one or both. Indeed, the Commerce Department and the DOJ insist that the addition of the question to the census will augment enforcement of the Voting Rights Act. It asks nothing about the legal status of anyone, and it is by no means a novel idea. All of which leaves us with one unsolved mystery.

Why is this issue being raised only by Democrat-controlled states like New York? If such states are, as they claim, primarily concerned that the citizenship question will create so much fear among illegal immigrants that they will fail to respond to the census and cause their populations to be understated, this should be a bipartisan issue. There are obviously Republican-controlled states whose populations certainly include many undocumented aliens. One of the most obvious is Texas. And yet that state’s attorney general, Ken Paxton, defends the question in the Hill:

The citizenship question recurred multiple times from 1820 to 1890. And from 1890 to 1950, it appeared on every census. Since then, it has been included on every long-form census questionnaire from 1970 to 2000. To this day, the question is still asked on the American Community Survey, an annual supplement to the decennial census.

You will be shocked to discover that the difference involves political power. Edward Blum, a visiting fellow at the American Enterprise Institute, writes: “There is speculation that some red states will draw districts equalized on their citizen population, rather than their total population, thus disadvantaging Democrats.” The Constitution requires U.S. House districts to be drawn based on total population, but the door was left slightly ajar by SCOTUS regarding the possibility of districting based on the count of citizens in its 2016 Evenwel v. Abbott ruling.

Why? Because the “total population” requirement conflicts with the constitutional doctrine of “one-person, one-vote.” As Blum puts it, “Evenwel v. Abbott expanded their options to include equalizing for total population or citizen population. Equalizing for citizen population, rather than total population, will have the effect of giving eligible voters equality of electoral power.” If contiguous districts contain equal populations but widely divergent numbers of actual citizens, the district with the lowest number of citizens wields more electoral power per eligible voter.

That injustice can’t be fixed until SCOTUS allows the citizenship question to be included in the census. The Democrats and the ACLU will prevent that if possible. They know it will shift electoral power away from states like New York and toward states like Texas. The former is hemorrhaging genuine citizens due to high taxes and cost of living. And those people are moving to… well… Texas. If the Dems can’t win Department of Commerce v. New York on the merits, they’ll try to force John Roberts to roll over. Can the Chief Justice take the pressure this time?

David Catron
David Catron
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David Catron is a recovering health care consultant and frequent contributor to The American Spectator. You can follow him on Twitter at @Catronicus.
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