March 27, 2018

March 27, 2018

The Commerce Departments’ dead-of-night announcement yesterday that the 2020 Census would ask people if they were American citizens is perhaps the most purely partisan ploy we’ve yet seen in this age of Republican hyper-partisanship. The sole purpose of the question is to intimidate immigrants, the foreign-born, and the undocumented from participating in the census at all—thereby undercounting those chiefly urban neighborhoods that are heavily Latino or Asian, which in turn would lead to a decennial redistricting with fewer Democratic districts.

(The Commerce Department insists that the change was prompted by the Justice Department’s desire for better data to enforce the Voting Rights Act. If you believe that that was the motivation of Jeff Sessions’s department, you’re a good candidate to buy not just the Brooklyn Bridge but Brooklyn itself.)

Within a couple of hours after Commerce’s announcement, California’s redoubtable attorney general, Xavier Becerra, announced he was filing a lawsuit seeking to block the use of the question. The Constitution, Becerra argues, requires the government to perform an “actual enumeration” of the population every ten years, and by deliberately undercounting a portion of the population by asking the citizenship question, the Census Bureau would be violating its constitutional mandate.

I’m no one’s legal eagle, but I suspect the Federal Circuit with jurisdiction over California—the Ninth Circuit—will likely side with Becerra. Once that case proceeds to the Supreme Court—which currently also has a major case on the constitutionality of gerrymandering before it—we’ll see just how Republican the five Republican justices on the court are feeling. The Janus case, which would decimate the public employee unions that are a key part of Democratic electoral efforts, was argued in the Court last month. A pro-Janus ruling, which the five GOPniks are expected to deliver, would constitute a veritable Son of Bush v. Gore ruling—that is, a purely partisan expression of Republicanism. A decision that the citizenship question is constitutional would be Son of Bush v. Gore on steroids. It remains to be seen just how Republican the Chief Justice—John Roberts, who has shown some concern for the Court’s reputation—is willing to be.