The White House has repeatedly threatened or reserved the right to use executive privilege to protect documents and Trump administration officials from House Democrats’ investigations. But on Wednesday, it actually asserted it.
And the subject on which it has been invoked — the census — is a sleeping giant of a potential scandal.
Ever since the Trump administration moved last year to add a citizenship question to the 2020 Census, questions have been asked about the true motivation. The stated reason is that it is needed to enforce the Voting Rights Act, but that has never been a huge point of emphasis for the Republican Party. Indeed, GOP officials have actually worked to dismantle the VRA in recent years.
And as we’ve found out over the last few months, there are real reasons to doubt those initial explanations. Exactly where the idea to add the question came from has been obscured, including apparently by Commerce Secretary Wilbur Ross, and now evidence exists that its earliest proponents may have had other, very political motivations.
The problem with the census kerfuffle is that it, well, involves the census. The second problem is that it involves gerrymandering and complex calculations that even most people inside political circles in Washington don’t fully understand. You layer those two things on top of one another, and it’s a recipe for people’s eyes glazing over.
But, the inclusion of a citizenship question is the kind of thing that could be used to cement the GOP’s already very strong advantage when it comes to the composition of the districts we use to elect our representatives. And that’s a system the GOP has already gamed to great effect. Given the GOP’s existing advantages, some have wagered that the Democrats would never be able to win back the House until they can win power in key states and redraw some of the maps. Those suggestions proved wrong in 2018, but Democrats’ hold on the House is and will be tenuous, at best, for the foreseeable future.
(My favorite stat on this: The median House district voted for Trump by more than three points in 2016, even though he lost the popular vote by two points — a more than five-point difference. All Republicans need to do to lock down the House is win territory where they are clearly favored; Democrats have no such luxury.)
What adding a citizenship question would potentially do for Republicans is twofold: 1) It could dissuade undocumented immigrants from responding (for fear of disclosing their status to the government), which would dilute their representation and transfer it to areas that are more likely to be Republican-leaning. And 2) It would give Republicans a potential game-changing tool to rejigger maps in the future. The GOP would very much like to draw maps according to citizen voting-age population, rather than total population, because that benefits more rural areas. That’s questionable from a constitutional standpoint, but without a citizenship question to give it the data it would need, Republicans can’t even really attempt it.
Which is where the story starts getting interesting. Two weeks ago, we learned that the daughter of a recently deceased Republican redistricting guru, Thomas Hofeller, had been sorting through his files and discovered evidence that he was more involved in this process than we believed. That’s significant, because this same consultant had also conducted a 2015 study showing the political benefit Republicans could glean from drawing districts according to citizen voting-age population.
The revelation is not a smoking gun; Hofeller was ubiquitous when it came to this kind of thing — I spoke with him frequently while reporting on redistricting early in this decade — and the idea that he would be involved in some fashion on such a topic in a Republican administration makes complete sense.
The issue is whether his lobbying for this change and apparent involvement in drafting the Justice Department’s VRA justification obscured what really happened behind closed doors. If he or anyone else was pitching this to any part of the administration as a way for Republicans to gain politically, that’s hugely significant. And intriguingly, plaintiffs in a federal-court case say the structure of the Justice Department request for the citizenship question mirrors Hofeller’s 2015 study.
Via the New York Times:
The second instance involves the official version of the Justice Department’s request for a citizenship question, a longer and more detailed letter sent to the Census Bureau in December 2017. That letter presents nuanced and technical arguments that current citizenship data falls short of Voting Rights Act requirements — arguments that the plaintiffs say are presented in exactly the same order, and sometimes with identical descriptions like “building blocks” — as in Mr. Hofeller’s 2015 study.
There are also other reasons to be suspicious. Ross, whose department oversees the census, testified in March 2018 that the Justice Department “initiated the request for inclusion of the citizenship question.” Emails released later, though, showed that he himself had pushed for its inclusion as early as May 2017 — seven months before the Justice Department’s formal request. And Ross, in that May 2017 email, referred to “my months old request that we include the citizenship question.” The Washington Post’s Fact Checker gave Ross four Pinocchios . . . for his sworn testimony.
Exactly how this situation might come to a head is the question. Despite lower courts blocking the use of the citizenship question, the Supreme Court in oral arguments sounded as though it favored the administration. It is expected to issue its ruling by the end of the month.
Assuming it upholds the question, it’s up to House Democrats to press the case — including by applying pressure on the administration and winning legal battles over access to documents and officials such as Ross, whom Democrats are threatening to hold in contempt, along with Attorney General William P. Barr.
Wednesday’s maneuvering was a major development in that ongoing battle. It’s worth tuning in for the rest of it.