Trump’s census opponents warn the fight isn’t over

Advocacy groups are celebrating President Trump’s decision to give up adding a citizenship question to the 2020 census — but they aren’t letting their guard down just yet.

Trump’s concession handed his critics one of their biggest legal victories to date after judges, including the Supreme Court, repeatedly ruled against the question’s inclusion on next year’s census.

But those who fought Trump say their work isn’t done quite yet.

{mosads}The groups say they must make sure court orders blocking the citizenship question from the 2020 survey remain in place.

And they’re reviewing the executive order issued by Trump on other ways to collect citizenship data to ensure it won’t lead to discrimination against minority groups — particularly when it comes to drawing new legislative maps.

Advocates say the victory shows that they can successfully challenge Trump administration policies they deem discriminatory.

Sarah Brannon, the managing attorney of the American Civil Liberties Union’s Voting Rights Project, described the battle as “an extreme win” and “one of the more successful legal efforts to stop the president and his intentions that are so clearly geared at demonizing people in America who are not U.S. citizens, and demonizing people from certain races and certain parts of the world who come to America to live.”

But Brannon and other advocates fear some damage has already been done in terms of making sure minority populations are counted in next year’s census.

They fear many people will be confused over whether the citizenship question is on the census, even after the legal victory. That’s likely to lead some people to skip the census, which could lead to an undercount of immigrants and Hispanics.

“Making sure that traditionally undercounted communities participate in the census is always a concern. That concern has been exacerbated by the anti-immigrant statements that continually emanate from this administration,” said Denise Hulett, national senior counsel for the Mexican American Legal Defense and Educational Fund, which challenged the question in court.

“And yes, it was exacerbated by the administration’s attempt to add this citizenship question to the census unnecessarily,” she said.

Groups say they are focusing on getting the word out to immigrant communities that they will not be questioned about their citizenship on the census, and that they should fill out the form to make sure that their communities aren’t undercounted.

“They need meaningful reassurances from the government that, in fact, the information won’t be used for enforcement, deportation, other sorts of purposes,” said Michael Herz, a professor at Cardozo Law.

“How effectively can the Trump administration give that message?” he said. “Even if it’s true, I wouldn’t believe it if I was already nervous.”

{mossecondads}Civil rights organizations also are raising concerns about the executive order issued by Trump that requires federal agencies to hand over data on citizenship to the Commerce Department, instead of asking about it on the census. 

The Census Bureau originally recommended this step when officials first examined ways to determine how many citizens there are in the United States.

A federal statute blocks the Census Bureau from sharing personally identifiable data with other federal agencies or the general public. The bureau’s website also explains that the information it collects “cannot be used against respondents by any government agency or court.”

Brannon said that while she trusts career Census staffers, she’s wary of efforts stemming from other parts of the Trump administration that might want to get their hands on that data.

“I think we need to stay diligent to make sure that they are allowed to stay on course and protect the privacy of all the individuals whose data is going to be included in this additional transfer of administrative records to the Census Bureau,” Brannon said.

Advocates are even more concerned about the data being used to draw district maps for congressional and legislative seats. Those districts are currently based on total population data, but Trump’s executive order points to a 2016 Supreme Court decision that left unanswered the question of whether states could use other kinds of data to draw those maps.

The order says that because voting eligibility depends in part on citizenship, “states could more effectively exercise this option with a more accurate and complete count of the citizen population.”

The civil rights groups warn that using that kind of data — commonly known as Citizen Voting Age Population — to draw congressional districts could also disproportionately hurt immigrant communities, particularly Hispanics, and that they would likely challenge any efforts to do so in court.

The prospect that using such data would help Republicans and hurt Latinos and Democrats in redistricting was raised in files uncovered on the hard drives of the late GOP redistricting strategist Thomas Hofeller, who is alleged to have played a role in the orchestration of the citizenship question.

Hulett pointed to that evidence as a sign that some Republicans could seek to use that kind of data in drawing congressional districts, and effectively diminish the voting power of Hispanic communities in particular.

“Those are real impacts, and we have a high level of concern with it,” she said.

While Trump pointed to the Supreme Court’s ruling last month that federal courts cannot take on cases of partisan gerrymandering, both Brannon and Hulett said they believed this kind of redistricting is unlawful and could still be challenged in court. 

Brannon said that if states try to draw districts using that data, the American Civil Liberties Union (ACLU) “certainly will investigate their motivations, and investigate the circumstances under which those decisions were being made, and absolutely would pursue any indication that those decisions are being made on the basis of race.”

The civil rights groups are still overseeing legal battles on the citizenship question.

A federal judge in New York is hearing arguments on whether to sanction Trump officials over claims they made misrepresentations surrounding the citizenship question during depositions. The ACLU, one of the parties in the case, has indicated that they intend to move forward in the legal proceedings.

Another federal judge in Maryland was set to review whether there was a discriminatory intent behind the question’s inclusion on the census.

Hulett, whose group was one of the plaintiffs in Maryland, told The Hill that all of the parties — including the Justice Department — are in talks about drafting an order to present to the judge in the case, that would place a permanent injunction against the question’s inclusion on next year’s census.

Even further down the road is the possibility of a citizenship question making its way onto the next census, in 2030.

Chief Justice John Roberts wrote in the Supreme Court’s majority opinion that, while the Trump administration couldn’t add the citizenship question to the census using its initial “contrived” rationale — enforcing the Voting Rights Act — officials still had the authority to add such a question to the survey in the future.

Advocates told The Hill that they will keep an eye out for whether future administrations will try to get such a question on the survey down the line.

But Herz said this battle has effectively helped to create a path for officials to successfully get a citizenship question on a future census.

“It would take a rather stunning level of incompetence for another administration to be unable to add the question, if it wants to add the question,” Herz said.