Originally Published in Slate
Mark Joseph Stern - January 15, 2021
The Trump administration’s final attempt to sabotage the census is dead. On Friday, the Justice Department told a federal judge that the Census Bureau would not release data on the number of undocumented immigrants living in each state before Jan. 20. NPR’s Hansi Lo Wang first reported the DOJ’s filing. Donald Trump intended to use this data for the apportionment of congressional seats among states; his plan, if successful, would have stripped seats in the House of Representatives from states with large undocumented communities. Trump’s political appointees tried to rush out this data before the president’s term ends, but the task proved impossible. Joe Biden is certain to undo the directive, ensuring that congressional seats will be apportioned based on the entire population of each state—as required by the Constitution.
Trump spent much of his term rigging the census to maximize the political power of white rural voters at the expense of immigrants, racial minorities, and city dwellers. He first sought to add a citizenship question, which would have produced a severe undercount of immigrants and Latinos. The Supreme Court blocked that question in 2018, finding that the administration illegally lied about its purpose when it claimed, absurdly, that gathering citizenship information was necessary to enforce the Voting Rights Act. Trump then asked his administration to compile data on undocumented immigrants using existing administrative records. In July 2020, he directed the Census Bureau to exclude these immigrants from the population count used to distribute congressional seats among states. If successful, this plan would strip seats, as well as votes in the Electoral College, from more diverse states like California.
Civil rights groups sued to block Trump’s directive, but the Supreme Court’s conservative majority dismissed their challenge as premature in December. Over the next month, the entire scheme collapsed. The Census Bureau blew past the Dec. 31 deadline for the apportionment data. Its director—Steven Dillingham, a Trump appointee—then tried to rush out the information before Jan. 20. Dillingham reportedly called this report the bureau’s “number one priority,” and deputy directors Nathaniel Cogley and Benjamin Overholt—both Trump appointees—pushed career employees to produce Trump’s report before the inauguration.
Whistleblowers at the Census Bureau revealed this last-minute scramble to Peggy E. Gustafson, the inspector general of the Commerce Department (which houses the bureau). In a scathing letter, Gustafson wrote that career employees have been given incomplete and faulty data on undocumented residents. Due to the compressed timeline, these employees were forced to forgo standard data quality checks. They were not given precise guidelines to determine who, precisely, counts as an undocumented immigrant. And they were obligated to use datasets from outside the bureau whose accuracy they could not verify. One whistleblower called the work “statistically indefensible.” (Congressional Democrats reacted to the letter by calling for Dillingham’s resignation or termination.)
On Wednesday, in response to Gustafson’s letter, Dillingham told the Census Bureau to halt work on the tabulation of undocumented immigrants. And on Friday, the Justice Department bowed to the inevitable, telling a federal judge that the bureau “will not be in position to finalize or provide apportionment data until many weeks after January 20, 2021.” (In other filings, the DOJ suggested that it could finalize the information by March 6 at the earliest.) Justice Department lawyers asked the judge to stay ongoing census litigation for 21 days. The move is effectively an admission that Trump’s project is doomed, and an acknowledgment that Biden is poised to formally kill it within weeks.
Trump’s inability to manipulate the census is one of his most remarkable failures. His attempt to add a citizenship question was foiled by lies, stupidity, and bad luck. While the case was pending at SCOTUS, documents emerged that proved the real purpose of the question was to create an advantage for “Republicans and non-Hispanic whites.” This revelation may have persuaded Chief Justice John Roberts to cast the fifth vote blocking the addition. The House Committee on Oversight and Reform later obtained more documents demonstrating that Trump’s operatives at the Justice Department lied under oath to conceal this racist goal. Federal courts also thwarted the administration’s plan to halt the census early in light of ample evidence that the count was incomplete. These rulings were eventually put on hold by the Supreme Court, but they added two final, crucial weeks to the census count. Now Trump’s ploy to strip House seats from diverse states—on the basis of inaccurate data—has collapsed in the twilight of his term.
Had Trump succeeded, he would have handed Republicans an unearned electoral advantage for the next 10 years. The citizenship question would have shifted representation from immigrant-rich communities, especially urban areas, toward white, rural regions by producing an undercount of Latinos, both documented and undocumented. Moreover, it may have provided states with the information necessary to exclude immigrants from the population when redrawing legislative and congressional districts. This method of redistricting would undermine the bedrock democratic principle of one person, one vote, and entrench the electoral power of Republicans until at least 2030. A competent administration probably could have achieved many of Trump’s census goals. The Supreme Court’s conservative justices seem favorable to a nativist overhaul of the process that diminishes representation for noncitizens. Trump’s appointees, however, got too tangled up in their own mendacity and ineptitude to get the job done. When the chief justice rejected the citizenship question, he sent administration officials a message: lie better next time. But these officials never figured out how to lie better, and they have now run out of time to learn.