“Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.” –Justice T. Stanley Matthews, 1886
An intense debate in Washington could have a direct impact on Vineyarders when they respond to the 10-year census next year. The question is this: Should the census form include a question about whether the respondent is a citizen of the U.S.?
The Constitution requires that the federal government count all the people, regardless of citizenship, residing in the United States every decade. The reason for this count is to divide the states as equally as possible into congressional districts. States then use the results to create state legislative districts, and states in turn receive federal funds based on their populations.
The Constitution does not address “citizens,” only “persons,” as those who must be counted. In other words, federal and state representatives speak for all the people living here, not just citizens. The Supreme Court will decide by the end of June whether Secretary of Commerce Wilbur Ross may add a question about citizenship, because the government must print the forms this July.
The government argues that there is nothing new about adding a citizenship question; after all, it was on census forms from 1820 until 1950, and on a few later forms until 1960. According to Ross, the issue arose only after the Justice Department requested that the forms include the question so that the Voting Rights Act of 1965 could be better enforced to avoid minority discrimination in elections.
Eighteen states, including Massachusetts, 16 municipalities, and the U.S. Conference of Mayors challenged Ross’ decision to add the question. They stand to lose seats in the House of Representatives and billions of dollars of federal funding if their states are undercounted.
Written and oral arguments on April 23, however, clearly demonstrated that the secretary fabricated his argument. It began with his own idea in consultation with an extreme anti-immigrant politician, Kris Kobach, the Kansas secretary of state. Throughout all of 2017, Ross demanded that the Census Bureau include the question. The statisticians at the bureau investigated its effects, and in January 2018 the chief scientist determined that its inclusion would depress the response rate of undocumented immigrants and Hispanics.
Evidence shows that Ross’ claim that the original request came from the Justice Department was a sham. The facts show that he demanded Justice send him the request to add the question, which is the opposite of the way he characterized it. The parties challenging the secretary’s decision put it this way: His “misleading account was troubling not only for its falsity but also for its strong suggestion that his stated rationale — to help Justice enforce the Voting Rights Act — was manufactured to cover a decision that he had already made before he reached out to the Justice Department.”
We can draw only one conclusion from this debate. The secretary of Commerce has a devious reason for wanting to add the question. His own experts in the Census Bureau warned against it because undocumented immigrants and Hispanics may well decline to respond at all. There is evidence that the Trump administration’s policies are to keep out or reduce the numbers of people of non-European origin, from the attempts to build a wall along the southern border to the travel ban on people from Muslim-majority countries.
Wilbur Ross is playing into this game: If undocumented immigrants, who by the way must be counted but may not vote, and Hispanics are left out of the census, the dividend will be to add representatives from states that support the administration.
The Vineyard has the luxury of having many South American and perhaps undocumented immigrants residing here. They contribute greatly to its cultural richness and singular diversity. They, like everyone living here, must be counted. And they must not be discouraged from doing so.
Observers of the oral argument before the court predict that by a bare majority of 5 to 4, the conservatives will allow Ross to add the question. But oral arguments, with their back-and-forth and give-and-take questions and comments, do not always pan out the way they first appear. The justices will discuss this issue in a freewheeling conference with no other people in attendance, and then they will pass draft opinions back and forth until a majority is reached. So we won’t know until they ultimately release the decision.
Sure, on its face, the addition of a question concerning citizenship appears neutral and even reasonable. But, as Justice Matthews noted long ago — some 133 years ago — even when the law or, in this case, policy appears fair and impartial, if it is administered with “an evil eye and unequal hand,” it cannot pass constitutional muster. Nor should it.
Jack Fruchtman, an Aquinnah seasonal resident, teaches constitutional law and politics at Maryland’s Towson University.