“Lying” is a strong word. Many falsehoods are based on mistakes, confusion, carelessness, wishful thinking, too thus on. But today’s province of affairs puts me inwards heed of an evidentiary pattern that arises constantly inwards job discrimination law: The plaintiff thinks something nefarious has occurred, but has no similar a shot proof; the accused offers a legitimate, non-discriminatory ground for the disputed action; all the plaintiff can show is that the proffered ground is false. It’s then, ordinarily, upwards to the jury to course of didactics out what actually happened. But the fact that the accused offered upwards a ground that was definitely imitation is significant. It raises a potential (contestable) inference that it may receive got been a lie, roofing upwards something the accused could non admit.
My sole aim inwards this post is to explicate why the government’s stated ground for adding the citizenship inquiry is false. To sympathise this, you lot necessitate to sympathise something most the purpose Census information plays inwards redistricting. It plays ii completely unlike roles.
I.
At the bottom of our constabulary of redistricting, since the reapportionment revolution of the 1960s, nosotros receive got the foundational regulation of one-person-one-vote: Each district must receive got the same population. The United States of America Constitution requires that “Representatives shall move apportioned with the several States according to their respective numbers, counting the whole number of persons inwards each State.” Crucially, it says “whole number of persons,” non citizens. To brand certain each Earth gets the correct number of representatives, too and thus later on that, to depict district lines inside states, nosotros necessitate a count of all persons, too it needs to move exact. For this, nosotros job the Census.
II.
The Voting Rights Act, Section 2, prohibits racial vote dilution, which is drawing maps where members of 1 racial grouping receive got less of an chance than others to “elect representatives of their choice.” This is a much richer too messier concept than equalizing district populations. To just about extent it involves predicting election outcomes. We must inquire questions such as: Is voting racially polarized, thus that white voters vote every bit a bloc to defeat the representatives minority voters choose? (Section 2 is triggered alone when the response is yes.) We necessitate to analyze degrees of racial polarization, rates of voter eligibility, registration, turnout, too other factors, inwards fellowship to decide whether a given district is 1 where a given minority grouping of voters will, inwards fact, move able to “elect representatives of their choice.” No unmarried information root volition always render all of the information most all of those factors. Many of them—turnout, for instance—are epistemically impossible to predict with anything similar the marker of precision that is involved inwards one-person-one-vote. That is ok. The destination is non to boom a perfect prediction of an election outcome, which would move impossible. It’s just to decide whether or non a district gives minority voters an chance to elect their candidates.
We job citizenship information every bit purpose of the Section 2 analysis. Why? Because it’s 1 slice of information that helps predict the hereafter resultant of an election inwards the district. Suppose a district is racially polarized, with Hispanic voters voting 1 agency too white voters a unlike way. Now suppose the Hispanic purpose of the district has to a greater extent than children, to a greater extent than non-citizens, a lower charge per unit of measurement of registration with the citizens, too lower turnout with the registered voters. In that case, you lot mightiness necessitate to depict a district that was good over 50% Hispanic, inwards full population, inwards fellowship to larn far genuinely a district where Hispanic voters could elect a representative of their choice. We job citizenship information from the annual American Communities Survey (ACS) to calculate the citizen voting historic menses population (CVAP), every bit an of import middle footstep inwards this calculus. Just how high a CVAP produce nosotros need? This is inexact; it depends on the predicted size of gaps inwards registration too turnout betwixt the Hispanic voters too the white voters.
The American Communities Survey (ACS) information is perfectly adequate for Section 2 analysis. It’s truthful that this information is non every bit granular every bit census data. It’s non every bit precise. But it doesn’t necessitate to be. When nosotros are doing Section 2 analysis, what nosotros necessitate is to predict whether a district gives a minority grouping a proficient peril of winning—a inquiry that is necessarily approximate. ACS citizenship information is non perfect, but it’s far to a greater extent than accurate than our powerfulness to predict differences inwards voter registration too turnout inwards the hereafter over a decade. Thus, tightening upwards the precision of the citizenship data, which is what the DOJ argues volition move gained past times moving the citizenship inquiry to the Census, is non inwards fact going to materially ameliorate our powerfulness to say which districts are ability-to-elect districts too which are not.
That is why no DOJ official, including political appointees of both parties, from the inception of the enforcement of Section 2, had always called for adding a citizenship inquiry to the basic Census form, earlier the electrical flow Justice Department called for it. This footstep only is non going to materially ameliorate our powerfulness to enforce Section 2.
What introducing the citizenship inquiry volition produce is screw upwards the basic count inwards predictable ways. This will, on net, brand Section 2 calculations less accurate. It volition growth the nonresponse charge per unit of measurement inwards an uneven way, producing a less accurate film of where the people are, non alone non-citizens but besides citizens. This is probable to receive got existent effects on he distribution of representation too political power.* The management knows that a lot of mixed-status families (households with just about citizens too just about non-citizens), for instance, may spend upwards to response the Census at all, too although Wilbur Ross have argued on this weblog before) that much of the indicate of this procedure may move to educate the adjacent iteration of the Evenwel case—the attempt past times just about Republicans to alter the set down of representation, at to the lowest degree at the Earth level, thus that alone citizens count, non all persons.
As I hash out in this essay, the United States of America Constitution casts a long shadow over that argument. I am non at all certain that a authorities that does non fifty-fifty purport to correspond all the people is consistent with our constitutional design. But that is the adjacent fight. For today, without knowing the precise combination of reasons why the authorities is doing what it is doing, I only desire to larn far every bit clear every bit possible, for the record, for journalists, too for anyone trying to sympathise this somewhat intricate issue, that the government’s claim that adding a citizenship inquiry volition assist Section 2 enforcement is false. The claim does non concur up. It is a pretext.
*I edited the get-go sentences of this paragraph inwards response to an electronic mail from Justin Levitt.
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