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New Evidence of an Old Bias


In April, our blog discussed the controversies surrounding the U.S. Department of Commerce’s attempt to add a question regarding citizenship to the 2020 U.S. Census (see: “The Citizenship Question,” April 3, 2019). Commerce Secretary Wilbur Ross testified to Congress that the data from such a question was needed to help enforce the Voting Rights Act; many experts argued that a question asking about citizenship would dampen participation in the census, particularly among Hispanic and immigrant communities, and therefore lead to an inaccurate count of people in the U.S. Any questions that lead to inaccuracy are unconstitutional, goes the argument, since the constitution requires an accurate enumeration of the population—total population, not just citizens—every ten years.

Why is the accurate count of the U.S. population so important? The determination is the basis of political representation, which means that if certain demographics are undercounted, then they are under-represented as well. The census also determines how approximately $880 billion a year in federal tax dollars are spent for schools, roads and other public services. The fact that a question on citizenship status would disproportionately affect Hispanic and immigrant communities means that these communities would receive less critical investment as well.


The controversy above was litigated in seven lawsuits filed in various federal courts throughout the country. The addition of the question was blocked by the orders of three federal judges. Because the census forms must be printed starting in June-July of this year (that may be a soft deadline, with the hard deadline being in the fall of 2019), the government sought an expedited appeal of the case and the Supreme Court agreed to hear it without the case having to go through the Circuit courts first. Oral argument was heard on April 23, 2019, and the Supreme Court’s decision is expected any time now.

Enter the bombshell Hofeller evidence that came to light in a court document filed by the ACLU on May 30, 2019. Thomas Hofeller, who passed away in August of 2018, was a Republican strategist, consultant and mastermind of gerrymandering. He concluded a study in 2015 showing that a citizenship question on the 2020 census would create a structural electoral advantage for “Republicans and non-Hispanic whites.” Hofeller determined that adding the question: “Is this person a citizen of the U.S.?” would significantly reduce the political power of Latinx and immigrant communities. Hofeller then lobbied for the inclusion of the question on the 2020 census.

Hofeller argued for citing enforcement of the Voting Rights Act as the justification for addition of the question. His study was known to the people who testified before Congress, but neither Hofeller nor the study was ever mentioned in their testimony or introduced as evidence in the case. (Enforcement of the VRA was the justification used by the Commerce Department for their desire to add the citizenship question, and parts of Hofeller’s study appeared verbatim in the memoranda of the Commerce Department and the DOJ.) It was not until Hofeller’s estranged daughter was going through his estate and found the hard drives backing up his files that the documents made their way to lawyers representing the plaintiffs in the lawsuit over the citizenship question. A hearing was scheduled for Wednesday, June 5, 2019, before Judge Jesse Furman, a federal judge in New York City, to consider whether this new evidence can or should become part of the record, and whether sanctions can or should be imposed on either of the testifying witnesses. At the hearing, Judge Furman postponed his decision regarding the “serious” new evidence until after the Supreme Court issued its decision about adding the citizenship question to the 2020 census.


The Urban Institute released a report on June 5, 2019, about the probable impact of the inclusion of a question regarding citizenship on the 2020 census. Given that the intent of such a question was to suppress the participation of Hispanic and immigrant communities, it should come as no surprise that inclusion risks 4 million people being undercounted—4 million people of color.

The tragic truth is that the controversy over the citizenship question may have already done Hofeller’s bidding and produced a chilling effect on participation. Hispanic and immigrant communities may be afraid to answer the census no matter what the Supreme Court decides about whether the question: “”Is this person a citizen of the U.S.?” can appear on the census form. They may fear harassment regarding their status, their employment, and that of those in their household. This will lead to redistricting maps being redrawn based on inaccurate numbers. Then those who want Latino and immigrant communities undercounted, under-represented, and underfunded will have won.


If you or someone you know believe you have suffered discrimination, contact Dave Thomas at The Thomas Law Firm for a free consultation regarding your legal rights.n

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