Citizenship and the Census

Dean Reuter:                     Welcome to the Federalist Society's Practice Group podcast. The following podcast, hosted by the Federalist Society's Litigation Practice Group, was recorded on Thursday, April 12, 2018 during a live teleforum conference call exclusively for Federalist Society members. Welcome to the Practice Group's teleforum conference call as today we discuss the citizenship question on the US Census. I'm Dean Reuter, vice president, general counsel, director of Practice Groups here at the Federalist Society. Please note that all expressions of opinion are those of the expert on today's call. Also, we are recording today's call for use as a podcast in the future, and it will likely be transcribed for our website. I'm very pleased to welcome back returning guests, Professor and Dr. John S. Baker Jr. He's going to give us some opening remarks, his thoughts on the inclusion of a citizenship question in the US Census. After his opening remarks, we'll be looking to you for question, so please have those in mind for when we get to that portion of the program. With that, Professor Baker, the floor is yours.

Professor Baker:               Thank you very much, Dean. What I'd like to do in the opening statement is simply three things, one, the basic facts of what happened, and two, the rationale for the secretary of commerce deciding to ask the question, and three, what it might be needed for. Regarding the facts on March 26, secretary of commerce issued a seven-page letter or memo explaining that he had decided that the upcoming census, that is, what used to be called the short form that goes to every person in the United States, would include for the first time in a number of decades the question about citizenship. Immediately, there was a denunciation by the left politically and also by especially Hispanic groups that the question was inappropriate for a number of reasons, they claimed. One, it would scare off people from answering the census, and that it was politically motivated only. It was followed soon by litigation. That is, California was first to announce that it was going to sue. Former Attorney General Holder, who heads up a group focused on redistricting after the next census, announced that he was suing on behalf of some citizens from Maryland and Arizona. He claimed that the question was unconstitutional because everyone in the country had to be counted, and you couldn't distinguish between citizens and non-citizens.

                                                The fact of the matter is that the secretary of commerce has the discretion in terms of what questions to put on the census. This is a result of Congress some years ago basically getting out of the census business and kicking it over. This happened in the 1920s when they created the Census Bureau and gave it great authority in, I think it was 1929. Anyway, what the secretary had to do was to notify the Congress of what the questions would be. Once notification occurs, and in fact even before notification, the questions have to be printed up. The question was taken from what's called the American Community Survey, also put out by the Census Bureau, but it only goes to a small fraction of the population. The question on citizenship has appeared on that for a number of years. Congress needs to informed of the questions, but Congress can't block the questions simply by saying they don't like the questions. Congress would have to pass a bill somehow directing that the question not be included. Of course with this president, it would likely face a veto. On top of that, any delay in terms of the census will increase its already great cost and will, of course, potentially jeopardize the actual timely running of the census.

                                                Second, on the rationale, I mentioned seven pages. I read this thing, and I was astounded at the lengths to which the secretary went to justify his discretion, but he obviously knew that there was going to be an explosive response to including the question and probably was anticipating litigation. He laid out what his particular options were. One was to basically do what they've been doing, and that is on citizenship issues, they've been relying on the American Community Survey, which I'll come back to in a minute. The other options were to include the question from the American Community Survey, which only goes, as I said, to a small part of the population, included on the larger population draw, the Decennial, that is, every 10-year census, that is required by the Constitution.

                                                Then the other option was also to look at administrative records that are available to the census from other agencies of the federal government. I was surprised to learn about this. I didn't realize this. According to the memo from the secretary, the Census Bureau is able to validate up to an 88% rate at this point the actual accuracy of responses to the census. I can't tell you how they do this exactly, but I'm just reading, or read from the memo in terms of their ability to do this. That was very interesting to learn about that. Anyway, what he decided to do was to combine the two options of asking the question, using the question that had been used on the American Community Survey, and also going to the administrative records to validate for accuracy the responses.

                                                That brings us to the third thing, why is it needed? The ultimate goal a census ought to be accuracy. Of course, from the very beginning in Washington's time, the first census, President Washington complained that the census reflected an undercount, that not everyone had been counted. That has been a constant charge ever since by different groups claiming that they have not been completely counted in the census. Our ability today to get better data is improving apparently all the time. In any even, I turns out that in the study they did, that in the American Community Survey responses to the question of citizenship, they found that 30% of the people claiming to be US citizens were not in fact US citizens. It's based on the American Community Survey, as I understand it, that the projection that we have 11 million illegals in the country is based. If that projection based on what was a much lower self-response inaccuracy, that is, there had been taken into account the notion that there was some inaccuracy, I believe it was 7%, but if the inaccuracy rate is really 30%, what does that mean? That means that the number of illegals in the country is actually millions more.

                                                The rationale that was requested from the Justice Department and some of the states has been that they need data in order to deal with litigation and compliance regarding the Voting Rights Act that prevents states from using any means that would affect any of the particular groups, most notably here those who are in specified language groups, from being discriminated against in the process of redistricting. We know that the Supreme Court is dealing with two political gerrymandering cases this term, and we can expect that going forward we're going to get plenty of litigation on redistricting. As a result of the question being asked, the litigation is starting much earlier. Thank you, Dean, for allowing me to make that opening statement.

Dean Reuter:                     Of course. Thank you very much, Professor Baker. In a moment, we'll all hear an announcement that will say the floor mode is on. After you hear that announcement, if you have a question, you need to push the star button and then the pound button on your telephone. We've got plenty of time for questions. We budgeted 60 minutes for this call. Once again, if you have a question for Professor Baker, we're talking about the citizenship question on the decennial census, push the star button and then the pound button on your telephone. I'll start us off while we wait to see who weighs in. Professor, you mentioned 30%, I don't know if you'd call it untruthful, but 30% of people claiming to be citizens on the short form, which goes out every year and has gone out-

Professor Baker:               No, no.

Dean Reuter:                     The long form.

Professor Baker:               They used to call it the long form, but not it's been replaced by what's called the American Community Survey.

Dean Reuter:                     Right. The American Community Survey has for quite a few years in a row asked the citizenship question.

Professor Baker:               Right.

Dean Reuter:                     It goes to only a small number of people in the United States, as you say, maybe 3% or 4%.

Professor Baker:               I think it's 3% or 4%, something like that.

Dean Reuter:                     I think that's right. It's the responses there that 30% of the folks who claim to be citizens are not citizens. Is that correct?

Professor Baker:               About 30%. It's a range up to, I think, 28%. I can get the actual number.

Dean Reuter:                     I guess my question goes to not the exactitude of the number but how we discovered that 30% of the people who claimed to be citizens weren't citizens. Was that through the administrative record data, or was it through some other means?

Professor Baker:               Yes. Yes, it was. What's interesting, I didn't realize this was possible until I was actually giving a Federalist Society talk out in Colorado. I met the secretary of state, and I was asking him about the problem of illegal voting there. He said, "Oh, we check the voter registration rules against other records that we have access to, and we're able to eliminate those who are really not citizen who claim to be citizens. That, first of all, was a revelation to me that the states could do it, and then apparently the federal government can do the same thing. I guess given all the records they have on everybody, that shouldn't be surprising.

Dean Reuter:                     That is interesting, and I suppose not surprising, although I suppose some of these records including census data itself can't be shared within or even between sometimes government agencies. [inaudible 00:12:27].

Professor Baker:               It's certainly not supposed to be shared. We know, of course, that government agencies often violate their policies on that. We've seen it with the IRS and others. We can't assume necessarily that it won't be shared. I'm sure that is the intent of those in charge, but that doesn't mean that people down the line always adhere to that.

Dean Reuter:                     To be clear, it's only the government records, the administrative records that exist elsewhere that can legally be shared that could be used to verify to a certainty of 88%, I suppose, the census results.

Professor Baker:               That's my understanding, but I don't have anything beyond what the secretary has said in his letter. I'm not a statistician, obviously, so others would have to answer that question.

Dean Reuter:                     Right. No, I understand, I understand. I believe I read in the same letter or the underlying report, it is the policy of the United States not to share census data. The data collected here on citizenship would not legally be shared elsewhere.

Professor Baker:               No, it cannot legally be shared. One of the arguments against asking the question is that people say they fear that if they are illegally, that they will not answer the question for fear that in doing so it'll lead to their arrest. We know right now that illegals in the country have no hesitancy to go out and demonstrate publicly on television and don't seem to have, certainly not before this administration, not much fear of arrest.

Dean Reuter:                     Interesting. Once again, we're speaking with Professor Dr. John Baker. If you have a question, push the star button, then the pound button on your telephone. We've got one question pending, then our lines will be wide open. Let's turn to our first caller.

Eddie Greim:                      This is Eddie Greim in Kansas City, Missouri. I've got a question for you about the application of this in the reapportionment context. Let's say a state wanted to change its redistricting process to when drawing districts within the state only use citizens for purposes of having districts of equal population. I know Texas, down there a group tried to claim you had to do this, and the Supreme Court said, no you don't have to. As far as I know, it's perhaps a permissible option. If you wanted to do that, does the census question advance the ball? Do we need the question on the census to be able to get the data to do that, or is the ACS data good enough?

Professor Baker:               The ACS data has shown not to be good enough at this point. For section two the Voting Rights Act, they have been using ACS data. There was a letter from somebody at DoJ asking that the question be put on the census because they needed the data, they said, to deal with litigation. What you referenced to is the Evenwel case, Evenwel v. Perry from 2016 where the actual holding is that it was permissible for Texas to use total population. As you pointed, the plaintiffs wanted to use either total voter population or total registered voters, the implication, of course, being that, and that's your question, the state did not need to use total population. I'm sure that some of the states may want to use this data, in fact, to restrict the redistricting to include only those who are eligible to vote based on citizenship and age.

Eddie Greim:                      If for some reason this policy wouldn't go into effect because of litigation or whatever, should states that want to try to use only citizens or voting age population citizens, should they hold off because the ACS data is too unreliable?

Professor Baker:               That's a good question. When are you talking about doing the redistricting because the redistricting, at least for Congress, is going to be done after the census. Are you talking about redistricting before the census?

Eddie Greim:                      No, no, it'd have to be after the census.

Professor Baker:               The thing to do after the census, assuming the data is there, is if the state wants to, to in fact do it that way. There will be litigation over it, as there will be almost anything on this question, and we'll just have to see exactly what happens. Based on Evenwel, the argument would be that it is perfectly permissible based on the actual factors that they talked about.

Eddie Greim:                      Thank you.

Professor Baker:               Okay.

Dean Reuter:                     We do have one more question from a caller. If you'd like to join the queue, push the star button, then the pound button on your telephone. Let's take another call. Go ahead, caller.

Speaker 4:                           I've got a little bit of sore throat here. My question was, for many years there were a lot of people on the right, especially libertarian-minded folks, that were very, very concerned about the intrusiveness, especially of the long form. All these questions about everything from how many bathrooms you have in your house, to how long your ride to work is, to do you take your kids to school, there's a lot of questions that seemed the federal government shouldn't be asking us. I'm just wondering if we're going to hear from the libertarian-minded folks just about the overall scope and nature of a lot of the questions, not just this one question dealing with immigration status.

Professor Baker:               The number of questions on the decennial census is relatively low compared to the ACS, American Community Survey. I haven't seen the form, but I think the number of the questions including the citizenship will be 11 questions.

Speaker 4:                           What about on the long form?

Professor Baker:               The American Community Survey, I've read it has about 50 questions, and it takes about a half hour. That's what I think you're talking about and what most people object to.

Speaker 4:                           Yes.

Professor Baker:               Not everybody objects to it, but those object to it do so because it's intrusive, and it's time-consuming.

Dean Reuter:                     If you have a question, our lines are wide open now. Actually, we have one question pending. If you'd like to join the queue, push the star button, then the pound button on your phone. Let's turn now to our next caller.

Speaker 5:                           Hey, Professor Baker. I had a question in regarding to the apportionment of congressmen. I'm wondering if there really are so many more people who are identifying themselves as citizens but who actually aren't, obviously congressional apportionment is done by total population. There's not much we can do about that. Do you think there's a concern about states, for example California, that have very large illegal immigrant and also legal non-citizenship populations getting a lot more influence in Congress as opposed to other states that have smaller populations but a greater percentage of citizens?

Professor Baker:               Thank you for that question. First of all, what's interesting is that California, which has sued over the citizenship question, as of April 1 is asking the citizenship question in a way. You may have read that California has passed this automatic voter registration when you get a driver's license, and illegals are allowed to get driver's licenses. Obviously, if you automatically register everyone who gets a driver's license, you are necessarily going to be registering illegals. To get around this, there is a requirement, I can't remember the exact language in the regulation, there is a requirement that there be information affirming that the person is qualified to vote, including that he or she is a citizen. California is asking the question. They're making it relatively difficult to in fact verify the truth of the answers. That's a real problem. That's one thing.

                                                Two, I don't agree with your premise that there's nothing that can be done regarding Congress. You may now know but back in the time of the last census, I wrote a piece in the Wall Street Journal arguing that including illegals, and not only illegals but people who are not citizens but here legally in the reapportionment is simply unconstitutional. I know it goes against the conventional wisdom, but the issue has never been decided. Obviously, I think that based on Holder's lawsuit, at some point the question will be decided. Whether it's decided or not, your actual point is about the political weight that illegals are having in the electoral process.

                                                California is still the largest state, but there's been an outflow of people and an inflow of people into California. We don't know whether the people leaving are mostly citizens and whether the people coming in are mostly not citizens. Getting a good picture of California and how much of its current political power both in the House of Representatives and in the Electoral College turns on illegals will be a very revealing fact that I think will anger people in a lot of states when they realize that California is building its political power base based on illegals.

Speaker 5:                           Thank you.

Dean Reuter:                     Once again, our lines are wide open. If you have a question, push the star button and then the pound button on your telephone. Pause to see if anyone weighs in with a question. While we're waiting, let me ask a question. It seems like there's at least two different levels here in terms of representation that this census question could lead to, and that's a different reapportionment of representatives between the states with some states losing and some states gaining representatives. That's one issue that pits one state against another. There's also the issue that I think Eddie Greims was alluding to, and that's how individual states choose to redistrict their own representatives within their state. We have a lawsuit on that first issue, I believe. Are states trying to join the lawsuit on the second issue, that is, to assert their right to have this information so that they can draw their own district lines taking into account citizens versus non-citizens?

Professor Baker:               I can't speak to all the states. I do know what Louisiana did. There was a letter from the attorney general there, a friend of mine, asking for the information so that they could comply with the Voting Rights Act. As to whether or not they're going to look at representation differently within the state, I have no idea at this point, and therefore I don't have any idea what other states are going to do. The question from Mr. Greims, I think, is a good one, and people ought to talk about it so that they become aware that it's an open issue. States that choose to do this, as I said, it'll result in litigation, but it's a question worth litigating.

Dean Reuter:                     We've got two questioners on the phone now. I'll turn to them in just a second. One thing I wanted to clarify, I'm not sure if you covered this in your opening remarks, but it was my understanding that even on the decennial census, this question was included up to 1960. It was on the 1950 census but not on the 1960 census. Has been any research that you're aware of-

Professor Baker:               For most of our history it's been on, and then it was dropped. Yes, you're right. I can't tell you the reasons why it was dropped.

Dean Reuter:                     Okay. You've anticipated my question about the question.

Professor Baker:               Here's an interesting thing from an article by James Bovard. It's in The Hill. I found this really fascinating. He actually was a census taker back, I think it was in 1960. Anyway, he said this. I'm reading, "Census takers in our area were initially told not to count illegal aliens. Halfway through the tabulation, a supervisor blithely announced that henceforth we should count all such people." That was amazing.

Dean Reuter:                     That is interesting, to change horses midstream.

Professor Baker:               [inaudible 00:27:42].

Dean Reuter:                     Do you know if other questions that had been on the census form were dropped between 1950 and 1960? Was this a trimming of the sails?

Professor Baker:               No, I don't know, but I do know that there is a very political process. Interestingly, in Bovard's article he is responding to Holder's statement that what the census questionnaire is doing is motivated purely by politics. Then he says, "By contrast, the Obama administration's push to expand the Census to ask if respondents were gay, lesbian, bisexual, or transgender was non-political, right?" Unfortunately, the whole idea that taking the census out of Congress's control has made it less political is not the case. I can tell you that when I looked at this back at the time of the last census when I wrote the article, it was clear that every time the census comes around there are different political groups that are in there influencing things. The last time around, cities were arguing over whether prisoners who were residents of the city but were housed in a prison outside the city should be counted as residing in the city or in the town where the prison was. That went back and forth. I forget the actual resolution of it at the time.

                                                Earlier back in the '70s, Hispanic groups went to the census and lobbied for changes. Again, I can't remember all the details at this point. It is not a purely scientific process. There are political decisions that are made that are not transparent. The Census Department or section of Commerce has a whole number of "advisory groups" that are certainly tilted in a way that favors minority groups and others having more clout at the table. It may have been that in the past that they didn't have sufficient recognition, but I think if you look at it right now, the tilting has gone the other way.

Dean Reuter:                     Are those outside advisory groups, or are they employees of the Commerce Department?

Professor Baker:               As far as I can tell, they're outside advisory groups. They're stakeholders as ...

Dean Reuter:                     Interesting.

Professor Baker:               ... government bureaucrats like to refer to people that influence them.

Dean Reuter:                     We do have a couple questions pending, but I want to get one more questions in while we're on this line of thinking. You've described the process, the decision making process. You mentioned a lawsuit. I'm wondering if you have any thoughts about what sort of standard of review a judge should impose in a case like this. The decision came out of the Commerce at the request of some state AGs but certainly the Department of Justice to add this question. I think there's a pretty extensive administrative record. Is this subject to strict scrutiny to rational basis review? What are your thoughts there?

Professor Baker:               I don't think it's subject to any of those. The secretary has discretion, period. Discretion is discretion. In terms of either rational basis or strict scrutiny, that seven-page memo is fairly compelling, especially when they are able to demonstrate the inaccuracy of the ACS on the citizenship issue. Any fair-minded federal judge who isn't driven ideologically to the left would have to side and say, "Hey, this is not a question for us. He has been given the discretion, end of discussion." Of course, we know that there will be cherry picking in terms of the federal districts that they go to to file this litigation, some of it in the Ninth Circuit. We can predict what's going to come out of the Ninth Circuit.

Dean Reuter:                     Under your analysis, the proper response here would be case dismissed.

Professor Baker:               Yeah. It should take five minutes to dismiss this. It won't, but it should. That's how little merit there is to it.

Dean Reuter:                     Once again, if you have a question, push the star button, then the pound button on your telephone. We'll turn back to the audience, two questions pending. Go right ahead, caller. We're trying to get to the caller at area code 832. You might have your phone muted. If you do, you need to unmute.

Speaker 6:                           Hello?

Dean Reuter:                     Go ahead, we can hear you.

Speaker 6:                           Hi, my name is Sarah [inaudible 00:32:48]. I'm calling from Houston, Texas. I just have a quick question. You're saying that there's 30% of census takers who say they are US citizens but are not in reality. Are we assuming that they are all illegals, or is there a distribution that was calculated that is visa holders for business or residency visas for different purposes, green card holders, asylum seekers, refugees? Are there those differences within that 30%?

Professor Baker:               As I said before, I'm not a statistician. I was reading from the letter memo that the secretary put out. There is no indication in the letter that they say the breakdown that you're talking about. They don't even see their people are aligned. They merely say that these are false responses. It doesn't say the reason for the false responses. The whole point is they want accurate responses. They can tell from other data, and I can't tell you all the administrative records that they're looking at, the letter doesn't say, they can tell that almost, it's not exactly 30%, almost 30% are making false claims of citizenship. Whether they are innocently false, deliberately false, the reasons why they're false, none of that is in the memo.

Dean Reuter:                     I got some background noise on the caller's phone, so I muted that. I'm going to unmute her phone and see if she has a followup question here.

Speaker 6:                           Okay. Thank you so much.

Dean Reuter:                     Very good. Again, if you have a question, push the star button, then the pound button on your phone. We've got one question pending. Again, our lines will be open. Let's turn to our next caller.

Speaker 7:                           Thank you, Professor Baker. I have a question about the legal strengths of California and General Holder's arguments. I guess my first question is, do you think that this is final agency action under the APA for the secretary of commerce to add this question? Then the second would be, do you have any comment on the constitutional claim that California is making?

Professor Baker:               The Holder claim is that you can't ask the question because the Constitution requires the counting of all people. That's a non-sequitur. There's nothing in the letter or memo about what they do with the numbers other than the data is needed for accuracy purposes and for the Voting Rights Act. In terms of what you do with the information, I don't think that the challenge in so far as it goes to the question of redistricting after the census is ripe at this point. That is, there hasn't been any census. What they're trying to do is to stop the question. To stop the question, they have to link it to the census. The agency action is what happens when the census is taken. At that point, the agency has taken action that may be subject to the APA. It's my understanding, and again, I'm not an administrative law expert on this, and I know that certainly in other contexts regarding what Obama did with the border, there were detailed arguments and disagreements about the effect of the APA. As far as I understand the authority of the secretary, he simply has to decide what the questions are. It's not the same kind of process that you would go through in terms of a rule or regulation.

Speaker 7:                           Thank you.

Dean Reuter:                     Our lines are once again wide open. If you have a question, we still have some time left. Push the star button and then the pound button on your telephone to indicate you have a question. I can still run through a few more questions here myself. One, I think you covered this in your opening remarks, Professor Baker, but I just want to make sure of it. You mentioned that this process began with a request, I suppose, from the Department of Justice that this citizenship question be included on the census. I assume that means that the legality of this whole issue was vetted by the Department of Justice and it went through all of the appropriate channels, and people there signed off that this was a constitutionally sound approach.

Professor Baker:               Actually, the McClatchy Group called me, you may remember because I think you referred them to me, called me about how this whole thing came about. Their questions were more about what business does this guy in the Justice Department have to ask this question? What was motivating it? My response was I'm sure that somebody in the Justice Department realized that this was going to be a controversial question. I can't imagine that he came up with it simply on his own. There had to be consultation within the Justice Department, but I don't know what that was.

Dean Reuter:                     Very good. Looks like we do have another question from a caller. Again, push the star button and then the pound button if you have a question. Let's turn to our next caller.

Speaker 8:                           It's not so much a question as a comment. Earlier you were talking about stakeholders groups and are the inside or outside employees versus outside. I think there's a middle ground that they probably are, which are advisory committees under the Federal Advisory Committee Act. Those are stakeholders groups, but they're convened by an agency or the president. That's where that sort of thing tends to happen.

Professor Baker:               Yeah, you're right. Thank you for that addition.

Dean Reuter:                     I don't see any more questions on the board here. If you have a question, push the star button and then the button if you're in our audience, or a comment. I'll ask one more question, and that's about the technology, the age of technology and the requirements of the Constitution, and the enumeration, and the administration record, all these things going together. There's a specific requirement in the Constitution that an enumeration be made, which I think has been interpreted as a fairly exact count. Technology now provides all sorts of information on individuals in the United States in a way it didn't at the founding and has never previously provided. The administrative record, you mentioned, gives all sorts of other information on people. Do you have an opinion on whether or not there needs to be door to door census taken maybe not this time around but next time around or the time after that when everybody's logged into a master computer and easily identifiable, or is there a legal requirement there be a door to door head count and enumeration that way?

Professor Baker:               Interestingly, the census process is more than door to door already. It doesn't completely rely on it. They send people out to count homeless people who sleep under bridges and things like that. The Constitution doesn't specify except the words it uses. The question is, what is a legitimate means to get that enumeration? A big issue, and I don't know where it stands at this point, was that the Obama administration had entered into apparently contracts to do much of the work through the internet. I don't know, maybe they were going to have Facebook do it for us or something. I guess the question is, what does enumeration mean? It appears from the letter of the secretary that he wants to improve the ability from administrative records to verify the actual head count, if you will. The question is whether in the future it would be constitutionally permissible not to do it. That's your question. Can you just do it from all these administrative records?

                                                My reaction would be, do we trust any bureaucrat on the right or the left, Republican or Democrat, to do it in a way that is not subject to manipulation? Right now we're dealing with problems in some states about the use of electronic voting and the failure to have a paper trail on many of the voting machines. It would seem to me that you'd want very clear evidence of a paper trail. Then you run into the problem of, wait a minute, this information is not supposed to be divulged to the public. How do you do all this? What your question raises is the real challenges presented by technology. On the one hand, it makes certain things easier, maybe less costly, but can we rely on it? Can we trust it? I don't know. I'd want to know from the technical side what really are our capabilities, and how can you protect the accuracy of it? It's all about accuracy, or it should be, even though we're never going to get perfect accuracy.

Dean Reuter:                     Very good. It looks like we do have one question pending. Another announcement, if you have a question, push the star button and then the pound button on your telephone. Let's take another call, continue our discussion.

John Shu:                             Good morning, John. This is John Shu in California.

Professor Baker:               Hey, John.

John Shu:                             Thank you for the teleforum today. Thank you also for pointing out that California in fact does ask for the motor voter driver's license voter registration to affirm that the person is in fact a citizen for voting purposes.

Professor Baker:               Go ahead.

John Shu:                             Please forgive me, I have a two-part question. Part A, is it unconstitutional for states to use the race data to redistrict certain metropolitan districts that have changed from primarily African American to mostly Latino, to redistrict those in order to protect their African American incumbents? B, if it is unconstitutional, isn't even collecting that race data and the use of it, isn't that worse than asking about citizenship and whatever use may or may not come from the citizenship part of it?

Professor Baker:               I have opinions on a lot of this that are my personal opinions that don't necessarily correspond to the results in litigation. Having lived many years in the South where they used to take and require you to decide, check off race, I've never liked any of that. I think if we're supposed to be race neutral, we're supposed to be race neutral. On the other hand, we have the problem of discrimination and how do you prove discrimination. I can't give you an immediate reaction, John. I'm sorry. What's your opinion?

John Shu:                             My feeling is that because race is so clearly strict scrutiny, 13, 14, 15th Amendments passed because of race and partially because of citizenship, but the citizenship part of it, where the African Americans were denied was because of race. My feeling is that if we want to know the race of our respondents and if certain metropolitan districts which are heavily Democrat, if they use that data then to redistrict away from newer Latino residents in order to protect the African American incumbent, my feeling is that it's equally as unconstitutional, if not worse, than asking about plain old citizenship because you can't gerrymander around citizenship unless you admit that illegal immigrants vote. Without that admission though, if it's okay to ask about race, and as far as I know both left and right are okay with asking about race, and if it's okay for the left, for Obama to ask about LGBTQ question mark, then I believe that it should be all right to ask about citizenship. In other words, I think it's all or nothing.

Professor Baker:               I agree that it should be all or nothing. The problem is that it isn't. The difficulty is this. If you're on the left and you ask the question about race, the assumption seems to be that you have a good motive. If you're a conservative or on the right and you ask about race or anything, it's assumed that you have a bad motive. Years ago, I actually had to defend a state policy in Louisiana on the question of race in grand juries. The lawyer for the plaintiff, who was an ACLU lawyer, I told him that what the state had been doing was to attempt to overcome the charges that it had been discriminatory, and therefore it affirmatively was including people of the black race in order to make sure that they were in compliance. His response was, "Well, that was racially motivated, and therefore it's still wrong."

                                                The notion was it's all right really for the left to do it, looking at race, because they have a good purpose, and if the state were to do it, it must have a nefarious purpose. Again, I think that the question of citizenship is totally neutral. You can say that there is an invidious purpose, but the reality is the question itself is not invidious. I agree with you, but I don't know whether courts are going to agree with us.

John Shu:                             I do believe that running government policy or deciding constitutional questions based on the particular motive of whichever administration happens to be in office is a very dangerous precedent because motives change, administrations change, but ideally the Constitution, living or not, does not change without amendment, of course.

Professor Baker:               Look, I agree with that. I've actually written on the problem of motive. The reason why motive comes up, and it's true in hate crimes, the reason it comes up is because the Supreme Court has been ambiguous in its use of the word purpose. Purpose can mean intent, or purpose can mean motive. Motive and intent are not the same thing. You can have various motives for the same intent.

John Shu:                             Thank you, John.

Professor Baker:               Thank you, John.

Dean Reuter:                     Once again, let me make a final call for questions now. If you have a question, push the star button and then the pound button on your telephone. It feels like we've had our final question, Professor Baker. Let me come to you with one final question, and in that answer you can take an opportunity to wrap up or express any final thought. You mentioned a lawsuit by California. I believe that's by citizens of other states represented by Eric Holder, but there are state lawsuits filed by state AGs.

Professor Baker:               Right.

Dean Reuter:                     I wonder if you want to explain any differences between those two types of lawsuits, one by people, one by states, any standing issues you see there, and then wrap up.

Professor Baker:               There certainly could be standing issues. I haven't actually looked at the actual complaint to see who is named as plaintiffs, even though they've named California. What officials in any way, is the secretary of state named, does it affect his or her duties, I haven't looked at those kinds of question. I think Holder in representing individual citizens thinks he has standing. The question is, what standing does a citizen have in terms of the decennial census.

Dean Reuter:                     Do we know he's representing citizens, or could there be some non-citizens that he's representing?

Professor Baker:               Good point, good point. Again, I've only read reports of it. I have not looked at his actual filing on this. There will be arguments that people who are citizens and who, say, speak only Spanish, that they're not going to be able to, or they will be frightened, or they won't be counted. There are all kinds of arguments. One of the arguments repeatedly made has been that if you ask this question, there will be an undercount. People will not answer the question. Again, if you look at the memo from the secretary, they did a study of non-responsive self-responses on the ACS to different question. The responsiveness was essentially the same, or lack of responsiveness. There's a certain percentage on almost every question. Although former heads of the Census Bureau, some of them had said that there would be an undercount, people wouldn't answer the question, there's no data on that, no data at all. It was their feeling that this is what would be the case, but we don't have the facts on this. There are claims, but there isn't the evidence.

Dean Reuter:                     It sounds like what I heard you say is we do have some facts on this, and they affirmatively don't support the claim.

Professor Baker:               Yeah.

Dean Reuter:                     That is, the non-response rate tends to be the same regardless of the question.

Professor Baker:               No, exactly. That's what I was going to finish saying. That's what happened. This memo comes up with information that apparently was unavailable before, or at least unavailable in the public before.

Dean Reuter:                     Interesting. Any final thoughts, Professor Baker, before we adjourn?

Professor Baker:               I would just say this, that Holder and the group, the non-profit that he has, which obviously is being joined in by former President Obama and the left, they are very well-organized for redistricting in the census. I can tell you on the conservative side there are very few resources. If conservatives and Libertarians don't get out there, if they think this is an important thing, an important question, they need to get out there and be supportive of the question, not simply neutral or not paying attention to it. The other thing is some people on the left are telling respondents not to answer the question. That doesn't help, one, because apparently the Census Bureau can in fact determine what their citizenship is, at least up to about an 88% accuracy. How does that help, especially if they say don't answer the census at all? The argument should be the opposite. If you're worried about an undercount, then try to make sure that everybody answers the census. A number of the arguments against the census question simply are in conflict with each other. Anyway, that's about [inaudible 00:55:03].

Dean Reuter:                     One final question. Is there a legal requirement to respond to the census? Are the folks you mentioned counseling lawlessness?

Professor Baker:               Interesting question. I hadn't thought about that. They certainly are counseling failure to go after it. Unfortunately, as the Bovard article points out, candidate Ronald Reagan urged conservatives not to answer most of the questions. I think he was referring to the long form back then. I think a lot of it depends. People on the right and the left always fear that the other party or the other group in control of the census is going to manipulate it politically. Both sides have justification to police that. They ought to police that. The left is policing this administration. Fine. The administration is responding in great detail, and I think they've done a great job in that memo. My concern is that on the right the tendency has been to yell a lot but not in fact to have the resources to litigate or to carry on the social media campaign that the left has.

Dean Reuter:                     Right, very good. My thanks to you, John Baker, Professor John Baker, for joining us today. We will likely check back in with you as this matter progresses. I want to thank the audience as well for dialing in and for your thoughtful questions. A reminder to the audience to check our website and monitor your emails for upcoming teleforum conference calls. Until the next call, we are adjourned. Thank you very much, everyone. Thank you for listening. We hope you enjoyed this Practice Group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit the Federalist Society's website at fedsoc.org/multimedia.