FOUR PINOCCHIOS

ARE YOU A "PERSON"?  IF YES, YOU COUNT.  ON THE OTHER HAND, IF I DON'T COUNT YOU, DOES THAT MEAN YOU ARE NOT A PERSON?

 

Trump's answer is "Yes." And the same goes for the Secretary of Commerce, Wilbur Ross, who, to my knowledge, bears the distinction of being the first cabinet officer ever to be called an out-and-out liar by the Supreme Court of the United States.  (The language is mine. The substance of the language belongs to the Supreme Court.)

 

The Constitution, that annoying document that keeps getting in Donald Trump's way, requires a decennial count "of the whole number of persons." Not "citizens," but "persons."

 

How do we do the actual count?  The Constitution left that up to Congress, and Congress left it up to the Department of Commerce, which contains a Census Bureau to handle the details.

 

The counting process is broken down into two phases. First, residents are encouraged to fill out a questionnaire and submit it to the Bureau. Then a phalanx of doorbell ringers sets out to get the information from people who have not timely submitted their forms.

 

The census count is important for a number of reasons:

 

First and foremost, it is used to determine the number of house seats for each state. States with large numbers of undocumented residents are awarded more House seats than they would have received if only citizens were counted.

 

Second, the state count has a huge impact on federal funding.

 

Third, the Census Bureau breaks down its count into "blocks" that show the number of persons in specific neighborhoods in each state. That information count is used by many states in drawing the lines of local election districts, the key ingredient in gerrymandering.

 

In all census inquiries but one in the years 1820 to 2000, respondents were asked about their citizenship status. The question did not appear in the 2010 count. In March, 2018,  Commerce Secretary Ross announced that he had determined to add back the citizenship question to the 2020 census.

 

A number of litigations followed. Challengers asserted that under today's political climate, the question would result in large numbers of undocumented residents shunning the count. To admit to the government that you are here illegally was an invitation to deportation. This was especially so at a time when the President had pledged to deport all undocumented persons. The law forbids the use of census data for such purposes, but let's face it, nobody in his right mind, citizen or non-citizen, would trust this president and his acolytes to obey that law. The easy way out is to avoid the count.

 

Could that be the political motive for Wilbur Ross's decision? Does a bear poop in the woods? It is the large urban centers that contain the most undocumented residents, and it was those large cities that reliably voted Democrat. Reducing the count in states like New York and California would reduce the number of seats those states had in the House of Representatives, and would reduce federal funding to those states as well.

 

Ross of course denied such a motive. Perched atop his white horse, he announced there was a single reason for his decision to restore the citizenship question: the Department of Justice had requested the information to enhance its ability to enforce the Voting Rights Act.

 

Would anybody believe that? Anybody?

 

Certainly not the District Court that made a thorough review of the history of Ross's decision. And certainly not the Supreme Court of the United States which agreed to review the lower court decision directly, skipping the Circuit Court.

 

In an opinion written by Chief Justice John Roberts, the Court found the Ross decision didn't pass the smell test. The documents showed that Ross had learned from his own Census Bureau that adding the question would likely suppress the count of undocumented persons, but he went ahead anyway.

 

While avoiding use of the ancient legal doctrine "Liar, liar, pants on fire!", the Supreme Court found Ross's claimed reason for his decision was "pretextual" and "contrived."

 

The court found that Ross "had determined to add the citizenship question from the time he entered office" and had "instructed his staff to make it happen."

 

The claim that the DOJ request was the basis for Ross's decision was pretextual.  Ross had already made up his mind to add the citizenship question, and then, looking for legal justification, he solicited the DOJ to send him the Voting Rights Act letter. 

Jeff Sessions complied. 

 

And to make matters worse, Ross tried to cover up his lie by misleading the court. In his required submission to the court of the agency's documents related to the decision to add the citizenship question, Ross gave the court the DOJ letter, but failed to give the court the Commerce Department letter soliciting the DOJ letter.  That was arguably a fraud on the court, and perhaps criminal conduct.

 

But somebody in DOJ read the Commerce Department's misleading submission, and demanded that Ross correct the record. Only then did Ross submit his solicitation letter.

 

Conclusion: the Court struck down the Commerce Department determination to add the citizenship question to the 2020 census, finding the submitted rationale for the decision was "contrived"-- court-speech for a "Four Pinocchio" lie.

 

Bottom line, the 2020 census will not have a citizenship question.

 

But Trump has not surrendered. While he cannot get exactly what he wanted, earlier this month he signed an Executive Order that directed all government agencies to report to Commerce all information they had re the location and count of undocumented residents. This, he argued, will help states in redistricting decisions, i.e., gerrymandering. He abandoned the Voting Rights Act lie.

 

And just this week, the Trump All-Star Prevarication Team has come up with a new scheme to suppress the count of undocumented persons.  He has ordered the Census Bureau to "hurry up" the count, the sooner they finish, the better. This, of course, would shorten the second phase of the count, the door-knocking that produces a disproportionate enumeration of the undocumented population who did not respond to written questionnaires.

 

There is no end to this president's effort need to manipulate the voting process to his advantage. Just yesterday, he suggested that because of the pandemic, we should perhaps delay the November 3 election.

 

The suggestion led pessimists to say "See, I knew he would find a way to screw up the election!" But they missed the real point: Trump's suggestion just reveals his recognition that he is way behind and likely to lose, and the more time to recover before election day, the better. Trump is desperate, and panicking.

 

Trump's suggestion also reveals his ignorance of the law and Constitutional mandates. The November 3 date is fixed by statute and is invulnerable to the president's tweets. Moreover, the Trump tweet was met with immediate rejection by Republican legislators, including Mitch McConnell.

 

This TV reality show host is running out of places to hide from reality. The Constitution says unless he is re-elected, he ceases to be president at noon on January 20, 2021.

 

 Period.

 

A bientot.

 

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