The Census Case

May 7, 2019

Too much is happening in this world, but the census deserves discussion because it affects how we handle everything. New York Solicitor General Barbara Underwood argued in the U.S. Supreme Court that the coming census will undercount the population and do significant damage to the people of New York and elsewhere.

I sued the Census Bureau over the 1970 census and lost. So few people had sued the Bureau, that loss made me an expert. A town in Indiana gave me a first-class plane ticket to help them at trial on the same issue. Who else were they going to get?

In court, on the case I had brought, the federal judge told me I’d have to have an overwhelming case to get relief against the Census Bureau. The Justice Department Attorney in Washington, D.C., responded, under his breath, that indeed I did. I was a bit more humble.

The problem was that we were attempting to predict the effect of the Bureau’s shift from exclusive reliance on an army of census takers knocking on doors to a mailed census form for people to fill in. Although I was suing in Washington, I was working for the St. Louis Legal Aid Society. We were convinced the changes would undercount our clients, so that many of the programs they relied on would be underfunded. As Chief Justice Burger explained in another case, a public education was largely unavailable to many of our clients. Without that, the census form would be difficult to fill in, if they filled it in at all.

The Census Bureau had studied the issue, and without getting into the weeds, I knew the studies they relied on, and the strengths and weaknesses of those studies. By the time they got me to the trial in Indiana, I realized the Indiana team did not have a witness that could deal with the issue.

This time the Bureau is asking people to file their census forms online. And they are asking about citizenship. The citizenship issue runs into the words of the Constitution. Article I, section 2, written in 1787, says the people should be counted “according to their respective Numbers.” It doesn’t refer to citizens or residents. Just Numbers. The reason of course was slavery. Slaves weren’t treated as citizens. But white southerners wanted the value of their votes increased by what the Constitution called “three fifths of all other persons,” i.e., slaves. Slaves had to be counted. So, the language and the original meaning are clear that everybody, citizen and noncitizen alike had to be counted.

In this case, the Bureau opposed adding a citizenship question because it would degrade the accuracy of the population count. Their view was based on a number of studies. But Secretary Ross overruled the Bureau without the benefit of any research and in the teeth of the experts’ views.

Regardless, several conservative judges argued that what the Secretary wanted to do was common sense. Science, statistics, data, who needs it? They treated science as if it just obfuscates reality much like those people who deny the science behind climate change, or the medical science behind vaccinations, or the biology behind changes in species over time. Science is taking a beating, but we will bear the pain. And since the census is about the health of American democracy, self-government will take the licking.

Population trends don’t favor the candidates preferred by five members of the Supreme Court so they’d rather throw the lawsuits out than allow the census to reflect the changes. Chief Justice Roberts said, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” just dedicated judges. Don’t hold your breath.

— This commentary was broadcast on WAMC Northeast Report, April 30, 2019.

 

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The Value of Democracy

September 12, 2017

Driven by the Tea Party, Republicans gave us a Congress that hasn’t been able to get much done. Saying less government is better, they take credit for getting nothing done, and leave immigration, tax policy, and health care to fester. It took the Democrats to make a deal with Trump to open the spigot even on hurricane relief.

Republican scorched earth policy is scariest for the lesson we take from it. For some of us the lesson is partisan – the other party must be defeated, fast. But for some Americans the lesson is that democracy doesn’t work, isn’t worth standing up for, honoring and protecting.

Many Americans have seen nothing but gridlock. Unlike the ways the parties worked from the 30s through the 80s, we’ve been dominated by gridlock since the mid-90s, especially when Republicans controlled Congress and Democrats were in the White House. Newt Gingrich and then the Tea Party made gridlock both their goal and tactic – if government can’t get anything done, then there is less government, never mind all the things for which we depend on government.

Republicans literally shut the government down under Clinton, only to discover that the American people didn’t like it because, from fixing potholes to carrying the mail, from sending out Social Security checks to keeping the skies safe to fly, government does lots of things we depend on.

By the mathematical logic of a majority of a majority, a minority in Congress could rule the Republican caucus and that caucus could stop everything so long as they agreed to stick together. So that minority of Congress gives us gridlock. We often talk about minority rights. But we are experiencing something else, not democracy, but it’s opposite, rule by minorities.

Elsewhere, dissatisfaction with democracy paves the way for dictatorship, in places like Syria, Iraq, and much of the Middle East and Eastern Europe. What replaces democracy is not some kinder, gentler, godly leader but kleptocracy, the rule of thieves, taking as much as possible from everyone to fatten their own pockets. Want to start a business, give the tyrant a cut. Want to export or import, the tyrant gets a cut. Courts aren’t in the business of dispensing justice; they’re in the business of looking at who is higher in the hierarchy. That’s why the flow of refugees isn’t from democracy to tyranny, but from dictatorships to freedom and democracy.

Democracy has a key secret. We can argue about who was wrong about Vietnam, Iraq, Obamacare, whatever – the people make painful mistakes – but a democratic people have the ability to vote the bastards out. Generally that gets the people better results than passing the reigns to dictators who can twist everything for their own benefit while sneezing at the people’s misfortune.

Democracy is not to be sneezed at. It is the singular American contribution to this world and we must protect it from foreign powers and political bosses who would control the people by gerrymandering, manipulating the census, keeping people from the polls or not counting their votes, We must protect it from fraud, from lying to the public, and from autocrats who claim they can fix everything if we’d just let them do whatever they want, autocrats who would have us end up like Venezuela under Maduro, Turkey under Erdogan, or like Hungary, Syria or Iraq and from so-called leaders who claim the rules don’t apply to them. We must protect it for ourselves.

— This commentary was broadcast on WAMC Northeast Report, September 12, 2017.

 


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