Ashley Allison, host of Pod for the Cause, interviews Dale Ho, voting rights program director at the ACLU, to discuss all things census. They discuss the Supreme Court oral arguments case to remove the citizenship question, counting all communities, and the importance of a fair and accurate count in 2020.
S01 E02: Census – Counting All Communities in 2020
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Ashley: Welcome to Pod for the Cause – the official podcast of the Leadership Conference on Civil and Human Rights, where we expand the conversation on critical civil and human rights challenges of our day, coming to you from Washington, D.C. I’m your host, Ashley Allison. I got the Pod Squad. I got my girl, Arisha Hatch, Managing Director of Campaigns for Color Of Change, and my girl Gabby Seay, Political Director for 1199SEIU.
Today we are talking all things census. I think it’s the sexiest civil rights topic we’re gonna be talking about right now. I wrote my college thesis on the census. We’ll get to that at one point. The census is conducted every 10 years, it’s required by our Constitution, and a lotta people don’t know about it. There’s a lotta challenges that we’re facing, so we wanna talk about it. We need to make sure everyone is counted. It doesn’t matter if you’re a citizen or not. All people have to be counted. I’m just gonna start with a basic question: what was your first interaction with the census, Gabby?
Gabby: It was 2010, and I remember the census was happening, and I was really excited ‘cause I’m a person that likes taking surveys and questionnaires. I just enjoy them for some reason.
Ashley: Like a Buzzfeed quiz.
Gabby: Yeah, Buzzfeed was created for me to take quizzes all day instead of do actual work. Anyways, I was waiting for it, and I got my census, and I sat down on my couch, had a glass of wine, and then I completed it in seven minutes.
Ashley: You’re such a nerd.
Gabby: I was so disappointed. I was like, “I wish the census was every day. This was so much fun. These are the people that are in my household.” It was me and the guy that I dated at the time.
Ashley: Where’s he?
Gabby: Girl, I don’t know, marrying some woman, not me. Hallelujah.
Ashley: Arisha, what was your – listen, we all just had a flashback real quick.
Gabby: We did.
Ashley: Arisha, what was your first interaction with the census?
Arisha: I actually don’t remember ever taking the census. I don’t remember the last one. I think I had just moved back home with my parents after law school, in deep debt. I’d taken this organizer job and wasn’t making any money, but I think one of my first jobs, if I remember correctly – I could be totally making this up ‘cause it was a long time ago – but I think one of my first jobs when I was 17 or 18 in high school was they opened up one of these call centers in my hometown – the census pop-up call center, and I think I called people to remind them to complete their census.
Ashley: Here’s the reason –
Arisha: One of many telemarketing jobs I’ve had, randomly, in my life. I’ve done a lot of telemarketing.
Ashley: Okay, okay, that’s another show.
Ashley: How to become a telemarketer. One of the reasons why the census is important is in 2010, I was a law student in Brooklyn, New York, and now I live in Washington, D.C. Where were you in 2010, Gabby?
Gabby: I was in Ohio. In Columbus, Ohio.
Ashley: What about you, Arisha?
Arisha: I was in Chino Hills, California.
Ashley: Do either of you live where you –
Ashley: No, right? The data that they’re still using from 2010 has our old information, so it seems like I’m a law student in Bed-Stuy, you’re in Columbus, and you’re in Chino Hills. I don’t even know where that is in California, but you don’t live there now. I’m sorry, no shade towards Chino Hills.
Arisha: Be still my heart.
Ashley: I didn’t mean to shade you, but I don’t know where Chino Hills is. Do you know where Youngstown, Ohio is? No. Anyway, it’s that they’re using the data from 2010, and the reason why it’s conducted every 10 years ‘cause a lotta stuff can change in 10 years. You can have a baby, you could get married – that has not happened to me, but I don’t live in New York anymore, and I do live in Washington, D.C.
It’s also ‘cause census data makes a lot of decisions based on – I have a Whole Foods in my neighborhood, how many people, how much money do they make, what’s the demographic versus what hospitals I need to have access to. The thing about it is you were at a call center – in order for people to fill out the census, it happens in a couple ways. First they get a form mailed to them, and if they don’t fill it out, they might have someone call or knock on their door called an enumerator. The other thing that’s really cool about the census this year is that it’s online. People can actually fill –
Gabby: Oh, I didn’t know that.
Ashley: Yeah, it’s the first time the census could actually be done online, but there’s also a lotta challenges. For young people, we’re very transient population. What are some of the tips that you would give to people if you were telling them to fill out the census, Arisha? Why should they be filling out the census in 2020?
Arisha: For all the reasons Ashley just named. A lot of decisions about resource allocation to your community are gonna be made based on that. Decisions about how different elected seats are gonna be allocated within your community are gonna be made based on the shifts 10 years later. I think for me, one of the reasons I’m excited about the census now, even though I don’t remember it 10 years ago, is because I randomly got into ancestry.com. I did all the bad things. I gave them my DNA. Don’t do that.
Ashley: Where are you from? Or did they tell you?
Arisha: They shifted it. I learned a few things, but Mali, the Congo, or some of the African places.
Ashley: Oh, cool.
Arisha: They tried to tell me that I was 25 percent Irish, and they took it back and revised it, so whatever. It doesn’t matter. I don’t know anymore information, but what was really cool about ancestry was that you could build your own family trees, and you can go and look up old records of folks. For a lot of black people – my family doesn’t have a huge family tree or a big history.
Ashley: Because of slavery.
Arisha: Because of slavery a lot of portions of our family’s lost, and to be able to go back and look at census records, you can actually – for my grandmother, and my great-grandmother, and my great-great you can see their names in writing, and then there’s a point for me when there weren’t names for people in my family. There was a tick mark, they were slaves, or someone was classified as mulatto, so I just became fascinated by looking at these old census records, and am now thinking about it in a way that’s like, oh, this is one way to preserve for history that you existed. Hopefully our world lasts long enough so that my triple-great granddaughter is trying to look me up and trying to figure out who I am.
I think that’s one of the cool things about the census, but there are a lot of worrisome things about it, especially under a Trump Administration.
Gabby: I just have a general worry in that is the census just racist? You were just mentioning how young people, people of color are increasingly in transit, and we move around. I’ve lived in Columbus, DC, New York, so I’ve lived in three places within the last 10 years, and within that, three different places in New York, three different places in DC. If we know that, and we still only count people every 10 years, are people intentionally trying not to count people of color, or poor people, or people who are more transient?
I understand the operation of a census and what it takes to get done, so we can’t do a census every year, but if we know a good segment of the population is not gonna be accounted for or are going to be moving, and we don’t move the allocations so much – my union is a healthcare union. The amount of Medicaid dollars that go to hospitals, and nursing homes, and places where we provide services is based on that, and the people who use these programs mostly are largely a lot of people of color, particularly in urban places like New York City. If we were in Nebraska, might be different, but is something that is supposed to count everyone, and it is inherently unfair, so is it racist?
Ashley: I’m not gonna go as far as to say the census is racist –
Gabby: Not helpful, pardon me!
Ashley: Not helpful, but what I will say is that in this Trump Administration there has been something that has been added to the census, which is a citizenship question. Every 10 years, from the last census in 2010 until the census now – I love the census. I just really do, so I get really excited when I talk about it, but they do a lotta testing to make sure that the document and the questionnaire is user-friendly, so that for the exact reason what you were talking about Gabby – it’s hard for people to trust the government and fill out forms. They wanna make sure that that form, when you get it, you can check, check, check, and you get counted, and you’re on your way.
This administration, no surprise, Steve Bannon, Jeff Sessions, suggested to the commerce secretary Wilbur Ross to add “a citizenship question” to the questionnaire to enforce the Voting Rights Act, which is bullcrap. It’s not true, and now there’s a court case that we’re gonna talk about in our next segment, but there is a court case right now to get the question removed. We know that the reason why that question was added was to do exactly what you were saying. In this climate of fear, when the Trump Administration is attacking immigrants, they do not want – particularly brown people with our changing demographics in our country – to be counted.
To put a question on there about whether or not you are a citizen or not, they want to disappear brown and black people who are immigrants in this country, and make them afraid to get a knock on the door to complete their census. In that instance, yes, that question is a racist question that is unnecessary, untested, and unfair, and will harm the count and political representation across the country, which will have dramatic impact: hospitals, schools, yes, but political reapportionment is also decided by the census.
Gabby: Yeah, that’s the biggest thing.
Ashley: It definitely does have some implications. There are a couple things that people can do. They can call their Congressperson and say, “Take the question off.” Congress can fix this, the Supreme Court can fix this – it’s actually gonna make a decision in June. Sorry to get on my soapbox, but we know what this administration is doing, and in this climate of fear, it is trying to fear immigrants to get counted. What do you have to say about that, Arisha?
Arisha: I mean, it’s a lot, and it’s not just undocumented and immigrant communities that I think might have some fear around participating in the census. It’s also lots of black people –
Ashley: Formerly incarcerated people.
Arisha: Formerly incarcerated folks might have concerns about giving any information over to this administration or to this government. Whoever might feel worried about how their information might be used against them, I think will have a cause for concern, but more than that, our people, people of color, young people – those are the hardest to count folks. We see the repercussions of that in terms of whether or not we have a government that looks like us or represents us, whether we have the resources that we need in our communities to actually help our communities thrive.
I’m personally interested – we’ve been talking for years about how people of color are gonna become the majority, a majority minority country. Have we made it yet? We haven’t, let’s check in and see what we are. How have our neighborhoods changed? Once inner city black neighborhoods might not be black neighborhoods anymore. The complexion of our country has changed, and I think it’ll be interesting to see exactly how have things changed the last 10 years.
Gabby: My question previously – was a little bit interested about it being racist –
Arisha: Isn’t everything racist?
Gabby: I think everything’s kind of racist, but that’s another –
Ashley: We live in a society based on white supremacy.
Gabby: It’s fair to say, but how do you politicize the census? It is the most fundamental thing that just allows us to exist as a country, and the extent to which this administration has gone to politicize things that just are not political – like Supreme Court cases around a question around – it just shows you how far our country has fallen, the fact that something we do every 10 years, and have done every 10 years – I don’t know. When was the first census?
Ashley: A long time ago.
Gabby: I just assume you know everything about the census since you were just doing your thesis on it.
Ashley: For the record, that was in 2005.
Arisha: What was your actual hypothesis in your thesis?
Ashley: The conversation was on the multiracial category. In 2000, they let people who identified – normally people would just check “black,” but they were saying – black people, we are very complex folks, so your ancestry.com list –
Arisha: Maybe Irish.
Ashley: You could check “white,” you could check “black,” you could check “Native American.” I found out in 2012 that I had 20 white, Canadian family members that came down from Canada to visit my family in Youngstown Ohio, and I was like, “What?” We’re complex people, and so it was the conversation about that, about whether or not people should check. It wasn’t whether people should or not, but the benefit of having a multiracial option on the census, that was what my –
Ashley: I do wanna say that we are Pod for the Cause, the Leadership Conference podcast. This is the pod squad with Arisha from Color Of Change and Gabby from 1199SEIU. We have a census counts campaign. You can go to censuscounts.org and sign up to get up-to-date information on how you can get engaged, how you can get involved. The one thing I wanna talk about on the census is that it is happening in 2020, and there’s something else happening in 2020.
Gabby: I wonder what.
Ashley: I wonder what that is? The presidential election. How can use the census as a opportunity to inform people about our democracy, but also inform them about getting voting? What do you think about that, Gabby?
Gabby: I think that’s just a perfect opportunity for us to draw a clear connection to you taking this simple action can have a big impact. One of the reasons people are disenchanted with politics or apathetic is because they feel like their vote doesn’t matter. What does this really change, how does this really count? And the census is a opportunity to demonstrate how that counts, and I think this will be very interesting test. Who are the candidates who are talking about the census because people who believe in every person being counted typically believe in every person voting as well.
If a presidential candidate is not talking about the importance of this census, I think we should ask ourselves a question why, and challenge candidates – why aren’t you talking about insuring every person is basically counted? Do you feel like every – are we going back to three-fifths a person? What are we talking about here?
Arisha: I think the link between them is there’s power at stake. This power is on the table, and being counted is another way of flexing – it doesn’t feel like it when you’re taking a survey and checking a box, but it is part of building power for your community. I think that’s why – the other way that that’s linked is that hopefully in a election cycle year, we’ll be talking organizations that do work like the Leadership Conference, or SEIU, or Color Of Change, and the folks that we work for will be talking to voters, but will also be talking to people who are non-eligible voters, asking them to show up and participate. I just think it’s one more way that you can participate in building power for your family and for your community.
Ashley: About the census – it does play a large role on allocations of funds, and Arisha you talked a little bit about this. When you talk about power, let’s get real specific. You take the census, and then districts are drawn for your Congressional office. Sometimes people lose seats for the House of Representatives based on population. We’re from Ohio – Gabby and I – we don’t live in Ohio anymore, so when people like us move out of the state, it changes the population of the state and how many political seats you could potentially have representing you.
It also goes down to a different level, and that’s on the state level. You do the Congressional redistricting, but then they do state House districts. In Youngstown, Ohio, which is typically a blue-collar, Democratic stronghold, depending on how that population is counted from this census will determine what your House seat looks like. We are really, really talking about political power here, and who will be represented.
I also say that I think the census is one stop on our cycle of democracy. If we don’t fill out the census in 2020, who we are represented by will be determined based on the redistricting that I just described. We then have to go vote. Voting is a big part of our democracy, so we can elect people that actually represent us. Then once we elect people, we have a case that’s focused on the census in the Supreme Court right now. Those Senators who are elected, they get to confirm Supreme Court justices that will hear a case like whether or not the citizenship question should be on the census, and right now, Trump has two nominees that he’s been able to get confirmed. One, Brett Kavanaugh, and we don’t even wanna talk about that this time because that was a nightmare of a confirmation. Neil Gorsuch – God willing and the creek don’t rise we don’t have another Supreme Court fight on our hands under the Trump Administration, but it’s all cyclical, and we have to be involved on every single level.
We can’t just vote, we can’t just fill out the census, we can’t just pay attention to one issue or not. It all is connected.
Arisha: We’re stuck with the results for the next 10 years, whether you were counted or not, and so it impacts a lot of things. Like you said, it’s not just one thing. We often at Color Of Change talk about voting as a part of exercise. It might be the stretching, but it’s not the whole thing. You have to stretch, you gotta lift weights, you gotta do cardio, you gotta do all the horrible stuff that none of us wanna do if you’re hoping to keep your body healthy.
Ashley: And tight for summer.
Arisha: It’s almost here.
Ashley: It’s almost here. My summer body is not, though.
Gabby: [Crosstalk] is not ready for summer. That’s okay.
Ashley: One thing I wanna say is an opportunity, particularly for young people – Arisha you mentioned that you worked in a call center. There are job opportunities for people in communities called enumerators, and those are the folks that go and canvas door-to-door to get people to fill out their census. One of the reasons why we want people from local communities to have those jobs is that they’re trusted. If you see the person walking down the street, and then they knock on your door and say fill out the census. There’s a lotta job opportunities, too.
One of the challenges, though, is that the budget has been cut, and so there’s not gonna be as many enumerators, but people of color, young people overindex on social media, so we really do need to utilize the benefit of the online component to make sure people fill out the census.
If you had to give your best plea as to why your non-engaged, young, millennial of color should fill out the census, what would your elevator pitch be and why?
Arisha: I would tell them that so many of the resources that our communities, that our families, that we depend on – these decisions are made based on how many people show up for the census. I also think it’s a huge opportunity to show, and to make a mark – your mark in history – and say, I existed. This is where I existed, this is who I was living with, this is what I was doing at this point in time, and I just think it’s really important to participate. If you have a kid who needs Head Start, or who needs school lunches, participating in the census is – if you wanna actually have hospitals that can cover the emergency needs of your community, participate in the census.
For me, I’m really excited to see how our country has changed. I’m excited to see how people of color continue to grow and hopefully thrive. I just think it’s important for us to participate and show up in the data that’s going to be used to justify a lotta different things.
Gabby: The number one thing I hear from young people, the number one thing I feel is that people don’t see me. They don’t see my full self, they don’t see where I live, you’re not listening – and no one can listen to you or be heard unless you state you claim, unless you say, “This is my country. I’m Gabby, I’m 33 years old, I’m a black woman, I live in Brooklyn.” That is how we are seen, that is how we are heard, and that’s how we are respected.
I will also tell them that all the demands that we’re gonna have for these 2020 candidates for folks that are gonna be running for president – if you want them to see you, if you want them to hear you, this is the first step. I get it. There are lots of people. I been recently having conversations about if we’re in a simulation or not, and if all these things are real, and things like that, and it was just another thing that I hear from a lotta young people –
Ashley: The census is the Matrix.
Gabby: I promise you, this is real, and even if we are in a simulation, even if you don’t believe that the government is a real thing, the census is a real thing. It affects you here and right now, and all these big questions that we have around if we’re in a simulation or if government is – whatever it is, what matters most is that action that you can take right now, and this is something that you have to do.
Arisha: Also if you don’t participate in the census, someone is more likely to come knock on your door and try to get your information anyway, so if you wanna avoid the enumerator, if you don’t like people coming to knock on your door, just go online.
Gabby: Actually just fill out a form.
Arisha: Just go fill it out.
Ashley: Everyone should fill out the census regardless of your citizenship status, regardless if you’re formerly incarcerated or not. Everyone deserves to be counted. If you want more information on how to be counted, visit censuscounts.org to get late-breaking news and updates on how to get engaged. Thank you to my girls, Arisha Hatch from Color Of Change and Gabby Seay from 1199SEIU for holding it down today on the pod squad. Coming up, we have a special guest with us today: Dale Ho, the Director of the Voting Rights Project at the ACLU.
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Ashley: Welcome back to Pod for the Cause, where we talk all things census. The census is probably one of the most important civil rights issues of our time. It happens every 10 years. The last one was in 2010. This next one is in 2020, and recently the Trump Administration added a question on citizenship status, which we know in this climate of fear is probably gonna depress the count. Today we have a guest that argued in front of the Supreme Court recently, and is really working hard to defend our civil and human rights, and get this question off of the census. It’s the Director of the Voting Rights Project at the ACLU, Dale Ho. Thanks for joining us today, Dale.
Dale: Thanks so much for having me.
Ashley: Let’s just jump right into it. Can you tell our listeners what this case is about and why you filed it?
Dale: The census, as you said, happens every 10 years. It’s the basis for almost everything we do statistically as a country. It’s in the Constitution, Article I, Section 2, Clause 3. It says that every 10 years we’re gonna have a count of the total population of the United States. That includes everyone: adults, children, citizens, non-citizens, and in the Constitution, the reason why it’s there is to divvy up representation in the House of Representatives in Congress and votes in the Electoral College among the states. Each state is supposed to get seats in Congress and thus votes for president based on the number of people who live in those states.
Ashley: Doesn’t matter if they’re a citizen or not.
Dale: Doesn’t matter if you’re a citizen or not.
Ashley: Just people.
Dale: Just people. That’s in the Constitution. That’s been the case since the founding, and more recently the federal government has used census numbers to divvy up about $900 billion in federal funds annually for things like education, infrastructure, healthcare – all based on, again, the number of people because every state’s needs are gonna depend upon how many people live in those states.
What the census hasn’t done for the last 70 years is have a question about citizenship because what the Census Bureau professionals have recognized – and this has been under both Republican and Democratic administrations – is that if you add a question on citizenship, that’s gonna scare some people from participating in the census, and if we get an inaccurate count, that means our distribution of political representation will be inaccurate, and our distribution of federal funding will be inaccurate, and everyone who lives in a community with non-citizens and immigrant populations will suffer as a result.
We’re not just talking about the non-citizens themselves, the immigrants themselves. Everyone who lives in those communities and states will suffer.
Ashley: In this day and age with our country, which is made up of immigrants, immigrants live everywhere, so every community, regardless of whether it’s urban or rural, coastal state or in the Midwest, will be impacted because of this question.
Dale: That’s absolutely right, and it’s not just gonna hurt so-called blue states like California and New York. It’s gonna hurt states like Texas, Arizona, Florida – states that have large noncitizen populations. We’ve known for decades that this would be a really bad idea, and then all of a sudden last year the Trump Administration announced boom, we’re gonna put this question on the census where it hasn’t been for seven decades.
Ashley: When that happened, you basically said, “Not on our watch.”
Dale: That’s right.
Ashley: We’re not letting this happen, and we are gonna take this to court. So what’d you do?
Dale: We filed a lawsuit. We represent four immigrants’ rights organizations, including the New York Immigration Coalition and Make the Road, both located in New York. We filed suit in federal court to try to get this question knocked off the census because we know how damaging it’s going to be to this basic, basic Constitutionally-required count of our entire population.
Ashley: Once you filed this suit, you argued the case, and I thought you won.
Dale: Well, we won the trial. We were in a trial court in Manhattan, in federal court. We had a trial that went on for about three weeks. We put on evidence about just how bad this is going to be for the census, evidence from people who work in immigrant communities, and from political scientists, experts on survey research. We have a former Director of the Census Bureau testify on our side. All explaining that it’s just gonna wreck the census, make it totally inaccurate, and the judge heard that evidence, and looked at it really carefully, and then issued a 300-page opinion explaining why we were right.
Ashley: Some things came out also during this case when you were in what we call the discovery phase, and trying to build your evidence. Can you tell our listeners what the administration that decided to add – the Trump Administration said they were adding this to enforce the Voting Rights Act. When you dug a little deeper, what’d you find?
Dale: The Trump Administration said that they need to put this question on the census to enforce the Voting Rights Act, and that in and of itself I think just raises a huge red flag because the Trump Administration hasn’t done a single thing to enforce the Voting Rights Act. They’re the first administration since the Voting Rights Act was passed in 1965 that has not filed a single case to enforce the Voting Rights Act. It’s obviously not a priority for this administration, but even just leaving all that aside, we’ve enforced the Voting Rights Act for over 50 years without a question about citizenship on the census.
Sometimes you do need information about citizenship to protect voting rights. You need to know how many citizens live in a particular place when you’re drawing districts to make sure that those districts fairly represent, really, communities of color and their voting power.
Ashley: I’m not sure that communities of color is really what Trump is too concerned about.
Dale: Just that on its face – the notion that the Trump Administration is trying to protect the voting rights of communities of color – that’s just bananas. There’s just absolutely no way. Just on its face we know that this just doesn’t pass the smell test. They say that they got the idea in December 2017 when the Department of Justice sent a letter to the Census Bureau saying, hey, we could use this question to enforce the Voting Rights Act. The head of the Commerce Department, which oversees the Census Bureau – Commerce Secretary Wilbur Ross – he testified in Congress that he started thinking about this issue when he got this letter from the Department of Justice in December 2017, that he didn’t talk to anyone in the Trump White House about it, and that he was taking it really, really seriously.
After we sued, we got information through the discovery process, as you mentioned, including emails of Wilbur Ross, which showed that for months, long before the Department of Justice ever sent that letter to the Census Bureau, he was demanding that they add this question on citizenship to the census. He wasn’t talking about the Voting Rights Act; he wasn’t talking about protecting communities of color. In fact, he was talking about doing exactly the opposite. He was complaining that states get representation in Congress because of their immigrant populations, and that that was supposedly unfair to citizens.
He lied about why he added the question. He said he wanted to protect communities of colors’ voting rights, but in fact, it’s the opposite. He wanted to harm those very communities. He lied about when he started thinking about it – it was at the beginning of 2017, not at the end. And it came out that he was talking to Steven Bannon about this, so he lied about whether or not he was talking to the White House.
Ashley: We all know Steve Bannon. He doesn’t work at the White House anymore, but his agenda is totally anti-communities of color, anti-immigrant, anti-women, anti-LGBTQ people, so the connection with this question and Steven Bannon is a huge red signal that something ain’t right here. The opinion came down from the judge in the trial court, saying take the question off, and then there was appeal, and you found yourself in the Supreme Court.
Dale: That’s right. We won the case sometime in January of this year. The judge had looked at all the evidence, said, “This doesn’t add up. They say they wanna do this to protect the voting rights of communities of color, and that just doesn’t make any sense. It’s not reflected in the internal emails that the Commerce Department including Secretary Ross were sending around, and that it’ll wreck the census.” Found that California, Texas, Florida, Arizona, Illinois, and New York were all at a high risk of losing representation in Congress if this question were added.
The government itself predicted that 6.5 million people would not respond to the census if the question were there. Just to put that in perspective, 6.5 million people – that’s like if you took our seven smallest states and combined all of their population.
Dale: It’s a big deal.
Ashley: It’s about one out of 50, basically.
Dale: It’s a lotta people.
Ashley: It’s a lotta people.
Dale: It’s a lot of people. It would be like if the state of Missouri just went poof, just vanished. If they were a state, those 6.5 million people, they’d have, I think, eight representatives in Congress and 10 votes in the Electoral College for president, so we’re not talking about a small thing. We’re talking about a large number of people, mostly people of color, so we know exactly which communities are being hurt by this.
The judge ruled in our favor, but then the federal government, the Trump Administration, took an appeal to the Supreme Court. They ran there and the asked the Supreme Court to review the case really, really fast. Normally it takes years for a case to get from the trial court up to the Supreme Court, but we had the decision in January, and we ended up getting heard in the Supreme Court in April, so just about three months, which is just crazy.
Ashley: Yeah, litigation usually takes years, but when you have an agenda, you try and expedite things, right?
Ashley: Tell us about that day. First of all, I was talking to you earlier, and I was saying it’s so impressive that where you are in your career, and you get to argue in front of the highest court of the land. It happened a couple weeks ago, but first – thank you for doing that, and for fighting for our democracy ‘cause we need people like you.
I think it would be really encouraging for our listeners to also know that people like you are out there fighting, and they, too, can follow career paths of being an attorney and really fighting to save our democracy, but take us to that day. Take us in the courtroom. You wake up – you gotta wake up early, probably, just to get right – your suit is pressed. You pick your tie. What’s my power tie for the day? You show up in front of the justices, and what happens?
Dale: I’m not gonna lie, it was a new suit, new tie.
Ashley: I know that’s right. That’s Sunday’s best! If I was going, I might have had a little hat or something, but you got to look sharp. It’s a big day.
Dale: It was a big day. I’ve been in court a lotta times, but I had never argued in the Supreme Court. I’ve had a couple of cases up there, sat at a table, carried someone else’s briefcase, but this time I got up to the podium – it was a lotta work. Normally you have a few months to prepare for just the argument itself. Maybe you have half a year to write the briefs, and then a few months just to prepare for the arguments. We had, I think, between when we won in the trial court and when our brief was due, we had maybe two months before our brief was due, and then I had three weeks after that to prepare.
Dale: Yeah, what would normally be maybe three or four months of preparation got compressed into three weeks.
Ashley: Can I ask you a question? How many people does it take to prepare for something like that? We see you. You get to be the face, but what army is behind you to get this right?
Dale: It was absolutely an army. It was not me by myself at all. We had a huge team here just at the ACLU of six lawyers working on the case. We had co-counsel from a law firm, and they had a big team – I think around 10 lawyers who were working on the case. Our case wasn’t the only case, actually. There was a case filed by the Attorney General of New York on behalf of 18 states, and a number of cities, and they had a big team working on the case too. We got advice from a dozen more people who were helping me prepare for the oral arguments. It really is the kind of thing that takes a village. It’s not like I was some kind of superhero by myself up there, arguing the case.
Ashley: In your new suit.
Dale: I was the one standing there, but there was a whole army of people whose work went into it, and we were working around the clock to get ready for this because there’s no do-over.
Ashley: Right, okay, so you’re in the court – I’m sorry, I cut you off, but I wanted to just get a sense – it’s interesting to see how the sausage is made, too. You’re at the court, in front of the justices, it’s go time – what happens?
Dale: You’re at the Supreme Court. It’s not a huge room, actually. It’s pretty small, actually, and they pack as many people as they can fit in there, so there may be about 400 people. I don’t know if that sounds like a lot or not, but it’s not like a stadium or something, but a lot of people who work on voting rights were there in the room, a lotta national media are there. It’s being recorded. The pressure’s on. You know a lotta people are gonna be watching your performance pretty closely.
Then the podium itself – it’s closer to the justices of the Supreme Court than any other courtroom that I’ve every been in, in terms of how close you are to the actual judge Sometimes you’re 20, 30 feet back from the judge. Here you’re maybe 10 feet away –
Ashley: Wow, and are they sitting higher than you?
Dale: They’re sitting higher than you –
Ashley: Looking down.
Dale: They’re looking down, but you’ve seen all these people on TV, you’ve read about them, you’ve heard their voices – at least if you work in civil rights work regularly – and it’s a little intimidating. All these people you’ve seen, and to be that close to them, and for them all – they can interrupt you at any time, with any question, on any subject. It was an intense experience.
Ashley: You were obviously well prepared, but what was the toughest question you got asked that day?
Dale: To be honest, we had practiced so many times – I think I had six practice sessions, each of which I was being peppered with questions for at least an hour – and we had heard every question. We’d come up, I think – with that army of lawyers – we’d come up with just about anything that they could ask, so there weren’t really any big surprises that day. It’s obviously still difficult.
One thing that did surprise me, I will say, and it wasn’t a question to me, but for some other people, is that some of the more conservative justices – who normally say they don’t care what other countries do. All they care about is what United States law is, and what it says, and what it requires, and what our history is. We had Justice Kavanaugh, for example, and I think Justice Gorsuch, asking questions about what the United Nations recommends for censuses, which is kind of bizarre.
They don’t normally care about the international context, and here there’s a UN document that talks about the importance of knowing how many citizens are in your country, and they seized on that. It was interesting that these conservative justices who don’t normally seem to care much about international law were seizing on it at a time when maybe they thought it served their side.
Ashley: And they’re the two newest justices on the court, Gorsuch and Kavanaugh.
Dale: Both appointed by Trump.
Ashley: Trump, yes, so we pretty much know what their agenda probably is, too. What do you think is gonna happen? Or is it bad luck to – I mean, we hope we win.
Dale: I don’t like to predict. We know right now that, in civil rights cases, this is a very difficult court for us. There’s no way of sugarcoating that. In a lotta these cases, people are trying to target Chief Justice Roberts as potentially the swing vote here, and he isn’t someone who has voted on the side of civil rights plaintiffs very frequently over the course of his career.
Ashley: He gutted the Voting Rights Act.
Dale: Gutted the Voting Rights Act six years ago, and if you go back in his career, way back to the early ‘80s, when he was in the Reagan Administration, he wrote memo after memo at that time urging Reagan to veto a renewal of the Voting Rights Act. He’s not someone who, historically, the civil rights community has regarded as a friend, and the fact that he’s the swing vote now I think speaks volumes about where the court is.
We know it’s hard. All that being said, I think we put on a really strong case. We put on the best case that was possible. There isn’t a single person who has worked on a census before who thinks that this is a good idea.
Ashley: Democrat or Republican, Independent.
Dale: Democrat or Republican, it’s just everyone who has any expertise on trying to get a count of the population knows that this is a terrible, terrible idea, and all the evidence is there on our side. It’s just a matter of whether or not the court is going to listen to that evidence.
Ashley: Do you think that it could be just a clear-cut keep it on, take it off, or is there a in-between space that might happen, do you think?
Dale: It’s possible that the court could say, “We don’t think you did this for the Voting Rights Act. We wanna know what your real reason is, and if you tell us what the real reason is, then we’ll evaluate at that time whether or not you had a good enough reason to do this.” That’s possible, but I think it’s most likely that the court is either gonna say on or off.
Ashley: There were other lawsuits that were filed, so what happened with those? Do they all come together? Where’s the process with the other lawsuits?
Dale: There were a total of six lawsuits filed, and this, I think, speaks to the village that we were talking about that it takes to build a case like this. Two filed in New York, two filed in California, two filed in Maryland, and each of those pairs of cases were heard together, so there was a trial in New York, a trial in California, trial in Maryland. In every one of those trials, the judges found – so we’re talking about three different federal judges – all found that it would wreck the census, and the administration basically lied about why they wanted to do it, that it had nothing to do with the Voting Rights Act.
Our case was decided first, so our case and the other case from New York are the ones that went up to the Supreme Court and were heard by the court. I think whatever happens there is going to resolve everything.
Ashley: I’m here with Dale Ho, who is the Director of the Voting Rights Project at the ACLU. He argued to remove the citizenship question off of the 2020 census in front of the Supreme Court just a few weeks ago, and we’re having this important conversation because –you talked a little bit about this at the earlier part of our conversation, about political representation, and the – what was it – $900 billion that is distributed across the community. There are other people, like businesses and hospitals, that use this information.
Let’s just play this out. Let’s say that there’s more conservative justices on the court, there’s five of those versus four of the ones that we think might vote to take it off. We have to do this scenario planning in our real life and in our jobs ‘cause we owe it to the public to make sure we’re prepared. If they don’t take it off, what else can we do? Do we have any other recourse to try and get this question removed?
Dale: Congress could always pass a law that requires getting it off, but I think that would be really tough in this political environment, and then of course the president could veto any law, any bill that gets passed. I think you made a really good point that it’s not just the government that uses census data. Businesses use census data.
There was a brief that was filed in the case by Univision, Levi’s, Uber, and Lyft, and a bunch of other businesses that said that if this question’s on here and it wrecks the census, it’s gonna screw up our business plans in a lot of ways because we make decisions about where to expand, where to seek out our customers based on census data that tells us where populations live, and if that data is inaccurate, it’s gonna make life harder not just for government but also for businesses.
Ashley: Congress can act.
Ashley: They just haven’t.
Ashley: No surprise. Okay.
Dale: No surprise.
Ashley: We do have an opportunity that regardless of what the decision is, we can push Congress to take action and to try to remove this question because the count is going to happen.
Dale: That’s right.
Ashley: We have to do it because of the Constitution.
Dale: It’s happening next year, next April.
Ashley: Next April. Let’s say the question is on and I am not a citizen, and I get the form. What can we tell people about filling it out?
Dale: The first thing we have to tell people is that it’s required by law. Everyone is legally obligated to fill out a census form and to answer every question on the census. I don’t want there to be any confusion about that. Attorney General Sessions at one point testified in Congress, “If you don’t like it, you don’t have to answer the question,” and that was just really remarkable ‘cause he’s the nation’s chief law enforcement officer and he’s getting the law wrong about what people are required to do.
We’re required to answer the census. Everyone should know that responses to the census are confidential. The Commerce Department has it; it doesn’t go to immigration enforcement, or anything like that. It can’t be shared, so you should feel confident that your information will be secure. Sometimes we hear people talking about how they wanna boycott the census or maybe boycott the question because they’re angry about this question being put on there, and my message to those folks is that if you do that, then the Trump Administration’s already won.
They put this question because they want to drive down census participation in communities of color, and in immigrant communities, and if you don’t respond to the census, or you don’t answer the question because you’re angry about it, then you’ve basically given up the fight. It’s really important that everyone respond to the census because that count is gonna determine how much representation and how many federal dollars your community gets.
Ashley: We need those because we need the schools, we need the hospitals, we need the roads, we need all the things that make communities thrive and prosper.
Dale: And we need the votes in Congress to bring about some change eventually.
Ashley: The passed laws that would take this type of question off.
Ashley: I just wanna thank you for being on the show today. The census is so important. I wanna thank you for your leadership, and in guiding this lawsuit to the Supreme Court. We support the work you do. The Leadership Conference is in close communication with the ACLU, so thank you and the whole army of lawyers that worked to fight this case. We are not gonna let go. If this question is still on, we’re gonna fight, fight, fight to get it off. Thank you my guest, Dale Ho, the Director of the Voting Rights Project for the ACLU. Be counted, get counted, fill out your census form.
Coming up, I’ll hit you with some real talk during our hot take, where I get a few things off my chest in three minutes or less.
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Ashley: Welcome back everybody! It’s Pod for the Cause. I’m your girl, Ashley Allison, the host of the show, and we have covered everything you could imagine about census. We had Dale Ho talk about the citizenship question that’s in front of the Supreme Court, the pod squad talked all things census to them, and it just had me thinking that after the 2016 election, the resistance was real.
We took to the streets. We went to airports. We signed petitions. We did anything we could do to stop the inhumane, racist policies of the Trump Administration. That we included people with disabilities, immigrants, black and brown people, women, LBGTQ people, indigenous people, and all of our allies. We said, “Not today.” We will not be silenced. We will not disappear. We are here, so not today Trump.
The Trump Administration isn’t hiding that they wanna take our power away bit by bit. They don’t want you to vote. They don’t want your voice heard. And they don’t want you to count. To be clear, they don’t want you to fill out the census. They hope that the addition of the citizenship question will disappear six million people from this country. But not today.
They want us left with decision-makers that do not respect us. People who literally believe Brown vs Board of Education was decided wrong, which would mean segregation was right. People who put babies in cages? I thought they believed in family values. Experience life as a black woman, or as a immigrant, or a queer person, or a person with a visible or invisible disability. You know that on a daily basis, your existence is disrespected.
What do we say to bigots? Not today. What do we say to white supremacists? Not today. What do we say to all the haters? Not today. You will not take away my existence through hate, fear, and definitely not a question on the census.
Listen, I like to think I know all things, but I really don’t know how the Supreme Court will rule on whether or not to take off the citizenship question, but let me pause here, and if you’re listening, Justice Roberts, take it off. You can do it. I believe in you.
Whether or not the justices take it off, I do know we can make our voices heard. Baseline, get counted. Fill out your census form as completely as you feel comfortable, and then help others in your community get counted. If you wanna know how to do that, visit censuscounts.org to find out more information about how to get plugged into our campaign. We need to be heard, we need to be seen, and we have to be counted.
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Ashley: Thank you for listening to Pod for the Cause. For more information, please visit civilrights.org, and to connect with me, hit me up @podforthecause on all social platforms. Be sure to subscribe to our show on your favorite podcast app and leave a five star review. Until then, for Pod for the Cause, I’m Ashley Allison. Remember, a cause is nothing without the people.
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