Shirley Ann Higuchi: Administration’s census case is built on a foundation of lies

(Francisco Kjolseth | The Salt Lake Tribune) The Utah Museum of Fine Art hosts "Chiura Obata: An American Modern," major touring retrospective of Japanese-American artist (1885-1975), whose work captured Western landscapes and his time at the Topaz War Relocation Center (internment camp) during World War II. Exhibit opens Friday, May 25. Pictured is Arrivals Welcomed to Topaz, October 1, 10:10 a.m, 1942, Ink on paper.

After President Franklin Roosevelt signed Executive Order 9066 on Feb. 19, 1942, military and government officials gathered to plan how they could find, round up and incarcerate 120,000 Japanese Americans whose only crime was to look like the United States’ new enemy.

Their main weapon was the 1940 U.S. Census in which all residents of the United States listed what country they were born in. For Japanese Americans, listing your nation of birth as Japan automatically meant they were not citizens, because the country had used a racist immigration law to ban Japanese immigrants from becoming citizens.

My grandparents on both sides of my family listed themselves as having been born in Japan, while their children were born in the United States. But they were all clearly as being of Japanese descent.

So, the government took those census forms and used them to find and detain Japanese Americans and send them to 10 prison camps around the country. Then the government lied about it for 50 years. It only apologized after academic researchers proved what had happened.

All of that makes what has transpired in federal court over the last week so disappointingly familiar.

This time, the Trump administration wants to add a question about citizenship on the 2020 U.S. Census form. Its explanations for this have varied from a concern over accuracy to a desire to make sure the rights of Latino voters are protected.

These explanations, first pitched by Commerce Secretary Wilbur Ross, whose department oversees the census, never made much sense. The census has not used a citizenship question since 1950, and the voting rights of Latino voters have risen steadily.

Now, documents filed in a federal lawsuit against the Commerce Department have shown that the government’s explanation now, just as in 1942, is based on a series of misstatements. A 2015 memo written by Thomas Hofeller, a Republican analyst on redistricting, showed how a citizenship question would give Republicans more data to use to draw gerrymandered legislative and congressional districts to limit, not enhance, Latino voting.

Hofeller then pushed his plan on the transition team advising the incoming Trump administration. He later wrote a key section of the Justice Department letter that claimed the citizenship question was meant to help enforce the 1965 Voting Rights Act.

None of this information was provided by Ross, the Commerce Department or the Justice Department that was allegedly so concerned about minority voting representation. It was only revealed after Hofeller’s estranged daughter was helping her mother go through the personal effects of Hofeller, who died last August, and discovered a trove of computer hard drives. Those drives contained Hofeller’s memo and other documents that found their way into court this week.

The U.S. Supreme Court now has the new documents. It is weeks away from ruling on the case challenging the citizenship question, which was argued in April. It is also not the first time the court has heard a case with grave implications for Japanese Americans in which false or incomplete evidence has played a role.

In 1944, the court made one of its most infamous rulings in the case of Korematsu v. United States. Fred Korematsu was a Japanese American welder who lived in Oakland, Calif., at the time of President Franklin Roosevelt’s Executive Order 9066 that authorized the incarceration of Japanese Americans. He fought the order to leave the West Coast and was later arrested and convicted for violating that order. He was detained the federal concentration camp in Topaz, Utah, and appealed his case to the Supreme Court.

The court ruled 6-3 on Dec. 18, 1944, that the incarceration was legal. It is routinely considered one of the worst rulings in the court’s history, along with the civil rights-related decisions of Dred Scott and Plessy v. Ferguson. It was also decided on false information.

In its arguments against Korematsu, the government relied on claims that military necessity required the removal of Japanese Americans from their homes and businesses. But documents uncovered in 1982 revealed that no such necessity existed; by the time the government filed its case before the Supreme Court, its officials knew that multiple agencies had shown that Japanese Americans posed no security threat.

But the court did not know about that evidence when it ruled. If the nine justices had known that, their ruling would most likely have been different. When a federal court did learn about the false information, it overturned Korematsu’s original conviction.

Now, we all know the administration’s census case is built on a foundation of lies. The proposed census question has a political, not a government objective. The court now has the power to avoid the repeat of another misuses of census data that imprisoned one group of people 77 years ago and threatens to disenfranchise another now.

(Photo by Brian Smyer) |Shirley Ann Higuchi

Shirley Ann Higuchi is a Washington D.C. attorney and past president of the District of Columbia Bar. She chairs the Heart Mountain Wyoming Foundation (www.heartmountain.org), which runs an interpretive center at the site of the camp where her parents were imprisoned. Higuchi is the author of an upcoming book about the Japanese American incarceration during World War II. Follow her on Twitter at @HiguchiJD.