TRANSCRIPT

ELIZABETH WYDRA: Hello, I’m Elizabeth Wydra, President of the Constitutional Accountability Center and welcome to today’s Purple Chair Chat. We call these conversations Purple Chair Chats because normally, we would be coming to you from the iconic purple wing chairs of our  CAC Washington, DC offices. But we like so many of you, have been working from home during the covid-19 pandemic and making do. We know that so many have lost so much and struggled so much during these difficult times, and I sincerely hope that you are staying safe and well and trying to keep hopeful. Purple Chair Chats tackle the important legal, political, constitutional moments of the day and today is a very special edition because we are marking Constitution Day 2021. September 17th is a federally designated holiday as Constitution Day and Citizenship Day commemorating the signing of the US Constitution in Philadelphia on September 17th, 1787. And to celebrate those who have become US citizens and are taking steps to become citizens. So we at CAC love Constitution Day. The Constitution is, you know, what we do every day. It’s kind of our jam, but there are definitely, and, unfortunately, reasons for somber reflection as we mark Constitution and Citizenship Day this year. We just saw the Supreme Court disregard the Constitution’s guarantees of liberty that protect reproductive choice, which are so integral to women and other people who need to access abortion, have an equal citizenship, status crucial to their being able to determine their own destinies, and to step onto the public square as true meaningful equals in society. 

We also think of the promise of equal protection of the law written into the Constitution, but routinely denied in the streets by racist policing practices that are insulated from justice by terrible judge-made doctrines like qualified immunity. Parts of the Constitution seem in tatters today, but there are some bright spots, despite ugly and relentless attacks on the constitutional promise of equal citizenship at birth. The principle of birthright citizenship remains a bulwark against racist, manipulation of who gets to be an American citizen and despite persistent scare tactics and attempts at marginalization democratic participation of diverse communities is growing. With the political power of Black, Latin X, and Asian American communities, in particular, increasing. Joining me to talk about all of this and more is Nina Perales acclaimed civil rights lawyer and Vice President of Litigation for (MALDEF) the Mexican American Legal Defense and Educational Fund. Nina has won crucial victories in the Supreme Court on voting rights and redistricting. And is a key movement leader in the fight for civil rights and voting rights. Thank you so much Nina for joining me today. 

NINA PERALES: Thank you for having me, Elizabeth. It’s such a pleasure. 

ELIZABETH WYDRA: So, I just wanted to open by asking you generally, you know, what, your thoughts are as we go into Constitution Day and Citizenship Day. 

NINA PERALES:  Well, thanks. I love Constitution Day, Citizenship Day. I spend a lot of time thinking about citizenship, in my work, both the rights of Latinos citizens as well as non U.S. citizens. And it’s always a pleasure to dip into the Constitution and look at what it says about citizenship. The U.S. Constitution talks about citizenship and it recognizes that we are a nation of immigrants when it was written. For example, if you look at things like eligibility to serve in federal office, you see that you have to be a citizen for seven years to serve in the House and nine years to serve in the Senate. And also that you know, the President has to be a natural born citizen of the United States. 

And then, of course, we have even juicier, the Amendments, and the wonderful critical provision in the 14th Amendment of birthright citizenship. Meaning that if you’re born in the United States, you are a citizen of the United States. And it’s really crucial to a lot of the work that we do here at MALDEF, and there are also lots of references later on in the Amendments to the right to various different folks to vote. So, for example, the right to vote without any kind of burdens based on race in the Fifteenth Amendment, the right to vote for women in the 19th Amendment, the poll tax and the 24th, and getting rid of the poll tax in the 24th. And then finally, anybody over the age of 18, being able to vote in the 26th Amendment. 

And so, the Constitution has a lot to say about citizenship and the rights of citizens. In the past few years though, we’ve really seen an attack on the idea of citizenship, particularly in the Latino community and also the voting rights of U.S. citizens. So for example, in 2019, in the summer, we had President Trump publicly toying with the idea of ending birthright citizenship and connecting that very directly to Latino immigration to the United States from the south and talking about people walking across the border and saying that the children of people who come from the south should not be U.S. citizens.

And we also had other initiatives that may have seemed less explicit, but were really attempts to undermine the political power of Latinos and Asian Americans. For example, by attempting to put a citizenship question on the U.S. Census and then when that was thwarted, really shifting to the idea of subtracting political power from communities, and areas that had a higher number of non U.S. citizens. And subtract the political power, not just of non U.S. citizens, but of the citizens who live in and around non U.S. citizens, which are predominantly Latino and Asian-American. And these ideas are really playing on ideas that have been around much longer, but which got more widespread I think and more explicit during the past several years. 

These ideas that people of color perhaps are not quite as much U.S. citizens as white people are, right. So some examples would be saying that Barack Obama was not a U.S. citizen and that he was not born in the United States. This attack I think was tied very much to the fact that he was Black. And also, attacks on the idea that if you are Latino that you’re not really as much of a citizen as others. And we saw this in a case that we had to bring in 2019 in Texas where the Secretary of State launched a voter purge of a hundred thousand registered voters in Texas. Based purely, he selected them for the voter purge on the fact that they had previously held a green card, and had a driver’s license. 

It’s very legal and very typical to have both a green card, to be a lawful permanent resident, and to have a driver’s license. Those two things go together. Then you become a naturalized citizen and you register to vote and you proudly participate in elections. What the Secretary of State did was target a hundred thousand naturalized citizens on the basis of their previously having a driver’s license and then saying that they were not U.S. citizens and they needed to be taken off the rolls. Luckily, our lawsuit was successful in a federal court, stopping that effort. But now we have a newly enacted voter suppression law in Texas that takes direct aim again at naturalized citizens by severely curtailing the right of naturalized citizens to bring somebody with them to help them cast their ballot at the polls. So the new voter suppression law cuts back on the rights to voter assistance in the polling place. These types of efforts are connected to narratives about the idea that Latinos, Asian-Americans, African-Americans are not legitimate voters, are not U.S. citizens. People who claim voter fraud, when they hear, for example, somebody speaking Spanish in the polling place or asking for language assistance in the polling place. And even, you know, the increased rate of just Latinos walking down the street and having somebody scream at them “go back to Mexico”, right? Which is another way of sort of emphasizing this idea that this person, because they are Latino is not a citizen of the United States, are not from the United States. 

ELIZABETH WYDRA: Thank you for that discussion of, you know, the both the kind of the way, the principal is embedded in the document and then the way that it plays out and is challenged all the time on the ground. And I think you get really to an important point that this is, you know, a struggle over defining what it means to be an American. And, you know, part of what I find inspiring about the birthright citizenship protections in the Constitution making clear that no matter whether your ancestors came over on the Mayflower, whether they were forced on a slave ship, whether they came, you know, with nothing, but what they could carry with them, over the border as refugees seeking asylum. If you are born here, you are equal. You are equally as American as everybody else and that is a somewhat radical principle that is written into our Constitution, unquestionably, but because it does have that radical equality element to it is constantly being challenged by those who want to limit, for reasons of political power, or just straight-up racism who can be part of that American family. And I think it’s interesting the way that that ties directly to political power. And that’s, you know, a lot of what you’re talking about when you work on these voting rights issues. What are we seeing right now? What are the tactics that are being undertaken, in states like Texas, where you just testified about redistricting and other types of voter suppression and intimidation?

NINA PERALES: Well, it is certainly true that the face of the American electorate is changing, you know, the 2020 Census as difficult as it was to carry out, because of the pandemic, because of threats around citizenship, we still saw the Census reporting that there are 62 million Latinos in the United States. Right? And the rate of U.S. citizenship for Latinos is close to 80% and so this is a direct challenge to those who don’t want to see the electorate change. And so the types of measures that we see are largely intended from state to state to freeze the electorate in place and that sometimes means even preventing white folks from registering to vote. As long as the kind of current electorate is stuck in place. 

So for example, in Arizona, back in the mid-2000s Arizona adopted a law that said you had to provide documentation and that meant, you know, a birth certificate or some other kind of document on file. And this prevented a lot of people from registering to vote in Arizona, in the mid-2000s. The largest numerical group was white folks because they are the majority of folks in Arizona, but it also had a disparate impact on Latinos being able to register to vote and we litigated that case, took it to the Supreme Court and won a victory. That at least allows people to use the federal voter registration form, and its processes to register to vote in federal elections in Arizona, but it was very much about making sure that new young Latinos did not get on the voter rolls. And I also gave an example before about Texas trying to cast a hundred thousand registered voters off the voter rolls. Specifically, because they were naturalized U.S. citizens. Because the only people who met that criteria were naturalized U.S. citizens. In Texas, it’s about half Latino, half Asian American, and so the types of measures that we see, make voting or voter registration more difficult. And I believe just primarily to prevent the electorate from evolving into a younger more diverse group of voters.

ELIZABETH WYDRA: You know, that’s how democracy works. It ebbs and flows. And you know, you can see entrenched power and not wanting to give that power to a younger more diverse electorate. We’ve been talking a lot about voting rights, which obviously are protected in the Constitution, and citizenship protected in the Constitution. But one of the other things that has come up recently relates to the Constitution’s requirement that you have a Census every 10 years. And this is in the Constitution and it is an important part of who we’re talking about who gets to be an American. It’s an important part of declaring who is part of We the People that both constitutes and is represented by the government and that includes voters. We talked about the importance of their power, as well as non-voters. And so the count of who the people are is an incredibly important part of American democratic society, but we did again, during the Trump years, in particular, see an attack on the constitutional process of taking a Census, particularly aimed at trying to intimidate immigrant communities. And it was a hard-fought battle, but eventually we won on the law, but I think the concern and you can tell me is that, you know, some of that at intimidation just simply by having a question about whether you’re a citizen or not maybe did some of the work for them for those who wanted to suppress the political power and representation of communities. Can you talk a little bit about that, Nina?

NINA PERALES: Yes. Definitely. When the Trump Administration announced that it was going to add a citizenship question to the U.S. Census it had a really big intimidating effect on the Latino community and the administration knew this because in some of the trial runs that they were doing for the Censes, the Census takers were reporting that when they touched on questions of citizenship and immigration. There was one Census taker, who wrote an account back and said that the man that they were interviewing in his own home got up and walked out of his own home and left the Census taker behind sitting in the living room because that individual did not want to talk about questions of citizenship and immigration status as part of giving information in the Census. And so yes, even though there was successful litigation that meant that the administration couldn’t put a citizenship question on the Census, there had been so much coverage and so much talk about it and the effects that it would have on people that there was quite a bit of hesitancy to participate in the Census. And then on top of that, we had the pandemic, and as a result, it was very difficult for the Census to do what’s called non-response follow-up, which is to go to people’s homes, knock on their doors and ask them. Hey, we see that you haven’t responded yet to the Census. Can you please just give us that information, will stand outside your door. There were a lot of people who wouldn’t open the door and then also the Trump Administration truncated non-response, follow-up claiming that everyone had been counted. And we know that there’s an undercount where I am right now where I live in Texas. And we’re seeing the predominantly Latino border county Census data coming in, and it’s much lower than what we know to be reality on the ground in terms of Latino population. So, it has, I think it was a one-two punch, the citizenship question and then also the pandemic made it incredibly difficult to count, Latinos in this Census.  

ELIZABETH WYDRA: And can you say more about what that means because, you know, it’s not just we want a head count for the sake of having a head count. The Census is incredibly important for a lot of reasons. And, you know, I think the Census sounds so dry and boring that sometimes we don’t understand the way in which it is actually crucial. And so, it’s completely understandable that many people did not want to open the door to someone during a pandemic when they’re worried about immigration and certainly that every reason to fear the Trump immigration authorities with some of their enforcement techniques, but can you talk about why the Census is important and what role it plays in kind of our government and our democracy?

NINA PERALES: Yes, to do that I have to quote my favorite political scientist Cardi B. She said that the Census was about three things: money, power, and respect. 

ELIZABETH WYDRA:  And that is exactly right. 

NINA PERALES: Nobody could have said it better and this was part of an effort of course, to speak to the Latino community and to other communities to encourage Census participation, but it does. It is everything about money, power, and respect. So money, because Census data is used to distribute federal funds and other funds as well to communities. If you are under-counted in the Census, you’re going to get less dollars for your community for everything from food programs, education, infrastructure. You name it. A lot of these formulas are based on Census data. And power would be the next thing. And that has to do with political power. We apportion the 435 seats of the U.S. House of Representatives to the states based on their state population and the whole number of persons not just, you know, people of a certain age or people of a certain citizenship status, we count everybody. And we distribute Federal representation in the House of Representatives based on the whole number of persons. And when you are under-counted as a state, you’re going to get fewer congressional seats, and you will have less of a voice in Washington D.C. And then, you know, finally respect, when you have numbers, you are able to claim more attention for policymaking purposes.  

ELIZABETH WYDRA: That’s absolutely right. Thank you so much for laying that out so clearly.  We’re running out of time. But I just wanted to, you know, thank you for talking about the growing and current state of our diverse democracy. You know, I think on Constitution Day, especially because we’re marking the day in 1787, which I understand. But I do think it kind of reinforces this idea that when people think of the Constitution, they think of these wigged, white guys in Independence Hall in Philadelphia. And you know, the fact is that our Constitution has grown, it’s followed an arc of progress that was written by many of us who were excluded from We the People at the time of the Founding and have made our Constitution better by passing Amendments that provide equal protection. Passing the Fourteenth Amendment and enshrining birthright citizenship. Passing the Voting Rights Amendments that time and time again have made our democracy more inclusive. And so I wish that that image would be one that we celebrate on Constitution Day. And I just love to close by giving you an opportunity to say, you know, what things you find hopeful or worth celebrating on Constitution and Citizenship Day.  

NINA PERALES: It’s very much the same as what you described, what I find hopeful is that even as our country changes in its demographics, the Constitution is expensive enough and flexible enough to be able to take in, you know, all of these folks. And to respect the rights of, you know, people of color who weren’t originally included, of women, of people who don’t own property, you know, poor people have the same rights under the Constitution as anybody else and I love it. I love that aspect of the document that it’s able to keep up with our changing times.  

ELIZABETH WYDRA: I wholeheartedly agree. Thank you so much Nina for joining us today. I really loved our conversation and I’m so grateful whenever I get to work with you and your colleagues at MALDEF and thank you for your work. It is much needed. And I know that I speak for everyone across the country, when I say, thank you. Keep fighting the good fight. Thank you For everyone joining us. You can find out more about CAC and all the work we do on citizenship and voting rights and other issues at the usconstitution.org. You can find us on Twitter at @Constitution. You can find me at @ElizabethWydra on Twitter. Thank you, and be well.