Voting Rights and Democracy

Supreme Court conservatives appear ready to OK Trump’s census citizenship question

The Supreme Court’s conservative justices appeared ready on Tuesday to uphold the Trump administration’s plan to add a citizenship question to the 2020 census and deal a defeat to California and other states with large numbers of immigrants.

It is a politically charged dispute over how to conduct the once-a-decade count of the U.S. population, and the justices sounded sharply split along familiar ideological lines.

The five conservatives, all of whom are Republican appointees, expressed support for the administration plan.

The law “gives huge discretion to the Secretary [of Commerce Wilbur Ross] on what to put on the form,” said Justice Brett M. Kavanaugh. Agreeing with Justice Neil M. Gorsuch, he said history and international practice are on the side of the administration. Through most of American history, the census asked all or some households about the citizenship of their residents, he said, and most leading countries in the world do the same.

The four liberals, all Democratic appointees, were even more vehement in describing the citizenship question as a scheme hatched by Trump’s advisors to drive down the population count in the states and cities that favor Democrats.

None of the justices sounded torn or uncertain. By the argument’s end, it appeared the high court would hand down a 5-4 ruling for the Trump administration, probably in late June.

Debates over the census are usually reserved for demographers and statisticians, but the dispute over the citizenship question is one of high politics.

Lawyers for California and other blue states with large numbers of immigrants fear that millions of households will refuse to fill out the census forms if the citizen question is included out of concern that the confidential information will be shared with immigration agents.

The states worry a potential undercount will cost them billions of dollars in federal funds as well as political clout.

Seats in the House of Representatives and in state legislatures are allocated based on census data. And the Constitution calls for “the actual Enumeration” of the population and says “representatives shall be apportioned … counting the whole number of persons in each state.” This has been understood to mean that all residents are counted, regardless of whether they are citizens.

Ross said he shared the goal of “obtaining complete and accurate data” on the U.S. population. But he announced last year that he had overruled census experts and decided to add a citizenship question for all households for the first time since 1950. Since 1960, the government has used separate surveys or a “long form” census given to a sample to gather data on the growing population of foreign-born residents and naturalized citizens.

Ross said he chose to add the new question to improve compliance with the Voting Rights Act of 1965. But lawyers and judges scoffed at this explanation as far-fetched. Federal attorneys have enforced the Voting Rights Act for more than 50 years without needing block-by-block data on the citizenship of the residents, they said.

During Tuesday’s argument, Justice Elena Kagan called the administration’s arguments “contrived.” Before making a major change that could affect millions of people for a decade, a top official needs to give an explanation, she said. “I searched the record, and I don’t see any reason,” she said.

The tenor of Tuesday’s argument was similar to last year’s dispute over Trump’s travel ban, which barred most visitors and immigrants from several Muslim-majority countries from entering the U.S. Democratic attorneys general on the West Coast and East Coast went to court and won rulings blocking the president’s order as exceeding his authority and discriminating unconstitutionally based on religion.

However those arguments fell flat in the Supreme Court. Chief Justice John G. Roberts Jr. spoke for a 5-4 majority to rule that Trump’s order was well with the president’s power under the immigration laws.

So far, the dispute over the citizenship question has followed a similar path. The attorneys general of New York, California and Maryland went to court and argued Ross’ order violated federal administrative law because it conflicted with the advice of census experts inside and outside the government. They won rulings from district judges in New York, San Francisco and Maryland, all of whom were Obama appointees.

U.S. Solicitor Gen. Noel Francisco took the issue directly to the Supreme Court. The justices agreed to bypass the appellate courts and hear the case now because the government plans to begin printing census forms in the summer.

Leaders of several progressive groups warned that conservative justices were risking the reputation of the high court as well as the accuracy of the census.

“Nothing less than the integrity of the Supreme Court is on the line for Chief Justice Roberts,” said Elizabeth Wydra, president of the Constitutional Accountability Center. “The record is replete with evidence of Secretary Ross’ mendacity in engineering this bogus question intended to skew the census’ constitutionally mandated count. For the Roberts court to uphold this effort would do lasting damage to the apolitical status and perception of the court that the chief justice says he wants to protect.”

If next year’s census asks about citizenship, California officials have said they will spend heavily on a promotion campaign to encourage all residents to fill out the census forms. They hope to reassure those who are not citizens that census data is kept confidential by law.

Lawyers said Tuesday that nation is believed to have about 22 million noncitizens. About half of them are legal residents and the rest are here illegally.

Census experts predicted that 6.5 million or more people will go uncounted if the citizenship question is added. In the trial in San Francisco, some experts predicted California would suffer the most because more than one-fourth its households include one or more noncitizens.

It is also possible the citizenship data could lead to a major political realignment in Republican-led states like Texas and Florida. Four years ago, the court debated but did not finally decide whether states could choose to draw the electoral districts for their states and county boards based on the count of voting-age citizens, not the whole population. Political experts say this would shift power toward older white and conservative communities — which often vote Republican — and away from communities with more immigrants.

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