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Can the 2020 Census Ask About Citizenship? The Supreme Court Will Decide

February 15, 2019

The U.S. Supreme Court agreed to decide whether President Donald Trump’s administration can ask about citizenship on the 2020 census, taking up a case that will affect the allocation of congressional seats and federal dollars.

With an approaching deadline for printing census questionnaires, the court said Friday it will review a federal trial judge’s decision to bar the citizenship question on an expedited basis. The court will hear arguments in April and rule by the end of June.

The case marks Trump’s biggest Supreme Court showdown since the justices upheld his travel ban in 2018. It’ll test the court’s willingness to defer to an administration that, according to U.S. District Judge Jesse Furman, hid its real reasons for adding the question.

Furman said Commerce Secretary Wilbur Ross acted in an “arbitrary and capricious” manner and violated a federal administrative law in a “veritable smorgasbord” of ways.

“He failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices,” the New York-based judge wrote.

The administration contends in its appeal that courts lack any power to review Commerce Department decisions about what questions to include on the census.

“The census has from its inception been used to collect additional useful demographic information — including, for many decades, about citizenship,” U.S. Solicitor General Noel Francisco argued. “It was not arbitrary and capricious for the secretary to reinstate a longstanding and unremarkable citizenship question to the decennial census.”

Undercount Feared

Advocacy organizations and a New York-led group of states, cities and counties are suing, saying the citizenship question will reduce the accuracy of the count by lessening participation, particularly among Hispanic households. A census undercount in areas with large numbers of non-citizens could shift congressional districts and federal funds away from those communities.

The high court has already hinted it might divide along ideological lines. In November, three conservative justices — Clarence Thomas, Samuel Alito and Neil Gorsuch — said they would have halted the trial that eventually led to Furman’s ruling.

The U.S. Constitution requires a decennial census — or an “actual Enumeration” — but doesn’t provide any guidance about what information should be collected. Census-takers started asking about citizenship in 1820 but haven’t posed the question to every household since 1950.

From 1960 to 2000 a sample of the population was asked about citizenship, and since 2005 the Census Bureau has asked about citizenship in a separate annual survey sent to some people. The 2010 census didn’t include a citizenship question.

Voting Rights

Ross said in a formal memo in March that he was reinstating the citizenship question at the behest of the Justice Department, which said the information would help with enforcement of the Voting Rights Act. Ross said there wasn’t sufficient proof that the question would significantly depress response rates.

“I find that the need for accurate citizenship data and the limited burden that the reinstatement of the citizenship question would impose outweigh fears about a potentially lower response rate,” Ross wrote.

Furman said the Voting Rights Act explanation was a pretext, and pointed to indications that Ross made his decision long before receiving the Justice Department request. The judge also said the evidence before Ross established that inclusion of the question will result in less accurate citizenship data.

“The administrative record is rife with both quantitative and qualitative evidence, from the Census Bureau itself, demonstrating that the addition of a citizenship question to the census questionnaire would indeed materially reduce response rates among immigrant and Hispanic households,” Furman wrote.

Francisco said that Ross “made a policy judgment to balance competing priorities in a particular manner.” The challengers’ disagreement “is not a license to substitute their judgment for that of the agency,” Francisco said.

Shifting Explanations

Ross has drawn fire for giving shifting and inaccurate explanations about the decision. He testified to Congress that he hadn’t discussed the citizenship question with anyone at the White House.

But the Justice Department later said in a court filing that Ross recalled speaking about the issue in 2017 with Stephen Bannon, a staunch advocate of limiting immigration who was Trump’s chief White House strategist at the time. The Justice Department said Bannon asked Ross if he would talk about a citizenship question with Kris Kobach, an outspoken illegal-immigration critic who was then the Kansas secretary of state.

The challengers sought to question Ross under oath as part of the litigation. The Supreme Court blocked that questioning in October but let other aspects of the case go forward.

The Supreme Court at one point was preparing to hear arguments on preliminary issues, including the effort to question Ross, but Furman’s Jan. 15 ruling prompted the court to scrap those plans.

The case is U.S. Department of Commerce v. State of New York, 18-966.