SCOTUS Conservatives Appear Ready to OK Census Citizenship Question

Most other leading nations in the world ask a similar question of their residents…

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(David G. Savage, Los Angeles Times) WASHINGTON — Supreme Court justices on Tuesday appeared ready to uphold the Trump administration’s attempt to add a citizenship question to the 2020 census.

The justices were sharply split along ideological lines with the court’s conservatives clearly on the side of deferring to the administration.

By the end of the argument, it sounded as though the court would hand down a 5-4 decision in support of the Trump administration.

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 agencies.

The states worry a potential undercount in the once-a-decade tally will cost billions of dollars in federal funds as well as a loss in political clout.

The seats in the House of Representatives and in state legislatures are allocated based on census data. And the Constitution 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.

But Commerce Secretary Wilbur Ross announced last year that he had decided to add a citizenship question for all households for the first time since 1950. Since then, the government has used surveys or a “long form” 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. But judges dismissed this as far-fetched.

Federal district court judges in New York, San Francisco and Baltimore ruled that Ross’ decision violated the Administration Procedures Act because it conflicted with the views of census experts inside and outside the government.

But in their appeal in Department of Commerce v. New York, Trump administration advocates cite the federal law that gives the Commerce secretary broad leeway to conduct “in such form and content as he may determine.”

The high court agreed to bypass the appellate courts and hear the case now because the government plans to begin printing census forms in the summer.

Sonia Sotomayor photo

Sonia Sotomayor/Photo by Gage Skidmore (CC)

The court’s four liberals, led by Justice Sonia Sotomayor, dominated much of the argument, insisting that adding a citizenship question would lead to an undercount.

“There’s no doubt people will respond less,” she said.

Justice Elena Kagan joined her in arguing that Ross’ reasons for adding the question appear “contrived.”

“I went searching in the record for a reason” for adding the new question, she said, since most of the evidence showed it would lead to an inaccurate tally. “I didn’t find a reason.”

But the court’s conservatives were equally firm in arguing that the decision was a reasonable one and should be upheld.

Justices Neil M. Gorsuch and Brett M. Kavanaugh pointed out that citizenship questions were included on the census through most of the nation’s history and that most of the other leading nations in the world ask a similar question of their residents.

The law calls for the court to be “deferential” to the decision of the Commerce secretary, Kavanaugh said.

Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. commented that Ross’ decision seemed reasonable, and the courts had no basis for invalidating it.

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