Supreme Court

Supreme Court rejects Trump’s argument for census citizenship question. What that means for 2020

The Supreme Court rejected the Trump administration’s decision to include a citizenship question in the 2020 census, finding that the administration’s explanation for the question appeared to be “contrived.”

Chief Justice John Roberts joined the court’s four liberal justices in ruling against the Trump administration. The ruling sends the case back to a federal district court in New York for further consideration, but it leaves the Trump administration little time to make a new case for the citizenship question because the government must soon begin printing materials to carry out the decennial census.

Many federal funding programs are calculated using data from the once-a-decade census. The country’s 435 congressional seats are also apportioned based on census data. California’s slowing population growth already puts it at risk of losing a congressional seat in 2021.

The Constitution requires the U.S. government to count every person living in the United States every ten years. Commerce Secretary Wilbur Ross and other Trump officials have argued that adding a citizenship question, which hasn’t been in the full decennial census for over 50 years, will help the federal government enforce the Voting Rights Act.

The court’s 5-4 decision held that Ross came into office determined to add a citizenship question to the census, and appeared to invent the argument about enforcing the Voting Rights Act much later.

“It is rare to review a record as extensive as the one before us when evaluating informal agency action— and it should be. But having done so for the sufficient reasons we have explained, we cannot ignore the disconnect between the decision made and the explanation given,” Roberts wrote.

In two separate dissents, conservative justices argued the court’s decision trampled on the executive branch.

“Unable to identify any legal problem with the Secretary’s reasoning, the Court imputes one by concluding that he must not be telling the truth,” Justice Clarence Thomas wrote in a dissent also signed by Justices Neil Gorsuch and Brett Kavanaugh.

The state of New York and a coalition of more than a dozen other states and cities brought the lawsuit challenging the Department of Commerce’s decision to add the question to the census. Attorneys for the coalition argued Ross ordered the Census Bureau to include a citizenship question for political purposes, with the aim of reducing the response rate among households with undocumented immigrants.

That violates a number of federal laws, they argued, including the Administrative Procedure Act, which requires transparency in decision-making by federal officials.

A U.S. district court in New York ruled in January that the government’s decision to add the citizenship question involved a “smorgasbord of classic, clear-cut” violations of the federal law governing administrative agencies.

A U.S. district court in Northern California also ruled against the Trump administration in a separate case brought by state Attorney General Xavier Becerra, ordering the Commerce Department to remove the citizenship question from the census.

The high court ruling was a surprise. The Supreme Court’s five conservative justices were openly skeptical of the challengers’ case during oral arguments in April, suggesting the government had legitimate reasons for adding the citizenship question and other factors could be to blame for immigrants’ hesitance to respond.

Opponents of the citizenship question hoped, however, that the discovery of a 2015 memo from a Republican operative with ties to the Trump administration might sway the court. The memo, written by late North Carolina consultant Thomas B. Hofeller, detailed how a citizenship question could suppress the population count in Democratic areas of the country. Those population counts are used to determine congressional representation. So a lower Democratic count would help Republicans redraw congressional districts in their favor.

In a May filing in a federal district court in California, Becerra called the memo a “smoking gun.”

The decision could help California and other states with large immigrant populations as they gear up for the national headcount. California officials had feared that the 2020 Census would not count a significant number of people, particularly in communities that have been historically “hard-to-count,” in census parlance. That includes immigrants, people of color, low-income people, renters, children and those with limited English language proficiency, among others.

According to the San Francisco-based Public Policy Institute of California (PPIC), about 72 percent of all Californians – or 29 million people – belong to one or more of these groups

An Urban Institute report released at the beginning of June found California faced the greatest risk of an undercount of any state, given its populations. In the report’s “low risk” scenario, roughly 229,000 people would not be counted. In the “high risk” scenario, that figure would rise to 577,000 people.

Even in a low-risk scenario, California’s population growth rate — the lowest in history — means the state is likely to lose a congressional seat, demographers say. The citizenship question would have made it more likely that Hispanics, immigrants and non-citizens would not participate in the Census.

An undercount of the Latino population will mean a failed census and that is the track on which this census is currently proceeding,” National Association of Latino Officials Education Fund CEO Arturo Vargas warned on a call with reporters in mid-June, before the court issued its ruling.

Vargas’ organization and many others are working to counteract that trend with increased investment and outreach. The state of California is spending over $100 million on outreach across the state, with Gov. Gavin Newsom adding another $50-plus million in the fiscal 2019-2020 budget that just passed the legislature.

Emily Cadei works out of the McClatchy Washington bureau, where she covers national politics and writes the Impact2020 newsletter. A native of Sacramento, she has spent more than a decade in D.C. reporting on U.S. elections, Congress and foreign affairs for publications including Newsweek, Congressional Quarterly and Roll Call.