Last week a divided Supreme Court ruled that the Trump administration’s stated reason for including a question about citizenship on the 2020 census – to help the Department of Justice better enforce federal voting rights laws – was a pretext. The “evidence,” Chief Justice John Roberts wrote, “tells a story that does not match the explanation that” Secretary of Commerce Wilbur Ross provided. The court’s four liberal justices joined Roberts in sending the case back to the Department of Commerce for a do-over, but today the government announced that the 2020 census will apparently not include the question after all.
Ross had declared last year that a question about citizenship would be included on the 2020 census. That announcement drew an immediate challenge from New York and other state and local governments, as well as several immigrants’ rights groups. The challengers feared that, if a question about citizenship were part of the census, households with residents who are not U.S. citizens would be less likely to respond, leading to an inaccurate count. And that, the challengers worried, could cost the states seats in the House of Representatives and millions of dollars in federal funding.
In January, a federal district court in New York blocked the government from including the citizenship question on the census. The Trump administration asked the Supreme Court to weigh in, which the justices agreed to do; they heard oral argument in the case in late April. Roughly a month later, the challengers notified the justices about new evidence suggesting that Thomas Hofeller, a Republican redistricting specialist who died last year, had played a role in the decision to add the citizenship question, and that the question had been included in the hope of providing whites and Republicans with an advantage in future elections. The evidence led to a series of last-minute filings in the Supreme Court and in a federal court in Maryland, where a district judge had reopened another challenge to reconsider whether Ross had wanted to add the citizenship question to discriminate against Hispanics.
Last week, a fractured court agreed with the government that the Constitution allowed Ross to decide to use the citizenship question, and that he could do so even though employees of the Census Bureau had recommended another approach to gathering citizenship data. The court noted that it was also reasonable for Ross to decide to use the question even if it might lead to a lower response rate from households with residents who are not U.S. citizens. But at the same time, Roberts stressed, the government needed to provide a better explanation for its decision.
In the wake of Thursday’s ruling, it wasn’t immediately clear what the government planned to do. The Department of Justice indicated only that it was “disappointed” by the ruling but would “continue to defend this Administration’s lawful exercises of executive power.” President Donald Trump seemed to leave open the possibility that the administration would still seek to include the question, tweeting that he had asked the lawyers “if they can delay the Census, no matter how long,” until the Supreme Court “is given additional information from which it can make a final and decisive decision on this very critical matter.”
But today the government seemed to close the door on including the question. In an email to lawyers involved in the case that was circulated widely on Twitter, Department of Justice attorney Kate Bailey wrote that the “decision has been made to print the 2020 Decennial Census questionnaire without a citizenship question,” and “the printer has begun the printing process.”
With the legal battle over the citizenship question apparently over, the start of the 2020 census is approximately seven and a half months away: The first enumeration begins on January 21, 2020, in Toksook Bay, Alaska.
This post was originally published at Howe on the Court.
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