Election Watchdog Urges SCOTUS to Hear Census Immigration Case Before Administrative Deadlines

February 14, 2019 Updated: February 14, 2019

An election watchdog group is urging the Supreme Court to hear a sensitive case regarding a Census Bureau citizenship question before administrative deadlines to produce census forms and other necessary items transpire.

If the court process of determining the legality of the question drags on longer than the Commerce Department’s June 2019 final deadline, then the question could be left off the nationwide census forms even if it’s found to be legal at a later date.

“Time is running out to correct the errors of the trial court,” said J. Christian Adams, president and general counsel of the Public Interest Legal Foundation (PILF), in a Feb. 11 statement accompanying the group’s new Supreme Court amicus brief.

The Commerce Department, which oversees the census, is being sued by the state of New York and more than two dozen other states and cities in the largest of six lawsuits opposing the Trump administration’s reinstatement of the question on the once-a-decade national headcount.

A federal trial court judge at the U.S. District Court for the Southern District of New York ordered the question to be removed from the census last year, and the Supreme Court has been expected to decide the case ever since.

In his opinion, Judge Jesse M. Furman, an Obama appointee, said that New York and other co-plaintiffs “plausibly allege that [Commerce Secretary Wilbur Ross’s] decision to reinstate the citizenship question was motivated at least in part by discriminatory animus and will result in a discriminatory effect.”

Furman cited an email obtained from President Donald Trump’s re-election campaign that indicated the president had “officially mandated” the question, which, along with the president’s past rhetoric, the judge took to mean that Trump was “personally involved in the decision.”

However, Furman acknowledged that Ross still has “broad authority” over the census, regardless of Trump’s alleged personal or political beliefs.

Adams, a former Department of Justice voting rights attorney, disagreed with the ruling entirely.

“This error, if not corrected by this [Supreme] Court before the deadline for the printing of census forms, will have long-lasting effects. The opportunity to collect the data on the 2020 census, once gone, cannot be reclaimed,” he said.

In a phone interview, a PILF spokesman reiterated that expediting the case “is a point of major national interest.”

“If the question is not asked and the data is not collected, then you won’t be able to accurately enforce the Voting Rights Act,” the spokesman said.

The Department of Justice has argued that the question is necessary to obtain an accurate assessment of voting-age citizens, in order to properly enforce protections against voting discrimination under the Voting Rights Act.

Counting large numbers of noncitizens, DOJ attorneys said, would distort congressional reapportionment and state-level redistricting, which is based on census population statistics. The effect would dilute the voting power of African-Americans and other minority citizens, contrary to federal law.

But critics say the inclusion of a citizenship question would dissuade illegal immigrants from participating, which would significantly affect census figures in areas where illegal immigrants tend to live.

According to Pew Research, about six in 10 illegal immigrants live in just 20 urban areas, the largest portion of them residing in New York City and Los Angeles. These cities are typically dominated by the Democratic Party, and their enhanced populations allow for outsized federal funding and political clout in the U.S. House of Representatives, and by extension, the Electoral College.

In a pre-2016 presidential election analysis, authors Paul Goldman, a Washington Post columnist, and Mark J. Rozell, then-acting dean at George Mason University, determined that illegal immigration gives “Democratic states an unfair edge.”

They estimated that California would lose five House seats, and therefore, five Electoral College votes, if the state’s illegal immigrant population were eliminated from the census, especially since noncitizens can’t legally vote in federal elections.

“The distribution of these 435 [House] seats is not static: they are reapportioned every 10 years to reflect the population changes found in the census,” they said.

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