Supreme Court Justices Seem to Split on Adding Citizenship Question to Census

April 23, 2019 Updated: April 23, 2019

WASHINGTON—Supreme Court justices split on ideological grounds on April 23 during high-stakes oral arguments about the legality of the Trump administration’s decision to ask individuals responding to the 2020 Census whether they are U.S. citizens.

The results from the once-a-decade census, which counts both legal and illegal residents of the United States, are important because they are used to allocate federal dollars and determine representation in Congress.

Republicans and Democrats have locked horns for decades over how the census is carried out. Democrats accuse Republicans of scheming to undercount minorities and illegal aliens out of racial animus. Republicans say Democrats try to game the system and use immigration policy to import illegal aliens and new voters to inflate the headcount in order to strengthen their hold over so-called blue states and congressional districts.

The high court agreed on Feb. 15 to accept the case, an appeal of a ruling by Manhattan-based U.S. District Judge Jesse Furman, on an expedited basis because the U.S. Census Bureau needs to print its official questionnaires in the coming months. Furman held that Commerce Secretary Wilbur Ross acted in bad faith and that he falsely claimed the citizenship question was needed to gather data to help enforce the Voting Rights Act and that its addition was requested by the Justice Department.

Left-wing activists claim the administration wants to include the question to discourage Latinos and illegal aliens from completing the form, and that this would unfairly influence congressional representation for Democratic-leaning states with large illegal alien populations. According to one estimate, noncitizens make up about 7 percent of the nation’s inhabitants.

During oral arguments, liberal justices aggressively questioned Solicitor General Noel Francisco as he made his presentation.

Less than a minute into Francisco’s talk, Justice Sonia Sotomayor interjected, challenging his version of the facts.

After Francisco stated that Ross had “reinstated a citizenship question that has been asked as part of the census in one form or another for nearly 200 years,” Sotomayor contradicted him.

The long survey, known as the American Community Survey, which contains the citizenship question, is distributed to about 2 percent of households every year. But between 1820 and 1950, every decennial census except for one included the citizenship question, according to a case preview prepared by law professor Steven D. Schwinn of the John Marshall School of Law.

The question hasn’t been included in the so-called short version of the survey that has been sent to most households since 1950, Sotomayor said.

“And for 65 years, every secretary of the Department of Commerce, every statistician, including this secretary’s statistician, recommended against adding the question,” the justice said. “So it may be that 200 years of asking a citizenship question in other forms may be true, but not on the short survey. That’s what’s at issue here.”

Adding the question will “no doubt” depress the response rate, she said. “That has been proven in study after study.”

Justice Elena Kagan said it seemed “like the secretary was shopping for a need.”

“You can’t read this record without sensing that … this need is a contrived one,” she added.

Conservative-leaning justices seemed comfortable with the potential inclusion of the citizenship question.

“It’s not like this question, or anybody in the room is suggesting the question is improper to ask in some way, shape, or form,” Justice Neil Gorsuch said.

“And what we do as well with the evidence of practice around the world and virtually every English-speaking country and a great many others besides [who] ask this question in their censuses?”

Along the same lines, Justice Brett Kavanaugh said the question was “very common” internationally and that federal law grants the Commerce Department “huge discretion” over how the census is carried out.

On the courthouse steps after oral arguments wrapped up, Democratic New York Attorney General Letitia James said her legal team presented a strong case.

“There is more at issue than just surveys and statistics, because the census is more about just an accurate count. It’s about how our government is organized and how our power is equally divided. It’s also about the equal distribution of funds. Fundamentally, the census is a measure we use to deliver on one of our nation’s core tenets and that is the promise of fairness. Fairness means that assistance reaches those who need it the most. It means that communities have an equal representation in government. It means that no group or neighborhood is marginalized.”

“Adding that particular citizenship question could lead to the undercounting in communities across America, particularly in immigrant communities and Hispanic communities. It would mean that communities entitled to resources wouldn’t get those resources,” James said.

 

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