Supreme Court to Examine Citizenship Question in US Census

November 18, 2018 Updated: November 18, 2018

The Supreme Court will wade into the Trump administration’s contested decision to ask individuals responding to the 2020 census if they are U.S. citizens.

Opponents of restoring the citizenship question to the census—it had been part of it until the 1950s and is still part of the long questionnaire given to some participants—say its presence in the census will chill participation, making it less accurate and more expensive to conduct.

Democrats claim adding the question will intimidate immigrants into not completing the census forms. For example, lawyers for New York state claim adding the question threatens billions of dollars in federal funding for the state, which has a large immigration population, and jeopardizes its representation in Congress and the Electoral College.

The Trump administration says it only wants to make sure the count is accurate and that it includes citizens.

The U.S. Department of Commerce, which administers the once-a-decade headcount, said earlier this year that the question will be added to census forms at the request of the U.S. Department of Justice to help identify possible violations of the Voting Rights Act.

“When the Census Bureau conducts the 2020 census, the public has a right to expect that the government will do everything in its power to get as accurate a picture as possible of the American body politic,” Hans A. von Spakovsky, senior legal fellow at the Heritage Foundation wrote earlier this year.

“That includes, as Thomas Jefferson recommended, knowing how many citizens and noncitizens make up our democratic republic.”

When the change was unveiled, Democratic National Committee Chairman Tom Perez said his party would “fight this attempt to undermine our democracy.”

“This is a craven attack on our democracy and a transparent attempt to intimidate immigrant communities,” Perez said. “The census is a constitutionally-mandated count of all U.S. residents, not a political tool for Donald Trump to push his agenda and disempower Latinos and other people of color.”

Perez said restoring the citizenship question that the Obama administration took out of the census lets Trump and Republicans stoke “fear” so they can make immigrant communities “invisible.” In reality, they are “guaranteeing an inaccurate count that lays the groundwork for sustained racial gerrymandering and jeopardizes critical resources for communities across the country.”

On Nov. 16, the Supreme Court agreed to hear the case, ordering the parties to file briefs on the merits. The high court set oral arguments for Feb. 19, 2019.

In the case, the Census Bureau and its parent agency, the U.S. Department of Commerce, are being sued by a multitude of parties including the states of New York, Connecticut, Illinois, Massachusetts, Colorado, New Jersey, and New Mexico, the cities of Chicago, New York, Providence, and San Francisco, as well as by activist groups CASA de Maryland Inc., American-Arab Anti-Discrimination Committee, and New York Immigration Coalition.

The high court is expected to decide whether those challenging the decision to include the citizenship question must rely exclusively on the administrative record detailing the government’s decision-making process, or whether the intentions of the government officials participating in that process ought to be considered.

The case arises out of the trial of a lawsuit already in progress in U.S. District Court for the Southern District of New York. District Judge Jesse M. Furman set closing arguments in that case for Nov. 27 after making a preliminary determination that the Trump administration had been acting in bad faith. Furman said Commerce Secretary Wilbur Ross and other federal officials could be deposed by lawyers for New York state. The status of that proceeding is now in question.

The Trump administration has beaten back demands that Ross appear in the New York proceeding to give evidence. In October, the Supreme Court blocked the planned deposition of Ross but not of other federal officials.

Those challenging the administration’s inclusion of the question say Ross and others in the White House strategized about adding the question before the Justice Department formally submitted a request to include it.

Dale Ho, director of the ACLU’s Voting Rights Project, said that “all relevant evidence should be considered.”

“The Trump administration is terrified of having to explain on the record why it added a census citizenship question, and has repeatedly tried to shield Commerce Secretary Wilbur Ross from answering questions under oath,” he said.