SCOTUS Poised to OK Census Change 04/24 06:20
Despite evidence that millions of Hispanics and immigrants could go
uncounted, the Supreme Court's conservative majority seemed ready Tuesday to
uphold the Trump administration's plan to inquire about U.S. citizenship on the
2020 census in a case that could affect American elections for the next decade.
WASHINGTON (AP) -- Despite evidence that millions of Hispanics and
immigrants could go uncounted, the Supreme Court's conservative majority seemed
ready Tuesday to uphold the Trump administration's plan to inquire about U.S.
citizenship on the 2020 census in a case that could affect American elections
for the next decade.
There appeared to be a clear divide between the court's liberal and
conservative justices in arguments in a case that could affect how many seats
states have in the House of Representatives and their share of federal dollars
over the next 10 years. States with a large number of immigrants tend to vote
Three lower courts have so far blocked the plan to ask every U.S. resident
about citizenship in the census, finding that the question would discourage
many immigrants from being counted . Two of the three judges also ruled that
asking if people are citizens would violate the provision of the Constitution
that calls for a count of the population, regardless of citizenship status,
every 10 years. The last time the question was included on the census form sent
to every American household was 1950.
Three conservative justices, Samuel Alito, Neil Gorsuch and Clarence Thomas,
had expressed skepticism about the challenge to the question in earlier stages
of the case, but Chief Justice John Roberts and Brett Kavanaugh had been
silent, possibly suggesting a willingness to disrupt the administration's plan.
However, over 80 minutes in a packed courtroom, neither Roberts nor
Kavanaugh appeared to share the concern of the lower court judges who ruled
against the administration.
Kavanaugh, the court's newest member and an appointee of President Donald
Trump, suggested Congress could change the law if it so concerned that the
accuracy of the once-a-decade population count will suffer. "Why doesn't
Congress prohibit the asking of the citizenship question?" Kavanaugh asked near
the end of the morning session.
Kavanaugh and the other conservatives were mostly silent when Solicitor
General Noel Francisco, the administration's top Supreme Court lawyer, defended
Commerce Secretary Wilbur Ross' decision to add the citizenship question. Ross
has said the Justice Department wanted the citizenship data, the detailed
information it would produce on where eligible voters live, to improve
enforcement of the Voting Rights Act.
Lower courts found that Ross' explanation was a pretext for adding the
question, noting that he had consulted early in his tenure with Stephen Bannon,
Trump's former top political adviser and immigration hardliner Kris Kobach, the
former Kansas secretary of state.
The liberal justices peppered Francisco with questions about the
administration plan, but they would lack the votes to stop it without support
from at least one conservative justice.
"This is a solution in search of a problem," Justice Sonia Sotomayor, the
court's lone Hispanic member, said of Ross' decision.
Justice Elena Kagan chimed in that "you can't read this record without
sensing that this need was a contrived one."
Roberts appeared to have a different view of the information the citizenship
question would produce.
"You think it wouldn't help voting rights enforcement?" Roberts asked New
York Solicitor General Barbara Underwood, who was representing states and
cities that sued over Ross' decision.
Underwood and American Civil Liberties Union lawyer Dale Ho said the
evidence showed the data would be less accurate. Including a citizenship
question would "harm the secretary's stated purpose of Voting Rights Act
enforcement," Ho said.
Census Bureau experts have concluded that the census would produce a more
accurate picture of the U.S. population without a citizenship question because
people might be reluctant to say if they or others in their households are not
citizens. Federal law requires people to complete the census accurately and
The Supreme Court is hearing the case on a tight timeframe, even though no
federal appeals court has yet to weigh in. A decision is expected by late June,
in time to print census forms for the April 2020 population count.
The administration argues that the commerce secretary has wide discretion in
designing the census questionnaire and that courts should not be
second-guessing his action. States, cities and rights groups that sued over the
issue don't even have the right to go into federal court, the administration
says. It also says the citizenship question is plainly constitutional because
it has been asked on many past censuses and continues to be used on smaller,
annual population surveys.
Gorsuch, also a Trump appointee, also noted that many other countries
include citizenship questions on their censuses.
Douglas Letter, a lawyer representing the House of Representatives, said the
census is critically important to the House, which apportions its seats among
the states based on the results. "Anything that undermines the accuracy of the
actual enumeration is immediately a problem," Letter said, quoting from the
provision of the Constitution that mandates a decennial census.
Letter also thanked the court on behalf of Speaker Nancy Pelosi for allowing
the House to participate in the arguments.
"Tell her she's welcome," Roberts replied.