Supreme Court weighs a Trump census question that could undercut California’s power

President Trump greets Supreme Court justices after the State of the Union address in the chamber of the U.S. House of Representatives on Feb. 5, 2019, in Washington.
President Trump greets Supreme Court justices after the State of the Union address in the chamber of the U.S. House of Representatives on Feb. 5, 2019, in Washington.
(Win McNamee / Getty Images)

The Supreme Court meets behind closed doors Friday to weigh a question that could shape the political power of California for the decade ahead.

At issue is the Trump administration’s plan to ask all households for the first time since 1950 whether occupants are U.S. citizens.

State officials and Latino activists have been sounding the alarm, arguing that this single change to next year’s census could have a broad impact.


If the Trump White House wanted to deal a political blow to California, “the most effective way to do it would be to promote an intentional undercount of the state in the 2020 census,” said Arturo Vargas, chief executive of the National Assn. of Elected and Appointed Latino Officials in Los Angeles. “And I think that’s precisely what’s behind the adding of this question.”

The once-a-decade count will be used to divide up political power among the states and within states, and political scientists predicted in court testimony that California would lose billions in federal funds and at least one and possibly as many as three seats in the House — and the same number of electoral votes — if the citizenship question is used next year.

California would be hit especially hard, they said, because 28% of the state’s households have a family member who is not a citizen.

Over the advice of census experts, Commerce Secretary Wilbur Ross announced last year he would add the citizenship question in order, he said, to “provide complete and accurate data” for the census.

For each person, the head of household will be asked, “Is this person a citizen of the United States?” The answer comes in one of five boxes to be checked: (1) “Yes, born in the United States”; (2) “Yes, born in Puerto Rico, Guam, U.S. Virgin Islands or Northern Marianas”; (3) “Yes, born abroad to U.S. citizen parent or parents”; (4) “Yes, U.S. citizen by naturalization — Print year of naturalization”; or (5) “No. Not a U.S. citizen.”

When pressed to justify the decision, Ross said he chose to add the extra question because the Justice Department said it needed the citizenship data to comply with the Voting Rights Act.


Officials in California, New York and 17 other Democratic-leaning states say neither justification makes sense. They argue that adding the citizenship question is likely to yield incomplete and inaccurate data because millions of immigrant families will refuse to respond, leading to a severe undercount in areas like Southern California and South Texas. And they said Justice Department lawyers have enforced the Voting Rights Act for more than 50 years without needing block-by-block data on eligible voters. Instead, they have relied on data from the American Community Survey, which annually asks detailed questions, including on race, ethnicity and citizenship, of a small statistical sample of the public.

On Friday, lawyers for California and the Justice Department will present their final arguments in San Francisco in the state’s suit, California vs. Ross, that seeks to block the change. At the same time, the Supreme Court justices will meet privately to weigh the administration’s request to decide the issue on a fast track in the case from New York.

Solicitor Gen. Noel Francisco said the high court must act now because the Census Bureau needs to begin printing forms by summer.

If the justices agree to hear the case, Department of Commerce vs. New York, they will bypass the appellate courts and schedule a special argument in late April or May. They will review a scalding 277-page opinion handed down last month by U.S. District Judge Jesse Furman in New York who stopped just short of accusing Ross of lying to hide his partisan motives. He detailed how the Commerce secretary had overruled the government’s statisticians and demographers who had spent a decade preparing for the census and had warned it was a mistake to add such a charged and untested question.

When questioned on Capitol Hill, Ross told lawmakers he had acted “solely” in response to a request from the Justice Department. But emails released during the litigation showed Ross himself had prompted the Justice Department to make the request. The judge also noted that early in 2017, Ross spoke with then-White House chief strategist Steve Bannon and Kansas Secretary of State Kris Kobach about the issue. They “discussed the potential effect on ‘congressional apportionment’ of adding ‘one simple question’ to the census,” he wrote. Furman ruled the addition of the new question violated the Administrative Procedures Act because it was “arbitrary and capricious.”

The Constitution calls for an “actual enumeration” of the population every 10 years and says representatives “shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state.” This has been understood to mean that all residents are counted equally in the census, regardless of their citizenship status.


No one knows how the census will fare next year with the new citizenship question. Experts offered widely different predictions during the trials.

The New York judge cited testimony from a Census Bureau official who said adding the citizenship question would prompt 5.8% more households to refuse to respond to the census questions compared to 2010. In the California case, UCLA professor Matt Barreto cited a survey he conducted which suggested that more than 12% of the households in California would refuse to respond.

Justice Department lawyers called Barreto’s prediction of a steep decline in responses “inaccurate and misleading,” but told the judge that “the true extent of any decline [in responses] is unknown.” If fewer households respond to the census, they said, “the non-response follow-up workload may be increased,” so that in the end, “the Census Bureau may capture” those who are missing from the count.

Vargas, however, predicts serious trouble for the census because of the Trump administration’s get-tough approach to immigration.

“This is coming from a White House that has created the most hostile environment for immigrant families. They have created this climate of fear and suspicion. It is the same White House that wants to ask every single person, ‘Are you a citizen?’” he said. “When you add an untested and politically motivated question at the last moment, it is sabotaging a fundamental aspect of our democracy. And it is guaranteeing an undercount of the state’s population.”

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