With time running short, Trump administration lawyers urged the Supreme Court on Friday to intervene in a dispute over the 2020 census and uphold their plans to ask everyone about their citizenship.
The move sets the stage for a high-stakes legal fight over the population count, one which could cost California billions in federal funds.
The state filed suit in a federal court in San Francisco seeking to block the citizenship question and cited surveys suggesting that 12% to 18% of households in California may refuse to respond if they were asked about the citizenship of all the residents.
“The level of fear in minority communities has exploded,” said Justin Levitt, a professor at Loyola Law School in Los Angeles and a former voting rights lawyer at the Justice Department. “People are afraid of the federal government.”
He said immigrants feared the Trump administration might use the data to detain or deport those here unlawfully.
Two weeks ago, a federal judge in New York ruled that Commerce Secretary Wilbur Ross had violated federal procedural law by ignoring the advice of census experts who said adding a citizenship question would lead to an inaccurate count. It will “materially reduce response rates among immigrant and Hispanic households,” the experts said.
Judge Jesse Furman wrote a 277-page opinion in which he accused Ross of giving a misleading account as to why he insisted on including the citizenship question. His were the acts of an official “with something to hide,” the judge wrote.
The Constitution requires “an actual enumeration” of the population every 10 years, and it says representation in Congress will be apportioned “among several states according to the respective numbers, counting the whole number of persons in each state.”
Prior to 1960, the census had asked households about their citizenship and place of birth. Since then, citizenship data have been collected only through surveys of a small segment of the population.
But last March, Ross said he had decided to add a citizenship question to next year’s census.
On Friday, Solicitor Gen. Noel Francisco asked the high court to take up the census issue without waiting for a ruling from an appeals court. This “involves an issue of imperative public importance,” he said. The census “occurs only once a decade, with no possibility of a do-over.” And the government needs to have a final census form ready for printing this summer, he said.
The justices have already shown a keen interest in the case. They issued orders to limit the scope of the trial in New York, and they are likely to grant review when they meet again in mid-February.
The case is U.S. Department of Commerce vs. New York.