The Supreme Court agreed Friday to rule by this summer on the Trump administration’s plan to add a citizenship question to the 2020 census, dealing a potential political blow to California and other states with large numbers of immigrants.
The outcome could tilt political clout in the next decade away from states and urban areas with fast-growing populations of foreign-born residents.
Data from the once-a-decade count is used to divide up political power among and within states as well as to distribute federal funds. Political experts believe the citizenship question could drive down the population count in states like California, Texas, Florida, New York, Illinois and Arizona. Cities like Los Angeles, Chicago and Houston could lose both funding and political clout within their states.
Democratic officials and Latino activists have accused President Trump of creating a climate of fear among immigrants, and say millions of immigrant families may refuse to fill out the census forms if they are asked to name occupants who are not U.S. citizens.
In a brief order, the justices granted a request from Trump’s lawyers to bypass the appellate courts and decide the issue on a fast-track basis.
The court said it would hear the case of Department of Commerce vs. New York in late April. They will review a ruling by Judge Jesse Furman in New York, who issued a 277-page opinion last month that rebuked Commerce Secretary Wilbur Ross for ignoring census experts and adopting an untested question that was proposed by White House political advisors. He ruled Ross’ decision was “arbitrary and capricious” and in violation of the Administrative Procedures Act.
But Solicitor Gen. Noel Francisco, representing the Trump administration, argued that Congress had given the Commerce secretary broad power to conduct the census “in such form and content as he may determine,” quoting the words of the statute. He had urged the high court to resolve the census dispute by June because the government is due to begin printing the forms that will be mailed to all the households across the nation.
The administration has reason to be confident it will prevail before the conservative-leaning high court. The political impact could be significant.
Political scientists testified that California stood to lose at least one and as many as three seats in Congress — and the same number of electoral votes — if the citizenship question were added to the census.
“Adding a citizenship question to the census would cause incalculable damage to our democracy,” Dale Ho, director of the American Civil Liberties Union’s Voting Rights Project, said Friday. “The evidence presented at trial exposed this was the Trump administration’s plan from the get-go. We look forward to defending our trial court victory in the Supreme Court.”
Civil rights advocates joined Democratic state attorneys in urging the court to block the Trump plan. “The record in the cases provides overwhelming evidence that the administration’s goal in adding a citizenship question was to discourage and deter immigrants and communities of color from participating,” said Kristen Clarke, president of the Lawyers’ Committee for Civil Rights Under Law. “At the end of the day, the census count stands as one of the most critical constitutional functions our federal government performs and this administration has taken extraordinary steps to jeopardize the possibility of achieving a full and fair count.”
The legal dispute is the latest of many that pits Trump against California, New York and other blue states.
The Constitution calls for an “actual enumeration” of the nation’s population every 10 years, and the 14th Amendment, adopted after the Civil War, said representation in Congress shall be determined by “counting the whole number of persons in each state.” This replaced the infamous “three-fifths” clause which had allowed the Southern states to swell their political clout by counting enslaved persons as three-fifths of a person.
The reference to “whole persons” has been understood to mean that everyone residing in the United States is to be counted in the census, regardless of their citizenship status.
Prior to 1950, the census had asked Americans about their place of birth and citizenship status. Since then, however, that information has been asked of only a statistical sample of the population.
Last year, Ross overruled experts at the Census Bureau and announced he had decided to “reinstate a citizenship question” on the census to provide “block level citizenship voting age population” data. This will “permit more effective enforcement” of the Voting Rights Act and “protect minority population voting rights,” he said.
Veteran voting rights lawyers discounted this explanation.They said the 1965 law had been enforced throughout its history without a need for precise, block-level counts of citizens.
Democratic state attorneys in California, New York and 17 other states filed lawsuits to block the change. Emails released during the litigation revealed that Ross had met with then-White House political strategist Stephen K. Bannon and Kansas Secretary of State Kris Kobach to discuss adding the citizenship question to the census. This was early in 2017, and they “discussed the potential effect on ‘congressional apportionment’ of adding ‘one simple question’ to the census,” Judge Furman wrote.
Republican-dominated states like Texas may find something to like in a ruling that upholds the collection of citizenship data. The Lone Star State, like California, could lose representation in Congress if its total population shrinks in comparison to other states. But using citizenship data could help Republicans in Texas maintain power within the state.
Conservative legal activists have argued for distributing electoral power within states based on citizenship data, not the total population. This would shift power toward suburbs where Republicans have remained strong and away from urban areas where immigrants have fueled gains by Democrats.
Three years ago, the Supreme Court heard a Texas case, Evenwel vs. Abbott, and ruled states may continue to use total population data to draw their voting districts. But the court did not foreclose states from using citizenship data instead in the future.
Edward Blum, the self-described architect of the Texas case, says he expects some states will use the block-level citizenship data if it is available in 2021.
“Just from casual conversations with political types, I think a handful of states — Texas and Florida — will use some metric of citizenship for legislative redistricting if the data is available,” he said.