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Supreme Court refuses to approve citizenship question on 2020 census

Supreme Court refuses to approve citizenship question on 2020 census
Secretary of Commerce Wilbur Ross. (Cheriss May / TNS)

The Supreme Court dealt a sharp and unexpected defeat to the Trump administration on Thursday, refusing to uphold its plan to ask all households about the citizenship of their residents as part of the 2020 census.

The ruling spares California — at least for now — from a potentially major blow. A question about citizenship was expected to cause a sizable drop in minority participation in the census. The resulting undercount could have led to the loss of at least one congressional district for the state and billions in federal funds, state officials had warned.

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Chief Justice John G. Roberts Jr. said Commerce Secretary Wilbur Ross had not given an honest explanation for his decision to make a major change in the census form at a time of heightened fear in immigrant communities.

“The sole stated reason” cited by Ross — a need to enforce the Voting Rights Act — “seems to have been contrived,” Roberts said, an unusually pointed rebuke from the court. “The evidence tells a story that does not match the explanation the secretary gave for his decision.”

The court’s four liberals joined the chief justice on this key point.

The 5-4 ruling allows the administration to start over and try to come up with a new rationale for adding a citizenship question for the first time since 1950. But with the deadline for printing census forms rapidly approaching, it was unclear whether the administration could do that — and get through the inevitable court challenges — in time.

President Trump, currently in Japan for the Group of 20 meeting, responded angrily and suggested he might try to delay the census, despite the constitutional mandate that it be conducted every 10 years.

In a message on Twitter, Trump said the ruling “seems totally ridiculous.”

“Only in America!” he tweeted, adding that he had asked his attorneys “if they can delay the census, no matter how long,” until the Supreme Court can be provided the information it is seeking.

Three federal judges — in New York, San Francisco and Maryland — handed down rulings that blocked the citizenship question from being added to the census. And those injunctions remain in place.

The high court said that “in these unusual circumstances,” the judge in New York was correct to demand a better explanation from the Commerce Department.

Dale Ho, an ACLU lawyer who argued the case in the high court, said Ross now confronts a dilemma of his own making. “He said all along the only reason for doing this was for better enforcement of the Voting Rights Act. It seems implausible he can come back now and articulate a legitimate reason which he didn’t bring forward before,” he said.

In a statement, Justice Department spokeswoman Kelly Laco said, “We are disappointed by the Supreme Court’s decision today. The Department of Justice will continue to defend this administration’s lawful exercises of executive power.”

Some of Trump’s supporters went further, denouncing Roberts.

American Conservative Union chair,am Matt Schlapp tweeted that he was in favor of “impeaching the chief justice for lying to all of us about his support of the Constitution.”

The case badly divided the justices. Four conservatives would have allowed the administration to move forward. The court’s four liberals rejected its actions.

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Roberts, who had the deciding vote, wrote that the law would have allowed the administration to move ahead if it had provided a straightforward justification.

“Reasoned decision-making under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction," Roberts said.

He said the law “is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”

Civil rights lawyers and Latino advocates were heartened by the outcome. Kristen Clarke, president of the Lawyers’ Committee for Civil Rights, said she was “pleased that the Supreme Court has seen through the charade perpetrated by Secretary Ross. The census is too important to become a toy for government officials to use to achieve political ends.”

Thursday’s decision could also rebound against the Trump administration in other cases involving changes to environmental and immigration rules and policies. Many of those changes have been challenged in court on the basis that the administration did not adequately explain its rationale or follow the proper procedures.

The four conservatives warned of that potential.

"For the first time ever, the court invalidates an agency action solely because it questions the sincerity of the agency's otherwise adequate rationale," said Justice Clarence Thomas.

He predicted many more such challenges. “It is not difficult for political opponents of executive actions to generate controversy with accusations of pretext, deceit and illicit motives,” he wrote.

Justices Neil M. Gorsuch and Brett M. Kavanaugh agreed, and Justice Samuel A. Alito Jr. dissented separately.

California Gov. Gavin Newsom said Thursday that the state would remain vigilant, regardless of the Supreme Court’s action, to ensure an accurate count of residents in 2020.

“We are encouraging our diverse communities of the power and potency of participation, and we are going to make sure we run an unprecedented campaign to touch every corner of this state,’’ he said, adding that California is spending $187 million to ensure a complete count.

Many conservatives had been hoping to use the census to obtain more accurate citizenship data, which could allow states to redraw their election maps based on the number of eligible citizens, rather than the total population, as is currently used.

In his ruling, Roberts made no mention of the new constitutional claims that have been raised in recent weeks in response to documents found in the files of Tom Hofeller, a Republican strategist.

Hofeller, who died last year, had advised his clients four years ago that the use of voter data “would be advantageous to Republicans and non-Hispanic whites,” and “would clearly be a disadvantage for the Democrats.” His words came to light recently after his daughter turned over his computer files to lawyers for Common Cause in North Carolina.

Earlier this week, U.S. District Judge George Hazel in Maryland said he would look into the new evidence to decide whether Ross aimed to discriminate against Latinos.

Last year, Ross said he had decided to add the citizenship question in response to a request from the Justice Department, citing its duty to enforce the Voting Rights Act of 1965. Sometimes, judges and government lawyers need to know if there are enough black or Latino voters in an area to draw an election district that might elect a minority representative.

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Voting rights experts scoffed at that explanation. They said past administrations had vigorously enforced the voting rights law for more than 50 years without block-by-block data on the number of residents who were adult citizens. In such cases, judges had relied on data from census surveys.

Lawyers for New York, California and 15 other Democratic-leaning states went to court, alleging Ross’ move was illegal and unconstitutional, motivated by a desire to help Republicans.

In January, U.S. District Judge Jesse Furman in New York blocked the citizenship question and issued a 277-page opinion describing how Ross had failed to follow the advice of census experts or explain his reasons for making a change that could lead to a severe undercount. He said Ross’ explanation looked to be pretext.

Judges in San Francisco and Maryland handed down similar rulings.

The Supreme Court agreed to hear the administration’s appeal in the case of Department of Commerce vs. New York on a fast-track basis because the government said it needed to begin printing census forms by July.

Times staff writer Taryn Luna contributed to this report.

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