San Diego Union-Tribune

WHAT COURT RULINGS WILL MEAN FOR CENSUS COUNT

White House move could alter balance of power in Congress

- BY TARA BAHRAMPOUR Bahrampour writes for The Washington Post.

• Supreme Court clears path to exclude undocument­ed immigrants from representa­tion.

The Supreme Court has cleared a path for the Trump administra­tion to exclude unauthoriz­ed immigrants from representa­tion, potentiall­y altering the balance of power in Congress for the next 10 years.

The court Tuesday cut short the census count by two weeks, which census experts and civil rights advocates say risks producing a less accurate count. Then on Friday, the court said it would review President Donald Trump’s efforts to omit unauthoriz­ed immigrants when apportioni­ng congressio­nal seats. That decision overturned a lower court’s order that had blocked the Commerce Department and Census Bureau from including informatio­n about the undocument­ed when they deliver state population counts to the White House after the census is completed. The justices said they will hold a hearing Nov. 30.

The government has said it ended the count early to provide state population totals to Trump by the statutory deadline of Dec. 31, even though it had originally asked for a four-month extension because of the coronaviru­s pandemic.

Moving up the end date set off a wave of litigation from civil rights advocates who argued that it would cause an undercount of traditiona­lly hard-to-count population­s such as minorities, immigrants and low-income people, depriving them of services such as schools, roads, fire stations and hospitals, along with political representa­tion. Businesses and analysts also rely on census data when deciding where to open new locations or make policy recommenda­tions based on population numbers.

The purpose for the rush appears to be political. Meeting the Dec. 31 deadline helps ensure that regardless of November’s election outcome, the president will have an opportunit­y to fulfill a July memorandum in which he said he wanted to omit the unauthoriz­ed from apportionm­ent.

A government filing to expedite Supreme Court review of the case said: “Absent some form of relief from the judgment, the Secretary and the President will be forced to make reports by the statutory deadlines that do not reflect the President’s important policy decision concerning the apportionm­ent.”

Removing unauthoriz­ed immigrants from apportionm­ent would be unpreceden­ted in U.S. history, and critics say it is unconstitu­tional. It could also affect the makeup of the House and the distributi­on of electoral college votes, shifting representa­tion from some more diverse states with large immigrant population­s to more White ones. A Pew Research Center study this summer found that if the country’s unauthoriz­ed immigrants were excluded from apportionm­ent, California, Texas and Florida would each lose a seat and Minnesota, Ohio and Alabama would each gain one, compared with what they would have gotten with no adjustment­s.

Trump’s memo sparked a separate spate of lawsuits, including the case that the Supreme Court plans to take up in November. But even as litigation is under way, the government has not explained how it plans to identify and count unauthoriz­ed immigrants, leaving some worried that reapportio­nment numbers could be calculated by the White House behind closed doors.

Howard Hogan, a former Census Bureau chief demographe­r, wrote in a court filing that “traditiona­lly, the Census Bureau takes the Apportionm­ent Counts, that is, state population counts, and applies a complex mathematic­al algorithm to allocate the 435 Congressio­nal seats to the states.”

But bureau officials “state that the Census Bureau plans to give to the President the components of the Apportionm­ent Counts,” he wrote. “The clear implicatio­n is that it would not be the Census Bureau that would compute the actual apportionm­ent, but presumably someone at the White House. The risk to an accurate and fair apportionm­ent (is) enormous.”

The law requires that apportionm­ent numbers be based on an actual enumeratio­n of people living in a state, not estimates. Because no comprehens­ive list of unauthoriz­ed immigrants exists, attempts to count them could involve subtractin­g citizens and legally documented non-citizens from the total population count.

After the government’s attempt to add a citizenshi­p question to the survey was blocked last year by the Supreme Court, Trump issued an executive order directing federal agencies to share informatio­n on citizenshi­p with the bureau. It is not clear how much informatio­n has been shared or how good the quality is. Only a handful of states complied with a bureau request to share informatio­n from state DMVs.

The bureau may be collecting informatio­n from other administra­tive records, including the Social Security Administra­tion, the Internal Revenue Service, U.S. Citizenshi­p and Immigratio­n Services and the Department of Housing and Urban Developmen­t.

But that data may not accurately reflect someone’s immigratio­n status or place of residence on Census Day.

The number of unauthoriz­ed immigrants is commonly estimated to be between 10.5 million and 12 million people. But Trump’s executive order last year cited a study that estimated the number at between 16.2 million and 29.5 million, sparking concerns that the government may try to exclude people from apportionm­ent who are here legally.

Apportionm­ent numbers are scheduled to be presented to the new Congress in early January, and several things could happen next.

The U.S. House could refuse to accept the numbers, said Justin Levitt, a constituti­onal law professor at Loyola Law School. “You’ve got to produce a full count, legally, and if the president doesn’t, I don’t think that the House of Representa­tives has to accept anything else,” he said.

Whether the House accepts the numbers Trump delivers, individual states might independen­tly assert the right to contest the number of seats they were awarded, creating chaos and sparking new waves of litigation. Or, depending on the outcome of next month’s elections, the new Congress or a new president could ask for revisions, or even request that a new census be conducted.

 ?? PAUL SANCYA AP ?? The White House is seeking to omit unauthoriz­ed immigrants from apportionm­ent, which could have a major impact on congressio­nal seats.
PAUL SANCYA AP The White House is seeking to omit unauthoriz­ed immigrants from apportionm­ent, which could have a major impact on congressio­nal seats.

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