WHAT COURT RULINGS WILL MEAN FOR CENSUS COUNT
White House move could alter balance of power in Congress
• 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.