Justices will rule on census question about citizenship
Case will be heard in April since forms are printed in June.
The WASHINGTON — Supreme Court agreed Friday to decide whether the Trump administration may add a question about citizenship to the next census questionnaire.
Critics say adding the question would undermine the accuracy of the census, because both legal and unauthorized immigrants might refuse to fill out the form. By one government estimate, about 6.5 million people might decide not to participate.
That could reduce Democratic representation when congressional districts are drawn in 2021 and affect the distribution of hundreds of billions of dollars in federal spending.
The Supreme Court stepped in before any appeals court had ruled on the matter, and it put the case on an unusually fast track, scheduling arguments for April so that it can issue a decision before census forms are printed in June.
Wilbur Ross, the commerce secretary, has said he ordered the question to be added in response to a December 2017 request from the Justice Department, which said that data about citizenship would help it enforce the Voting Rights Act of 1965.
Last month, Judge Jesse Furman of the U.S. District Court in Manhattan issued a detailed decision after an eight-day trial. He concluded that Ross had dissembled, saying that “the evidence is clear that Secretary Ross’ rationale was pretextual.”
“While the court is unable to determine — based on the existing record, at least — what Secretary Ross’ real reasons for adding the citizenship question were, it does find, by a preponderance of the evidence, that promoting enforcement of the” Voting Rights Act, or VRA “was not his real reason,” Furman wrote. “Instead, the court finds that the VRA was a post hoc rationale for a decision that the secretary had already made.”
Furman had called for Ross to be questioned under oath, but the Supreme Court blocked that order in October. Justice Neil Gorsuch, joined by Justice Clarence Thomas, said the court should have gone further, shutting down all pretrial fact-gathering in the census case. Gorsuch added that there was no indication of bad faith in Ross’ conduct.
“There’s nothing unusual about a new Cabinet secretary coming to office inclined to favor a different policy direction, soliciting support from other agencies to bolster his views, disagreeing with staff or cutting through red tape,” Gorsuch wrote. “Of course, some people may disagree with the policy and process. But until now, at least, this much has never been thought enough to justify a claim of bad faith and launch an inquisition into a Cabinet secretary’s motives.”
In November, the Supreme Court rejected a request from the Trump administration to halt the trial, over the dissents of Thomas, Gorsuch and Samuel A. Alito Jr.
In his ruling last month, Furman relied on evidence in the so-called administrative record, meaning the materials the government said Ross had considered before making his decision.
Evidence presented at the trial showed that Ross had wanted to add the question long before the request from the Justice Department. The letter from the Justice Department, Furman wrote, was an attempt “to launder their request through another agency — that is, to obtain cover for a decision that they had already made.”
The lawsuit challenging the addition of the question was filed by New York, other states, localities and advocacy groups. They said that asking the question was a calculated effort by the administration to discriminate against immigrants.
In urging the Supreme Court to review Furman’s decision, Solicitor General Noel Francisco wrote that Ross had wide discretion over the census that could not be second-guessed by courts. He added that questions about citizenship have often been asked in earlier censuses.