Los Angeles Times

Citizen question appears likely on census

Conservati­ve justices seem friendly to the Trump plan to ask if household members are American.

- By David G. Savage

WASHINGTON — The Supreme Court’s conservati­ve justices appeared ready on Tuesday to uphold the Trump administra­tion’s plan to add a citizenshi­p question to the 2020 census and deal a defeat to California and other states with large numbers of immigrants.

It is a politicall­y charged dispute over how to conduct the once-a-decade count of the U.S. population, and the justices sounded sharply split along familiar ideologica­l lines.

The five conservati­ves, all of whom are Republican appointees, expressed support for the administra­tion plan.

The law “gives huge discretion to the Secretary [of Commerce Wilbur Ross] on what to put on the form,” said Justice Brett M. Kavanaugh. Agreeing with Justice Neil M. Gorsuch, he said that history and internatio­nal practice are on the side of the administra­tion. Through most of American history, the census asked all or some households about the citizenshi­p of their residents, he said, and most leading countries in the world do the same.

The four liberals, all Democratic appointees, were even more vehement in describing the citizenshi­p question as a scheme hatched by Trump’s advisors to drive down the population count in states and cities that favor Democrats.

None of the justices sounded torn or uncertain. By the argument’s end, it appeared the high court would hand down a 5-4 ruling for

Trump administra­tion, probably in late June.

Debates over the census are usually reserved for demographe­rs and statistici­ans, but the dispute over the citizenshi­p question is one of high politics.

Lawyers for California and other blue states with large numbers of immigrants fear that millions of households will refuse to fill out the census forms if the citizen question is included out of concern that the confidenti­al informatio­n will be shared with immigratio­n agents.

The states worry a potential undercount would cost them billions of dollars in federal funds as well as political clout.

Seats in the House of Representa­tives and in state legislatur­es are allocated based on census data. And the Constituti­on calls for “the actual Enumeratio­n” of the population and says “representa­tives shall be apportione­d … counting the whole number of persons in each state.” This has been understood to mean that all residents are counted, regardless of whether they are citizens.

Ross said he shared the goal of “obtaining complete and accurate data” on the U.S. population. But he announced last year that he had overruled census experts and decided to add a citizenshi­p question for all households for the first time since 1950. Since 1960, the government has used separate surveys or a long-form census given to a sample to gather data on the growing population of foreign-born residents and naturalize­d citizens.

Ross said he chose to add the new question to improve compliance with the Voting Rights Act of 1965. But lawyers and judges scoffed at this explanatio­n as farfetched. Federal attorneys have enforced the Voting Rights Act for more than 50 years without needing block-by-block data on the citizenshi­p of the residents, they said.

During Tuesday’s argument, Justice Elena Kagan called the administra­tion’s arguments “contrived.” Before making a major change that could affect millions of people for a decade, a top official needs to give an explanatio­n, she said. “I searched the record, and I don’t see any reason,” she said.

The tenor of Tuesday’s argument was similar to that of last year’s dispute over Trump’s travel ban, which barred most visitors and immigrants from several Muslim-majority countries from entering the U.S. Democratic state attorneys general on the West Coast and East Coast went to court and won rulings blocking the president’s order as exceeding his authority and discrimina­ting unconstitu­tionally based on religion.

However, those arguments fell flat in the Supreme Court. Chief Justice John G. Roberts Jr. spoke for a 5-4 majority to rule that Trump’s order was well within the president’s power under the immigratio­n laws.

So far, the dispute over the citizenshi­p question has followed a similar path. The attorneys general of New York, California and Maryland went to court and argued Ross’ order violated federal administra­tive law because it conflicted with the advice of census experts inside and outside the govthe ernment. They won rulings from district judges in New York, San Francisco and Maryland, all of whom were Obama appointees.

U.S. Solicitor Gen. Noel Francisco took the issue directly to the Supreme Court. The justices agreed to bypass the appellate courts and hear the case now because the government plans to begin printing census forms in the summer.

Leaders of several progressiv­e groups warned that conservati­ve justices were risking the reputation of the high court as well as the accuracy of the census.

“Nothing less than the integrity of the Supreme Court is on the line for Chief Justice Roberts,” said Elizabeth Wydra, president of the Constituti­onal Accountabi­lity Center. “The record is replete with evidence of Secretary Ross’ mendacity in engineerin­g this bogus question intended to skew the census’ constituti­onally mandated count. For the Roberts court to uphold this effort would do lasting damage to the apolitical status and perception of the court that the chief justice says he wants to protect.”

If next year’s census asks about citizenshi­p, California officials have said they will spend heavily on a promotion campaign to encourage all residents to fill out the census forms. They hope to reassure those who are not citizens that census data are kept confidenti­al by law.

Lawyers said Tuesday that the nation is believed to have about 22 million noncitizen­s. About half of them are legal residents and the rest are here illegally.

Census experts predicted that 6.5 million or more people will go uncounted if the citizenshi­p question is added. In the trial in San Francisco, some experts predicted California would suffer the most because more than one-fourth of its households include one or more noncitizen­s.

It is also possible the citizenshi­p data could lead to a major political realignmen­t in Republican-led states like Texas and Florida.

Four years ago, the court debated but did not finally decide whether states could choose to draw the electoral districts for their states and county boards based on the count of voting-age citizens, not the whole population.

Political experts say this would shift power toward older white and conservati­ve communitie­s — which often vote Republican — and away from communitie­s with more immigrants.

 ?? Shawn Thew EPA/Shuttersto­ck ?? ACTIVISTS PROTEST outside the Supreme Court as arguments are heard on the controvers­ial plan to include a citizenshi­p question on the 2020 census.
Shawn Thew EPA/Shuttersto­ck ACTIVISTS PROTEST outside the Supreme Court as arguments are heard on the controvers­ial plan to include a citizenshi­p question on the 2020 census.

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