High-stakes question on census jumps to top court

In a case that could cost California and other immigrant-rich states congressional representation, Electoral College votes and billions of dollars in federal aid, the U.S. Supreme Court granted the Trump administration’s request Friday to bypass a lower court and decide whether the government can add a question on U.S. citizenship to the 2020 census.

Commerce Secretary Wilbur Ross announced in March 2018 that the once-per-decade census would include a citizenship question for the first time since 1950. He said the information would help the government enforce the Voting Rights Act’s protections for racial minorities by helping to design election districts in which minorities would make up a majority of the eligible voters.

Opponents contended the administration’s real motive was partisan — to reduce population counts, and thus political representation, in Democratic strongholds with immigrant families fearful of contact with the government. During a trial in San Francisco last month, a former Census Bureau statistical adviser testified that the bureau’s own staff

report in August estimated that a citizenship question would reduce participation by at least 5.8 percent among households containing noncitizens, regardless of their legal status.

“The census count stands as one of the most critical constitutional functions our government performs, and this administration has taken extraordinary steps to jeopardize the possibility of achieving a full and fair count,” Kristen Clarke, president of the Lawyers’ Committee for Civil Rights Under Law, said Friday.

The Trump administration denies any illicit intent and says censustakers would conduct follow-up visits to households that failed to respond to the initial questionnaire. In Supreme Court filings, government lawyers also argued that courts lack authority to secondguess Ross’ decision, and that the only ones responsible for any undercounts would be “individuals who unlawfully refuse to fill out or return the census form.”

State and local governments have offered evidence, however, that Ross decided to add the citizenship question after meetings with immigration hardliners, months before he heard from the Justice Department in December 2017.

In a ruling last month that found Ross had acted illegally, U.S. District Judge Jesse Furman of New York said administration officials had used the Justice Department’s request “to obtain cover for a decision that they had already made.”

The Supreme Court had previously rejected the Trump administration’s request to block the trial in Furman’s court. But on Friday, the court granted immediate review of the administration’s appeal of Furman’s ruling, which normally would have been heard first in a federal appeals court. The justices will hear arguments in mid-April and rule by the end of June.

The stakes are momentous. Each state’s U.S. House seats, which also determine Electoral College representation, are based on census population counts. Furman said California, among other states, faced a “substantial risk” of losing at least one House seat if the citizenship question was added. In addition, census figures determine the distribution of hundreds of billions of dollars in federal funds to state and local governments nationwide.

The suit before the Supreme Court was filed by 18 states, led by New York, and a number of local governments including San Francisco. In a related case, a federal judge in San Francisco heard closing arguments Friday in a suit by the state of California and cities including Los Angeles, Oakland and San Jose. That case includes the additional argument that the administration would be violating a constitutional requirement to count every U.S. resident, regardless of citizenship, in the census.

The case is Department of Commerce vs. New York, No. 18-966.