Census case: Why a measure of citizenry won’t add a query on citizenship

A proposed question on citizenship to be asked in the census next year has been blocked by the U.S. Supreme Court.

In a fragmented opinion that surprised and confused in equal measure, the court ruled that the Department of Commerce – the agency that oversees the Census Bureau – failed to provide adequate justification for its inclusion. The Census Bureau itself had advised Commerce Secretary Wilbur Ross against adding the question, saying it would depress turnout and lead to an inaccurate count. A number of states and nonprofit groups claimed the question was unconstitutional and the process of adding it illegal. Secretary Ross, citing a Department of Justice memo, had claimed the question was necessary to enforce the Voting Rights Act (VRA).

Legally speaking, the case is not closed. The Commerce Department could add the question using a different justification. Such an action could be challenged in the courts however, the Supreme Court ruled today, and the Trump administration has said repeatedly that the 2020 census forms need to be printed next week in order for deadlines to be met. (Census officials have said printing could be delayed until October.)

“You can’t come up with a new reason after months of saying there is no other reason,” said Dale Ho, director of the American Civil Liberties Union’s Voting Rights Project, which challenged the addition of the question, on a conference call with reporters.

“This is not the kind of thing that can happen overnight,” he added. “I think for all intents and purposes this is over.”

There are ways it could not be over, some experts say. For one, President Donald Trump tweeted after the decision came down that he would attempt to delay the census, a constitutionally mandated count that takes place once every 10 years.

Some Democratic lawmakers and advocacy groups believe that an undercount may be unavoidable due to a climate of fear, in immigrant communities in particular, generated by the proposed citizenship question.

“Regardless of the decision today, the damage of bringing this issue up and being part of our national discourse over the course of the last year has been done,” California’s Democratic Gov. Gavin Newsom said today in a press conference.

The Trump administration, he added, is “going to come right back at this.”

‘Contrived’ – but not ‘invalid’

Writing the court’s plurality opinion, Chief Justice John Roberts essentially did two things. Siding with the court’s four liberal justices, he wrote that “the sole stated reason” provided by the Commerce Department for including a citizenship question – the VRA rationale – “seems to have been contrived.” In particular, he cited evidence that Secretary Ross had begun looking into adding the question soon after entering office, long before the Justice Department sent the VRA memo.

The court’s four conservative justices dissented from that section of the opinion, with Justice Clarence Thomas writing that it “reflects an unprecedented departure from our deferential review of discretionary agency decisions.” Where Chief Justice Roberts sided with his conservative colleagues was in holding that the Commerce Department’s action is not “substantively invalid,” and said the agency has broad discretion in deciding what can be included in the census form. In essence: The department can include a citizenship question; it just needs a justifiable reason to do so.

What today’s opinion never mentioned was the discovery, and explosive legal fallout, of research done by conservative political strategist Thomas Hofeller showing that adding a citizenship question to the census would lead to the Republican Party having an even greater advantage in redistricting by undercounting Latino populations.

Mr. Hofeller died last August, but work files discovered by his estranged daughter included both his unpublished 2015 analysis that a census citizenship question would benefit Republican redistricting plans and a document created in 2017 with a paragraph that appears word for word in the Justice Department letter the administration later used to justify adding the question.

The Supreme Court “has left open the possibility that a new rationale could get support from five justices,” wrote Jennifer Nou, a professor at the University of Chicago Law School, in an email. “The difficulty the [Commerce Department] faces is whether they would be able to find a new, convincing reason in light of the more recent evidence suggesting that the genuine motivation was to aid partisan gerrymandering.”

The so-called Hofeller files, which came out after the Supreme Court heard oral argument in the case, triggered a new claim from plaintiffs in Maryland that adding the citizenship question would also violate the Constitution’s Equal Protection Clause by disadvantaging Hispanics. Earlier this week the U.S. Court of Appeals for the Fourth Circuit sent the case back to the Maryland district court in order to evaluate the new claim.

The court “refused to ignore the obvious backstory that resulted in the addition of a question that would have caused a significant undercounting of people of color, among others,” says Martin Flaherty, co-director of the Leitner Center for International Law and Justice at Fordham University in New York.

With today’s Supreme Court decision, the Maryland case is now effectively paused – as is a citizenship question case being litigated in California – pending new action by the New York district judge whose decision the justices reviewed.

Once that action is taken the Commerce Department could add a citizenship question again under a new rationale, but the clock is running out, says Justin Levitt, a professor at Loyola Law School.

“Given the history of this particular decision, and particularly given the amount of scrutiny likely to be on [Secretary Ross] right now for coming up with a real reason, I’m not sure that time is available,” he adds.

“The Census Bureau has long said that, absent extraordinary resources,” he continues, “June 30 is the drop-dead deadline for figuring out what’s on and what’s off [the form]. That’s Sunday; that’s not much time.”

‘Work to do’

Some conservatives say the Commerce Department should do what it has to to get a citizenship question on the 2020 census.

“The American people want to know how many citizens are in our country. And they deserve to know. We’ve asked the citizenship question in the past,” tweeted Rep. Jim Jordan, R-Ohio. (The Census Bureau last included a citizenship question in 1950.)

President Trump also tweeted that he has “asked the lawyers if they can delay the Census, no matter how long” until the Supreme Court can be given information “from which it can make a final and decisive decision on this very critical matter.”

Meanwhile, state governments and advocacy groups are concerned that, regardless of whether there is a citizenship question or not, turnout could be depressed in immigrant communities.

“Even the specter of the citizenship question has intensified this climate of fear,” said Vanita Gupta, former head of the Justice Department’s Civil Rights Division and now president of the Leadership Conference on Civil and Human Rights, on a conference call with reporters. “We still have a lot of work to do to make sure every person in America is counted.”

Governor Newsom noted that days ago in California state officials were warning immigrant communities about possible raids by federal agencies, saying not to answer the door unless there’s a warrant.

“Now we’re letting everybody know it’s critical that they answer the questionnaire and the survey,” he said. “So we have work to do.” 

Whether the citizenship question returns to the courts or not, several scholars noted the significance of the Supreme Court’s pointed rebuke of the Trump administration.

“It’s worth taking a moment to pause over the court saying, ‘You gave us a reason for this, and you lied.’ That’s what the court said today,” says Professor Levitt. “That is extraordinary. It’s an extraordinary window into the decisionmaking process of this administration.”

Staff writers Harry Bruinius and Francine Kiefer contributed to this report from New York and Los Angeles.