Supreme Court blocks plan to add citizenship question to 2020 census

Kadia Tubman and Lisa Belkin
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Photo illustration: Yahoo News; photos: AP, census.gov, Getty Images
Photo illustration: Yahoo News; photos: AP, census.gov, Getty Images

In a ruling with far-reaching political and economic implications, the Supreme Court decided in a 5-4 vote today that a citizenship question could not be included on the 2020 census — for now — because the Department of Justice’s explanation for seeking to add one was inadequate.

“We do not hold that the agency decision here was substantively invalid,” wrote Chief Justice John Roberts, who was the swing vote in the court ruling to send the case back to a lower court. “But agencies must pursue their goals reasonably.”

The Trump administration had asked for the question, with Commerce Secretary Wilbur Ross saying it was necessary to help the Department of Justice enforce the Voting Rights Act (VRA) of 1965. But a suit brought by 18 states and six cities charged that including the question would have a chilling effect on respondents, resulting in an undercount that would mean less money and political power to states with large immigrant populations.

After a Manhattan district judge ordered the Department of Commerce to remove the citizenship question from the 2020 census, stating that it was “unlawful for a multitude of independent reasons,” the Trump administration filed an appeal and the Supreme Court stepped in, bypassing what would likely have been a lengthy federal appeals court process.

Trump blasted the Supreme Court ruling, tweeting from Osaka, Japan, where he is attending the G-20 conference.

Several weeks before the high court’s decision, evidence was entered in a related case in New York, showing that the origins of the administration’s request were political. Documents disclosed that the proposal had been designed by a Republican consultant as a way to weight census results in favor of Republican-leaning neighborhoods.

“It is hardly improper for an agency head to come into office with policy preferences and ideas, discuss them with affected parties, sound out other agencies for support, and work with staff attorneys to substantiate the legal basis for a preferred policy,” wrote Roberts. “Yet viewing the evidence as a whole, this Court shares the District Court’s conviction that the decision to reinstate a citizenship question cannot adequately be explained in terms of DOJ’s request for improved citizenship data to better enforce the VRA.”

“Altogether, the evidence tells a story that does not match the Secretary’s explanation for his decision,” he continued. “Unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale — the sole stated reason — seems to have been contrived.”

Article I, Section 2 of the Constitution requires a decennial count of the population of the United States. When James Madison first formulated that plan, its goal was simply to keep track of who lived where in a rapidly growing nation, allocating seats in the House of Representatives according to population. It is still used for that purpose, but over the years other uses for the data have been added, and the list of questions has grown.

A question about citizenship has been included on the census form before. The last time it was asked of every household was 1950. During the next census, in 1960, there was no mention of citizenship, just place of birth. In 1970 the Census Bureau created the first long-form questionnaire, which was sent to 1 in 6 households and which included a citizenship question, although the short form, which continued to be sent to all households, did not ask about citizenship. In 2010 the long form was eliminated in favor of a yearly American Community Survey, while the short form is still sent out every 10 years, per the constitutional mandate.

News agency interns sprint across the plaza at the Supreme Court with copies of the justices' final decisions of the term, in Washington, Thursday, June 27, 2019.  (Photo: J. Scott Applewhite/AP)
News agency interns sprint across the Supreme Court plaza Thursday with copies of the justices' final decisions of the term. (Photo: J. Scott Applewhite/AP)

In today’s decision, Justice Roberts, writing for the majority, underlined the argument that certain vulnerable populations “will likely react in predictable ways to the citizenship question, even if they do so unlawfully and despite the requirement that the Government keep individual answers confidential.”

Activist groups who rallied against the citizenship question celebrated Thursday’s decision, but not without a note of caution.

“By ruling to block the citizenship question, the Supreme Court has put a brake on the Trump administration’s plan to erase and dehumanize communities of color,” Melissa Mark-Viverito, interim president of the Latino Victory Project, said in a statement. “The census question was never meant to help Latino and immigrant communities; it was meant to dilute our voice, deny us equal representation and erode our political power. President Trump wanted to silence our communities, but what he got instead is yet another court rejection of a policy deeply rooted in racism and bigotry.”

“This is probably the best news possible for red states who’ve seen disproportionate growth in their immigration population,” Ali Noorani, head of the National Immigration Forum, told Yahoo News. “Going forward, mayors, district leaders and legislators in rural states need to make clear their communities depend on a clean census, and they're the ones who need this administration to stand down on the inclusion of a citizenship question on the next census.”

Still, advocates for immigrant and minority populations who stand to be most affected by a citizenship question on the census recognized their fight is far from over.

“Today’s Supreme Court ruling doesn’t finally settle the issue,” said Preeti Vissa Kristipati, interim president for the Greenlining Institute, a racial equity nonprofit. “And even if the citizenship question is kept off the 2020 census, at best this is just one step in what will be a long battle – both to stop voter suppression and to end the Trump administration’s relentless war against science and accurate data.”

“We believe that the clock is running and that the Commerce Department should abandon its efforts to include a citizenship question for census 2020,” said John C. Yang, president and executive director of Asian Americans Advancing Justice | AAJC. “But if it doesn’t, we will continue to fight to ensure that our communities are counted fully, and that includes robust litigation efforts.”

Much was at stake in this decision. The decennial census not only shifts the size of congressional delegations, but also is used to allocate funds for more than 300 federal programs. The census-based population of a community determines how much funding is received for everything from the social safety net to municipal infrastructure.

The Supreme Court has ruled on census methodology before. In preparing for the 2000 census, the Clinton administration wanted to allow the bureau to statistically adjust data to reflect known undercounts and overcounts. For instance, a re-analysis determined that 1 in 20 African-Americans had not been counted in 1990. Republicans in Congress objected, and eventually the Supreme Court ruled that the official tally must be based on actual counts, not statistical projections.

The actual census count is to be held in April 2020. Census officials have been awaiting the court’s decision because the questionnaires are scheduled to be printed this month.

Trump earlier this month called the controversy over the question “totally ridiculous.”

“I think when the census goes out you should find out whether or not — and you have the right to ask — whether somebody is a citizen of the United States,” the president said.

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