The Supreme Court blocked the Trump Administration’s attempt to add a citizenship question to the 2020 Census. Justices remanded the case, Commerce Department v. New York, back to a lower court.
The ruling was nuanced. It found that Commerce Secretary Wilbur Ross was not “substantively invalid” in adding the question, and that he didn’t violate the Census Act or the enumeration clause by doing so.
But the court called his rationale for the action “more of a distraction.”
“They’ve argued in all the courts and to the public that we did this just because [the] Department of Justice wanted to enforce the Voting Rights Act, but the Supreme Court found that rationale came later. That was after they had already made the decision [to add the question,]” said Al Kauffman, professor of law at St. Mary’s University.
It won’t be easy for the Commerce Department to come up with a new reason to add the question after so much press.
“I think they are going to have a very heavy burden,” Kauffman said.
The citizenship question has been found to drive down responses from minority groups both noncitizen and citizen.
Critics argued it could cost Texas a congressional seat. Additionally, the Center for Public Policy Priorities estimates a 1% undercount could cost the state $300 million a year in federal funding for things like highways, Medicaid and schools.
Estimates of the undercount are as high as 8%.
“That would be absolutely devastating to the Texas economy, to our representation, to businesses investing in Texas, so this is why I say the stakes couldn’t be higher,” said Luis Figueroa, legislative and policy director for CPPP.
The question may still end up on the census, but Figueroa and other opponents of the move are calling today a victory.
“I think we are pretty excited about the decision,” said Figueroa. “It was saying the rationale given by the Commerce Department is not gonna fly.”
Whether or not the 2020 Census has the question, the emotions surrounding it may result in more error outside of just immigrant communities.
“Somebody who previously was thinking we should have the citizenship question on there, and it’s not on there, maybe they’re not going to respond,” said Loyd Potter, Texas State Demographer. “And the other side of it is somebody just — even if it's not on there — they’re so angry and upset that maybe they’re not gonna respond.”
Potter said the question wasn’t inherently controversial. It has been used in past Census questionnaires and is now largely used in the American Community Survey. He takes issue with the way the administration bucked the systematic process of adding questions. It has politicized the Census, he said.
Many advocates argued the question was motivated by racial discrimination that, in turn, would dilute the political power of certain groups. That question wasn’t posed in the New York case before the Supreme Court Thursday.
The Mexican American Legal Defense and Educational Fund, or MALDEF, are arguing it in another ongoing federal case.
“The public has a right to know the real reason an agency is acting,” said Denise Hulett, lead counsel for MALDEF. “We contend in our lawsuit that the real reason was intentional racial discrimination in order to achieve partisan ends.”
Hulett’s and other advocates' work was bolstered by Thursday’s ruling in the short term.
“The ruling is very good news for us, in that the Census Bureau cannot proceed to the printer with a questionnaire that includes a citizenship question,” Hulett said.
The federal district court in New York will give the Commerce Department a chance to remedy the situation with a new rationale.
“The defect that the court identified was that he lied about why he wanted to ask the question,” Hulett said. “I don’t know how you fix a lie.”
When the New York case goes back to district court, it will likely gain new evidence. The discovery in May of emails and data from the deceased Republican political operative Thomas Hoffeler showed political motivations for adding the question. It wasn’t included in Commerce v. New York because it was discovered after the case was argued at the Supreme Court.
If the Commerce Department does wants the question added to the next Census it has a tight timeline to do so.
The case would need to be reargued and reappealed in an emergency motion to the highest court. And justices would have to agree to hear it
All that has to happen before the Census starts printing questionnaires. Up until recently it had argued that had to happen by June 30. Now it has said it can wait until as late as October 31.
Paul Flahive can be reached via email at Paul@tpr.org or followed on Twitter @paulflahive.
