Serious questions about the 2020 Census case in SCOTUS today

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FILE PHOTO: An informational pamphlet is displayed at an event for community activists and local government leaders to mark the one-year-out launch of the 2020 Census efforts in Boston, Massachusetts, U.S., April 1, 2019. TO MATCH INSIGHT USA-CENSUS/BUSINESS REUTERS/Brian Snyder/File Photo - RC1ACDFA95E0

The Trump administration’s move to add a citizenship question to the 2020 Census was argued in the U.S. Supreme Court this morning. First, the case background from the Washington Post, The Four Pinocchio claim at the center of the census citizenship question:

[T]he justices could be weighing a Four-Pinocchio claim by Commerce Secretary Wilbur Ross.

Ross, who oversees the Census Bureau and approved the question last year, claimed in congressional testimony that the Justice Department “initiated the request for inclusion of the citizenship question.”

But, as part of this court case, emails were released showing that Ross was talking to top advisers to President Trump and maneuvering to add the citizenship question months before the Justice Department sent a letter in December 2017 with a formal request.

The emails show that Ross pressed Justice Department officials behind the scenes to send him the question and then, in public, claimed it was their idea, not his.

Three federal judges, in California, Maryland and New York, have called Ross’s stated reason for adding the question a “pretext” and concluded that he violated federal law by concealing the question’s origins. (They also ruled against Ross on various other grounds.)

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More than a dozen states and cities and a range of groups sued to block Ross’s move, calling the citizenship question a ruse by the Trump administration to weaken the political power of heavily Democratic states with large immigrant populations. Census data is used to allocate federal funds, draw legislative districts and reapportion congressional seats.

The three federal judges who have ruled on these claims all found that adding the citizenship question would probably produce an undercount. Census responses can’t be shared with law enforcement agencies conducting immigration sweeps or deportations. But undocumented immigrants or their relatives may assume otherwise and take a pass on filling out the census, experts told the courts.

In an amicus brief to the Supreme Court, five former Census Bureau directors who served in Democratic and Republican administrations said that “the citizenship question should not be included in the 2020 Census.” (Ross overruled career Census Bureau officials in deciding to add the question.)

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The three judges separately concluded that Ross violated the Administrative Procedure Act in multiple ways. One of the APA violations was what the judges each described as Ross’s scientifically dubious and “pretextual” claim that the Justice Department requested the citizenship question to get better data for voting rights cases.

On Jan. 15, U.S. District Judge Jesse M. Furman ruled that Ross violated the Administrative Procedure Act in multiple ways (“a veritable smorgasbord of classic, clear-cut APA violations”) when he added the citizenship question.

“In sum, the evidence in the Administrative Record and the trial record, considered separately or together, establishes that the sole rationale Secretary Ross articulated for his decision — that a citizenship question is needed to enhance DOJ’s VRA enforcement efforts — was pretextual,” Furman wrote. “Because Secretary Ross’s stated rationale was not his actual rationale, he did not comply with the APA’s requirement that he ‘disclose the basis of [his]’ decision.”

U.S. District Judge George J. Hazel ruled April 5 that “the Administrative Record establishes that the Secretary’s articulated reason for adding a citizenship question to the 2020 Census — responding to DOJ’s request — was not his real reason” and that “because the VRA enforcement rationale did not actually motivate the Secretary’s decision, the Secretary has failed to ‘disclose the basis of’ his decision in violation of the APA.”

U.S. District Judge Richard G. Seeborg ruled March 6: “Secretary Ross violated the APA by failing to disclose the basis for his decision to add a citizenship question to the 2020 Census. As explained in the Findings of Fact Based Exclusively on the Administrative Record, the evidence overwhelmingly shows that Secretary Ross decided to add the citizenship question well before DOJ made the request in December of 2017 and that his reason for doing so was not to improve enforcement of Section 2 of the VRA. This purported purpose was a mere pretext.”

Seeborg also said: “While it is of course appropriate for an incoming cabinet member to advocate for different policy directions, to solicit support for such views from other agencies, and to disagree with his or her professional staff, this record reflects a profoundly different scenario: an effort to concoct a rationale bearing no plausible relation to the real reason, whatever that may be, underlying the decision.”

Hazel, who sits in Maryland, and Seeborg, in California, both found that adding the citizenship question would violate the Constitution’s enumeration clause (the section that mandates a population count).

Next, what happened at oral argument in front of Sen. Mitch McConnell’s “rigged” conservative Supreme Court? Amy Howe at SCOTUSblog reports, Argument analysis: Divided court seems ready to uphold citizenship question on 2020 census:

Arguing for the federal government today, U.S. Solicitor General Noel Francisco began by stressing that the citizenship question has been asked on the census for nearly 200 years. But he was quickly interrupted by Justice Sonia Sotomayor, who pushed back. It hasn’t been included in the census sent to all households since 1950, she reminded Francisco, because every secretary of commerce and every statistician has recommended against asking it.

The other liberal justices then took turns with Sotomayor peppering Francisco with questions, often diving deep into the details of the case. Some justices focused on Ross’ decision to include the question even though the Census Bureau had told him that asking the question would lead to fewer responses and could make information about citizenship worse, rather than better.

Francisco responded that Ross had fully acknowledged both the advantages and disadvantages of asking the citizenship question on the 2020 census. The question before the court, he stressed, really boils down to whether Ross’ decision to bring back the citizenship question was reasonable – which it was.

Sotomayor was again skeptical, telling Francisco that the government’s rationale amounted to plucking out one sentence from the record and relying on it, while ignoring everything else that suggests that adding the question would reduce the accuracy of the data.

Justice Elena Kagan echoed Sotomayor’s concerns. The secretary of commerce can deviate from the Census Bureau’s experts, she conceded, but he needs a reason to do so. “I don’t see any reasons,” Kagan told Francisco. Instead, Kagan continued, it seemed more as though the Department of Justice’s need for the citizenship data was “contrived”; lots of civil rights officials at the Department of Justice, Kagan observed, have never asked for this data.

Arguing on behalf of the state and local governments challenging the decision to add the citizenship question, New York Solicitor General Barbara Underwood began by complaining that Ross had decided to add the citizenship question even though the documents on which he relied to make that decision contained strong evidence that doing so would lead to an inaccurate count. All the reasons that Ross has cited to justify adding the question, Underwood asserted, are false.

Chief Justice John Roberts pushed back, asking Underwood whether having the citizenship data wouldn’t affect enforcement of the federal Voting Rights Act. Isn’t this critical data, Roberts asked?

So Justice Roberts is giving credence to the “pretextual” reason that the Justice Department requested the citizenship question to get better data for voting rights cases, which was rejected by the three lower Appellate Courts on the weight of the evidence in the trial record. He does not seem to be bothered that Wilbur Ross violated the Administrative Procedure Act. Wilbur Ross lied? IOKIYAR.

Justice Brett [“I like beer“] Kavanaugh noted that the United Nations recommends including a citizenship question. Not only has the United States often asked the question, Kavanaugh stressed, but other countries – including Spain, Germany, Mexico, Canada and Ireland – also ask about citizenship. Does this international and historical practice affect how we look at the decision to add the question? Kavanaugh queried.

Underwood responded that the information provided by the question is “very useful for a country to have.” But should it be included on the census, she countered, whose principal purpose is to count people, knowing that it will reduce response rates?

Justices Samuel Alito and Neil Gorsuch, however, pushed back against the idea that including the citizenship question, standing alone, was the root cause of a lower response rate. Citizens and noncitizens are different in a lot of ways other than whether they have citizenship, Alito observed: For example, there may be socioeconomic differences between a household with citizens and one with noncitizens, as well as language differences. So there may be other explanations, Alito suggested, for why households with noncitizens would be less likely to return their citizenship questionnaires.

Gorsuch said the same thing a few minutes later to Dale Ho, who argued on behalf of the civil rights groups challenging the inclusion of the citizenship question. Some states, Gorsuch told Ho, argue that there are other explanations for the reduced response rates beyond the inclusion of the citizenship question on the surveys that have gone out to some households – for example, the questionnaires may be too long, and less affluent households may not have the time to fill them out completely. What do we do, Gorsuch asked, with the fact that we don’t know?

General Counsel of the House of Representatives Douglas Letter … told the justices that anything that undermines the accuracy of the census count is a problem, even if the information is wanted for another [pretextual] reason – such as enforcing federal voting rights laws. But he didn’t seem to make much headway: Even Justice Ruth Bader Ginsburg, who seemed to be siding with the challengers for most of the case, noted that Congress had been made aware of the decision to include the citizenship question but hadn’t taken any action. Kavanaugh then chimed in, asking Letter why Congress didn’t prohibit the use of a question about citizenship on the census, the same way it had banned questions about religion.

The House can readily pass a bill to address this issue, but “The Enemy of The People,” Senate Majority Leader Mitch McConnell, and the personality cult followers of Donald Trump in the Senate will never deny their “Dear Leader” this Census question he wants to appeal to his white nationalist base and to “own the libs” in blue states with a high concentration of undocumented immigrants.

The stakes in the case are high. The federal government uses the data from the census to divide up the 435 members of the U.S. House of Representatives among the 50 states. After the 2010 census, for example, Texas gained four seats in the House and Florida gained four, while New York – the lead plaintiff in today’s case – and Ohio both lost two. Census data is also used to allocate federal funding for a wide variety of programs: In fiscal year 2016, the federal government distributed over $900 billion through such programs. The challengers say that, as a result, including the citizenship question could lead to fewer members of Congress and less federal funding for states with large populations of undocumented and Hispanic residents – many of which tend to skew Democratic.

A decision in the case is expected by summer.

William Busbee, Professor of Georgetown University Law Center, writes today, What the Census Case Will Say About the Supreme Court:

Hence the real test is of the Supreme Court’s integrity and politicization. Will justices long professing concern about arbitrariness by administrative agencies grapple with the Commerce Department’s thoroughly documented irregularities? Will they adhere to the court’s own abundant precedents mandating judicial scrutiny of agencies?

If the court’s conservatives dodge the troubling facts and violations of law in this case, then their political stripes will be revealed. But if they call it straight and reject this politicized, illegal and unjustified action, they will do much to enhance the court’s reputation during these times of partisan division.

Ari Berman explains, The Supreme Court Could Shift Power to Republicans for the Next Decade:

A nine-word question that the Trump administration added to the 2020 census heads to the Supreme Court on Tuesday, with the potential to derail the entire census and shift power to the Republican Party for the next decade.

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[T]there’s a good chance the Supreme Court could rule in favor of the Trump administration. The conservative majority on the court has consistently endorsed Republican-backed voting restrictions and extreme gerrymanders, issuing decisions in the past decade that gutted the Voting Rights Act, endorsed aggressive voter purging, upheld racial gerrymandering in Texas, and declined to rein in partisan gerrymandering. A decision upholding the citizenship question could have the most lasting impact of them all.

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Sources: Social Explorer, Census Bureau | By Weiyi Cai

Garrett Epps, Professor of constitutional law at the University of Baltimore explains A Supreme Court Case That Will Affect Every Aspect of National Life:

The outcome in New York v. Department of Commerce, which the Supreme Court will hear on April 23, will affect virtually every aspect of our national life, from the right to vote to the balance of power in Congress and the Electoral College to the scope of federal educational, health, and welfare programs.

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No one misunderstands the scope of the case. American politics in 2019 is a death duel between a side that, buoyed by popular support and demographic trends, favors broad voting rights, nonpartisan apportionment, and an accurate population count; and an opposing side that, facing a demographically diminishing political base, is moving to restrict the franchise and skew political power toward its strongholds.

That restrictionist side wants a census that will strip power from cities and states with racially diverse and immigrant-heavy populations. That side has also moved aggressively to exert control over the federal bench in general and the Supreme Court in particular, and now oozes confidence that its handpicked justices will dance to Wilbur Ross’s tune.

We will learn whether the Roberts Court has any integrity by this summer.




1 COMMENT

  1. Tierney Sneed at Talking Points Memo made a good catch at oral argument. Gorsuch Comments Preview Endgame If Citizenship Question Is Added To Census, https://talkingpointsmemo.com/dc/gorsuch-comments-preview-endgame-if-citizenship-question-is-added-to-census

    Justice Neil Gorsuch can’t wait to let states exclude noncitizens from redistricting.

    Multiple times during Tuesday’s hearing on the Trump administration’s move to add a citizenship question to the census, Gorsuch returned to vague allusions to an unsuccessful 2016 Supreme Court case that dealt with that possibility.

    Gorsuch’s lines of inquiry didn’t get too much traction at Tuesday’s arguments, which mostly focused on the technical considerations of Secretary Wilbur Ross’ decision to include the question. But, in a way, they were appropriate, given that overhauling how legislative districts are drawn — a massive voting rights change that would diminish the political power of urban and diverse communities — appears to be the endgame of the current push to add the question.

    Through his questioning, Gorsuch hinted that he was sympathetic to the arguments made in this case by conservative advocates who have signaled they will seek exclude noncitizens from redistricting if the citizenship question remains on the census.

    The last case that tried to do this was Evenwel v. Abbott. The challengers argued that states should be prohibited from drawing state legislative districts on the basis of total population — as is currently near-universally done — and draw them on some citizenship-based metric instead.

    An argument defending the use of total population made in an amicus brief asserted that there isn’t currently citizenship data provided by the Census that is accurate enough for redistricting.

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    Gorsuch was not yet on the court when Evenwel was unanimously decided in favor of letting states continue to use total population for redistricting. But his conservative allies, Justice Clarence Thomas and Justice Samuel Alito, in their respective concurrences, said that that states should be able to use whatever metric they’d like and said a separate case should decide this question on whether states have that latitude.

    If the citizenship question is allowed to stay on the census — and the conduct of conservative justices Tuesday suggests it will be — a case establishing whether the data could be used to cut noncitizens from the redistricting count would only be a matter of time.

    In fact, the organization that spearheaded the Evenwel case filed a friend-of-the-court brief that made plain that the question should stay on the census so states and localities could explore drawing districts based only on citizens.

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