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The court fight over the 2020 census and why it matters

Mention 2020 in the politics-obsessed nation’s capital and the next presidential election immediately comes to mind. But there is another 2020 event fraught with political, economic and other consequences, and it could soon come before the U.S. Supreme Court: the decennial census.

The Trump administration announced last March that the 2020 census would ask the full U.S. population about citizenship for first time since 1950.

The announcement triggered a series of lawsuits around the country, challenging the reinstatement of the citizenship question on the census form. In January, a federal trial judge in New York ruled in a suit brought by 17 states and the New York Immigration Council that Commerce Secretary Wilbur Ross’s decision to add the question violated two federal laws in “multiple independent ways.”

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The administration’s top lawyer before the Supreme Court — Solicitor General Noel Francisco — has asked the Supreme Court to decide whether that trial judge was wrong, before a lower federal appellate court acts on the government’s appeal.

The justices are expected to discuss Francisco’s request during their private conference, and could decide Friday or early next week whether they will hear the government’s appeal.

So what’s the fight about, and should we care?

The short answer is money and power. The Constitution calls for an enumeration of all persons (i.e. the census). The final count affects how much federal funding goes to the states for various programs. The number is also critical to the number of congressional seats each state gets.

What did the government and the states argue?

  • The states, led by New York, claimed the citizenship question would deter full participation, particularly by undocumented immigrants and minorities, and an undercount would undermine the federal government’s constitutional obligation to conduct an “actual enumeration” of the national population. An undercount would result in the loss of federal funds and representation in Congress. They also claimed the decision was “arbitrary and capricious” and discriminated against communities of color.
  • Commerce Secretary Ross initially claimed the Department of Justice sought the citizenship question in order to enforce the Voting Rights Act. He argued that “even if there is some impact on responses, the value of more complete and accurate [citizenship] data derived from surveying the entire population outweighs such concerns.”

What did the trial judge rule?

After a 22-day trial in November, Judge Jesse Furman issued a 277-page decision on Jan. 25, in which he found the decision to add a citizenship question violated the federal Administrative Procedure Act and certain requirements of the Census Act.

  • Furman said Ross “failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices — a veritable smorgasbord of classic, clear-cut [Administrative Procedure Act] violations.”
  • He found that Ross’s claim that the question was needed to enforce the Voting Rights Act was “pretextual” and that he announced his decision “in a manner that concealed its true basis rather than explaining it, as the APA required him to do.”
  • Furman also said “hundreds of thousands—if not millions—of people will go uncounted in the census if the citizenship question is included. That undercount, in turn, will translate into a loss of political power and funds, among other harms, for various plaintiffs.”

What’s next?

The Trump administration told the Supreme Court that the citizenship issue has to be resolved by the end of June so that the census questionnaires can be printed on time. It has asked the justices to grant review and to hold arguments in April or in a special session in May. The court generally ends the term’s arguments in April.

“This case involves an issue of exceptional national importance –the decennial census — and the judgment below, if left to stand would likely be the first instance in our Nation’s history that the judiciary dictated the ‘form and content’ of the decennial census questionnaire,” wrote Francisco for the administration.