SCOTUS to Rule on Whether Citizenship Question Belongs on 2020 Census Form



The U.S. Supreme Court has until the end of June to decide whether the Trump administration can add a question about citizenship to the 2020 Census form for the first time since 1950, contrary to the advice of career Census Bureau experts.

Commerce Secretary Wilbur Ross, the only person with legal authority over the census, says the question is needed to enforce laws that protect the rights of minority voters, but opponents insist that its real purpose is to find out whether undocumented immigrants are present in a household and that it would likely result in underreporting.

According to William Frey, a senior fellow at the Brookings Institution, about 14% of the U.S. population reside in households with one or more noncitizens. Frey said the groups that stand to be the most negatively affected by underreporting are Latinos, Asians, young people and urban residents, whose reduced response would lead to a faulty reapportionment of Congress, an underrepresentation of higher immigrant-population states, and legislative districts that overrepresent whites, older residents and rural populations.

Last month, New York Southern District Court Judge Jesse Furman blocked the Commerce Department from adding the controversial question to the upcoming count, questioning Secretary Ross’s motives behind it and saying that it broke a “veritable smorgasbord” of federal laws.

The court ruled that although Ross did have the authority to add the question to the census, the way in which he carried out his authority may have violated the plaintiffs’ rights to equal protection under the law, and according to Judge Furman, adding such a question would potentially prevent millions of people from being counted, particularly those in households with noncitizens and Hispanic people, making the once-a-decade “actual enumeration” of the population required by the Constitution far from accurate. “That undercount, in turn, will translate into a loss of political power and funds, among other harms,” he wrote in his opinion.

The federal court’s decision, which came after a two-week trial in Manhattan, is considered a win for civil rights groups who argued that the addition of the citizenship question would disenfranchise minority groups, but the Supreme Court will soon have the last word.

On February 15, the U.S. Supreme Court added the case – by all accounts a political powder keg involving civil rights groups, 18 states, the District of Columbia and 15 cities – to its docket and will decide by the end of June whether or not the question will be a part of the 2020 Census form sent to every household in the U.S. At the urging of the Trump administration, the court agreed to forgo its normal procedures and accept the case immediately, since an answer is needed by the end of June so the census forms can be printed on time and the count proceed on schedule.

Ross says the question is necessary for several reasons, including allowing for enforcement of the Voting Rights Act, but some argue that its purpose might actually be voter suppression. Attorney and Author William B. Turner, whose latest law review article addressed constitutional law issues, had this to say:

I am not a judge. I have not read the complaint the plaintiffs filed to start the suit.  But I do agree that Trump has exhibited all manner of racist motives and actions and I think it’s hard to see anything but racism behind the desire to add a citizenship question to the census. It’s like the Republicans’ voter suppression tactics – voter ID looks race neutral, but its purpose is to suppress Democratic voters, the most visible of whom are African Americans.

The Justices plan to hear the case in late April, and must review the 227-page opinion handed down by Judge Furman. According to Turner, observers have noted that the judge seems to have written a very long, detailed opinion to try to maximize the odds of the Supreme Court upholding his decision.

But not everyone sees the issue the same way. According to Dr. Christopher W. Smithmyer, Strategic Resource Development Coordinator at Brāv Online Conflict Management, the disputed question, “Is this person a citizen of the United States?” is a bulwark inquiry that itself poses no legal problem, since it does not cost the government any more money to collect such data, would likely aid in Congressional apportionment and funding, and could potentially afford cities a greater glimpse into their demographics. He said of the question:

Many activists have a problem with the question because it will let the federal government know where illegal immigrants are, even though the question is just whether they are citizens or not. This is a “long argument,” but it is one that has stood the test of time. In all honesty, this question should be on the census – every nation has the right and duty to know the makeup of its population. Further, there are already demographic questions on the census, which basically begs the question, ‘If it is okay to ask if someone is a particular race, why is their citizenship off limits?’

But as far as how the Supreme Court will rule, all bets are off.  While the more liberal justices are likely to be sympathetic, those with conservative leanings might express more than slight opposition. According to Turner, “[Justice] Roberts will likely decide the issue, and he has publicly stated his concern about the appearance of partisan leanings by the court. This would be a great opportunity, like his decision on the Affordable Care Act, to look very nonpartisan. [But] I have no idea how it will turn out.”

Said Smithmyer: “I would assume that the Supreme Court will side with the census and allow the question as there is no pressing public interest why the question is ‘forbidden.’  Activists will protest, nationalists will celebrate and the world will basically be the same after the case as it was the day before.”


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