Citizenship Question Goes to the Supreme Court

The Supreme Court said in a brief order on Friday that it will fast-track a case centered on whether the U.S. Census can ask Americans if they are citizens.

The Census, which the U.S. Commerce Department conducts every 10 years, is the primary driver of allocating seats in the House of Representatives and the distribution of hundreds of billions of federal taxpayer dollars.

Head-counts also impact how many Electoral College votes each of the 50 states receives in presidential elections.

The Supreme Court justices will hear an appeal in late April and decide whether to overturn a lower federal court ruling that barred the Trump administration from asking about citizenship on Census forms.

The case would ordinarily go through an appellate court before reaching the Supreme Court. But as 2020 looms, both sides agreed that it should be resolved quickly so census forms can be printed.

The justices are expected to announce a decision by the end of June.

Manhattan-based U.S. District Judge Jesse Furman ruled on Jan. 15 that Commerce Secretary Wilbur Ross made an ‘arbitrary and capricious’ decision to put a citizenship question on the Census for the first time since 1950.

Furman ruled that Ross concealed his true motives, violating federal law.

‘Secretary Ross and his aides tried to avoid disclosure of, if not conceal, the real timing and the real reasons for the decision to add the citizenship question,’ he wrote.

‘He 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,’ Furman added.

The Justice Department said last month that Ross is ‘the only person with legal authority over the census’ and his decision was ‘reasonable.’

‘Not only has the government asked a citizenship question in the census for most of the last 200 years, 41 million households have already answered it on the American Community Survey since 2005,’ a DOJ spokeswoman said following Furman’s ruling.

‘Our government is legally entitled to include a citizenship question on the census and people in the United States have a legal obligation to answer. Reinstating the citizenship question ultimately protects the right to vote and helps ensure free and fair elections for all Americans.’

U.S. Solicitor General Noel Francisco petitioned the Supreme Court for ‘certiorari before judgment,’ the technical language for bypassing lower appeals courts.

No such request had been granted since August 2004.

According to federal rules, ‘cert before judgment’ is only appropriate ‘upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.’

Democratic officials in California and numerous cities there have sued, claiming that asking people whether they are U.S. citizens is politically motivated and would discourage immigrants and Latinos from participating in the population count.

Households that skip the citizenship question but otherwise fill out a substantial portion of the questionnaire will still be counted, Justice Department attorneys said in court documents.

Ross director the Census Bureau in March 2018 to restore the question, saying he was fulfilling a request from the Justice Department to collect better citizenship data to enforce the Voting Rights Act.

Furman ruled, however, that there was ‘no indication in the record that the Department of Justice and civil rights groups have ever, in the 53 years since the Voting Rights Act was enacted, suggested that citizenship data collected as part of the decennial census would be helpful, let alone necessary, to litigate such claims.’

The American Civil Liberties Union said last month that Furman’s decision was ‘is a forceful rebuke of the Trump administration’s attempt to weaponize the census for an attack on immigrant communities.’