The Supreme Court’s Chance to Save the Census

(Bloomberg Opinion) -- The U.S. Supreme Court is poised to make an important decision: Whether to allow the Commerce Department to undermine the 2020 Census by adding a question that doesn’t need to be asked. With luck, some startling new evidence on the Trump administration’s reasons for making this change will persuade the justices to stop it.

At issue is Commerce Secretary Wilbur Ross’s effort to include a question on citizenship in the decennial count of the country’s population. This is necessary, he says, to give the Justice Department the data it needs to ensure all Americans are properly represented in accordance with the Voting Rights Act.

As a matter of policy, the change makes no sense. First, it’s a last-minute revision, and census officials were already struggling to get ready. Second, it’s unnecessary: The annual American Community Survey has long provided Justice with better data to enforce the Voting Rights Act than the census would. Third, it could lead to an undercount of millions of Hispanics, who are already wary of participating thanks to Trump’s anti-immigrant policies. This, in turn, would skew a survey that decides how many representatives states send to Congress, informs the distribution of hundreds of billions of dollars in federal money, and forms the statistical foundation for crucial government reports.

To be sure, bad policy isn’t necessarily illegal, and the Supreme Court will be judging whether Ross was acting within his rights. For instance, was adding the citizenship question “arbitrary and capricious,” and hence in violation of the Administrative Procedure Act? Lower-court judges decided that it was, in large part because Ross’s stated motive didn’t stand up to scrutiny. As a New York judge put it in January: “A court cannot sustain agency action founded on a pretextual or sham justification.” But the court stopped short of saying what the administration’s true motive might be.

Now, thanks to a bizarre sequence of events, new evidence on this has emerged. Computer files of the deceased Republican redistricting expert Thomas Hofeller show that he played a crucial role in getting the citizenship question added, after research he conducted showed it would help Republicans to gerrymander congressional districts to better effect.

The Supreme Court will decide what the law requires. But there can’t be much doubt about where the public interest in all this lies. If a bad policy, shown to be dishonestly advanced, is stopped in its tracks, that will be good news.

Editorials are written by the Bloomberg Opinion editorial board.

©2019 Bloomberg L.P.

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