Census Citizenship Case Pulls Supreme Court Into Political Fray

(Bloomberg) -- The U.S. Supreme Court, which has shied away from high-profile cases in recent months, is on the brink of diving into a politically divisive clash over the 2020 census.

The justices could agree as early as Friday to consider letting President Donald Trump’s administration add a question about citizenship to the census, a step Democrats say would reduce participation, particularly by Hispanic households. The case would be Trump’s biggest Supreme Court showdown since the court upheld his travel ban last year.

Although the court has tried to sidestep controversy in Justice Brett Kavanaugh’s first term, the census case may be unavoidable. A judge barred the citizenship question, and the Census Bureau says it must start printing questionnaires by June. The only way for the Supreme Court to have the final word is to hear the administration’s appeal on an expedited basis.

The high court had been set to consider preliminary questions in the case this month but scrapped a planned argument when those issues were overtaken by events.

“Given the court’s interest in even the case’s preliminary issues, and the obvious national stakes, it seems to me that the justices will very likely step in and set a schedule for a quick ruling,” said Tom Goldstein, a Washington appellate lawyer and founder of scotusblog.com, which tracks the court.

Ideological Divide

The court has already hinted it might divide along ideological lines. In November three conservative justices -- Clarence Thomas, Samuel Alito and Neil Gorsuch -- said they would have halted a trial in the case. Their stance suggests the pivotal votes probably belong to the court’s other two Republican appointees, Kavanaugh and Chief Justice John Roberts.

The case would test the court’s willingness to defer to an administration that, according to U.S. District Judge Jesse Furman in New York, hid its real reasons for adding the citizenship question. Furman said Commerce Secretary Wilbur Ross acted in an “arbitrary and capricious” manner and violated a federal administrative law in a “veritable smorgasbord” of ways.

“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,” the judge wrote.

The administration contends in its appeal that courts lack any power to review Commerce Department decisions about what questions to include in the census.

“The census has from its inception been used to collect additional useful demographic information -- including, for many decades, about citizenship,” U.S. Solicitor General Noel Francisco argued. “It was not arbitrary and capricious for the secretary to reinstate a longstanding and unremarkable citizenship question to the decennial census.”

Advocacy organizations and a New York-led group of states, cities and counties are suing. A census undercount in areas with large numbers of non-citizens could shift congressional districts and federal funds away from those communities.

The U.S. Constitution requires a decennial census -- or an “actual Enumeration” -- but doesn’t provide any guidance about what information should be collected. Census-takers started asking about citizenship in 1820 but haven’t posed the question to every household since 1950.

Explanation Doubted

Ross wrote in a formal memo last March that he was reinstating the citizenship question at the behest of the Justice Department, which said the information would help with enforcement of the Voting Rights Act. Ross said there wasn’t sufficient proof that the question would significantly depress response rates.

“I find that the need for accurate citizenship data and the limited burden that the reinstatement of the citizenship question would impose outweigh fears about a potentially lower response rate,” Ross wrote.

Furman said the Voting Rights Act explanation was a pretext. He pointed to indications that Ross made his decision long before receiving the Justice Department request. The judge also said the evidence before Ross established that inclusion of the question would result in less accurate citizenship data.

“The administrative record is rife with both quantitative and qualitative evidence, from the Census Bureau itself, demonstrating that the addition of a citizenship question to the census questionnaire would indeed materially reduce response rates among immigrant and Hispanic households,” Furman wrote.

Francisco said that Ross “made a policy judgment to balance competing priorities in a particular manner.” The challengers’ disagreement “is not a license to substitute their judgment for that of the agency,” Francisco wrote.

The administration is asking the high court to directly review Furman’s ruling, bypassing the appeals court level. Although that’s an unusual step, the groups challenging the question are offering only lukewarm opposition. New York and the advocacy groups say that, if the court wants to get involved, it should do so this term.

“This case is undoubtedly of national importance, and should be resolved expeditiously,” organizations represented by the American Civil Liberties Union said.

The case is U.S. Department of Commerce v. State of New York, 18-966.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story: Joe Sobczyk at jsobczyk@bloomberg.net, Laurie Asséo, John Harney

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