Supreme Court Lets Trial Start on Census Citizenship Question

(Bloomberg) -- Rebuffing the Trump administration, the U.S. Supreme Court cleared the way for a trial to start Monday on lawsuits challenging the addition of a question about citizenship to the 2020 census.

The court, without comment Friday, refused to expand an earlier order that shielded Commerce Secretary Wilbur Ross from being questioned under oath in advance of the trial.

Three conservative justices -- Clarence Thomas, Samuel Alito and Neil Gorsuch -- said they would have stopped the trial. The order didn’t explicitly say how the other justices voted, including the newly confirmed Brett Kavanaugh.

Advocacy organizations and a New York-led group of dozen states, cities and counties are suing, saying the citizenship question discriminates against immigrants and will reduce the accuracy of the census by lessening participation.

The Trump administration has been seeking, mostly unsuccessfully, to restrict the evidence the challengers can use. President Donald Trump’s team says the case should be limited to the administrative record -- the materials the Commerce Department says were used to make the decision to include the question.

The administration says Ross acted in response to a request by the Justice Department, which had said the question would help with enforcement of the Voting Rights Act, the 1965 law that protects the right of minorities at the polls.

The challengers say the administration’s real motives were more sinister. They point to the shifting and inaccurate explanations Ross has given.

Ross testified to Congress in March that he hadn’t discussed the citizenship question with anyone at the White House. But the Justice Department said in a recent court filing that he now recalls speaking about the issue in 2017 with Stephen Bannon, a staunch advocate of limiting immigration who was Trump’s chief White House strategist at the time.

U.S. District Judge Jesse Furman ruled last week that the trial could go forward and that the challengers could present evidence beyond the administrative record to try to show the real reason for the move. Furman said he’ll decide later what to do with that evidence.

A census undercount in areas with large numbers of non-citizens could shift congressional districts and federal dollars away from those communities.

The Trump administration says census-takers have asked about citizenship as far back as 1820. The last time every household was asked about citizenship on the decennial census was in 1950. From 1960 to 2000, a sample of the population was asked about citizenship. Since 2005, the Census Bureau has asked about citizenship in a separate annual survey sent to some people. The 2010 census didn’t include a citizenship question.

The case is In Re United States Department of Commerce, 18A455.

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