Supreme Court Will Hear Fast-Track Arguments in Census Case

(Bloomberg) -- The Supreme Court agreed to hear arguments early next year on lawsuits challenging the addition of a question about citizenship to the 2020 census, acting with unusual speed in a politically charged case.

The justices will consider the Trump administration’s bid to limit the evidence that can be used in the challenge, which has been the subject of a trial in federal court in New York. The Supreme Court will hear arguments Feb. 19.

Advocacy organizations and a New York-led group of a dozen states, cities and counties are suing, saying the citizenship question discriminates against immigrants and will reduce accuracy by lessening participation. A census undercount in areas with large numbers of non-citizens could shift congressional districts and federal dollars away from those communities.

The Supreme Court two weeks ago said a trial in the case could go forward, and Friday’s order doesn’t directly prevent U.S. District Judge Jesse Furman from issuing a ruling. Furman finished hearing evidence this week. The Census Bureau has said it plans to start printing the once-a-decade questionnaire by May.

President Donald Trump’s administration says the case should be limited to the administrative record -- the materials that the Commerce Department says were used to make the decision to include the question.

The administration says Commerce Secretary Wilbur 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 rights of minorities at the polls.

Shifting Explanations

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

"The trial record closed earlier today and we are confident in the strength of our case," said Amy Spitalnick, spokeswoman for New York Attorney General Barbara Underwood. "The record clearly shows that the secretary’s decision to demand citizenship status on the 2020 census is illegal."

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.

The Justice Department said Bannon asked Ross if he would speak to Kansas Secretary of State Kris Kobach about including a citizenship question. Kobach is an outspoken critic of illegal immigration and served on Trump’s short-lived voter fraud commission. He lost his race for Kansas governor earlier this month.

The justices have already hinted they could divide along ideological grounds. In October the court blocked Ross’s deposition while letting other evidence-gathering efforts go forward, including the deposition of acting Assistant Attorney General John Gore. Justices Neil Gorsuch and Clarence Thomas said they would have blocked those parts of the case as well.

When the Supreme Court let the trial go forward on Nov. 2, Gorsuch, Thomas and Justice Samuel Alito dissented.

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 Department of Commerce, 18-557.

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