In the wake of last week’s Supreme Court opinion upholding lower court decisions that blocked the Trump Administration from placing a question regarding citizenship on the 2020 Census, it was unclear exactly what the next step would be. As it was, the Justices had left the issue open in that they had remanded the case back to the lower courts to give the opportunity to come up with a better explanation for why it wanted to include the question. Additionally, the President, still traveling overseas at the time, condemned the decision and suggested that he would ask his advisers about the possibility of delaying the census until the Federal Government could come up with an answer acceptable to the courts. That position, though, appeared to conflict directly with the representation that the Justice Department’s lawyers had made to both the Justices and to lower courts dealing with other cases involving the Census that there was a “drop dead” date of June 30th on which the Government would need to begin the process of printing the Census and with the explicit language of the Constitution regarding the timing of the Census, which effectively requires that the count be done by the end of 2020.
Late yesterday, though, the Administration effectively brought the controversy to an end by announcing that the Census form would be printed without the citizenship question:
WASHINGTON — The Trump administration, in a dramatic about-face, abandoned its quest on Tuesday to add a citizenship question to the 2020 census, a week after being blocked by the Supreme Court.
Faced with mounting deadlines and a protracted legal fight, officials ordered the Census Bureau to start printing forms for next year’s head count without the question.
The decision was a victory for critics who said the question was part of an administration effort to skew the census results in favor of Republicans. It was also a remarkable retreat for an administration that typically digs into such fights.
Just last week after the Supreme Court’s decision, President Trump said he was asking his lawyers to delay the census, “no matter how long,” in order to fight for the question in court. He reiterated his unwillingness to give up in a Twitter message posted late Tuesday, saying he had asked administration officials “to do whatever is necessary” to get a citizenship question on the census form.
Word of the administration’s decision to stop fighting came in a one-sentence email from the Justice Department to lawyers for plaintiffs in a New York lawsuit that sought to block the question’s inclusion in the head count.
The email offered no explanation, but the administration was confronting weeks or months of additional legal challenges to the question. Meanwhile, the Census Bureau had said it needed to begin printing questionnaires by July 1 to meet the April 2020 deadline for conducting the census.
The administration’s decision appeared to end a yearlong battle over the country’s all-important decennial head count. Census results are used to divvy up seats in the House of Representatives and to draw political maps at all levels of government. They are also used to allot federal funding for key social services.
The addition of a citizenship question to the census could have had profound implications for American politics. Officials at the Census Bureau itself have said that including the question would lead to an undercount of noncitizens and minority residents. As a result, areas with more immigrants, which tend to vote Democratic, could have lost both representation and federal funding.
The Supreme Court last week rejected the administration’s stated reason for adding a question on citizenship to the census, and while the decision was not a conclusive ruling, the justices placed a daunting hurdle before the government.
Commerce Secretary Wilbur Ross said in a statement on Tuesday night that he respected the Supreme Court, but strongly disagreed with its ruling.
“The Census Bureau has started the process of printing the decennial questionnaires without the question,” he said. “My focus, and that of the Bureau and the entire Department is to conduct a complete and accurate census.”
Dale Ho, director of the Voting Rights Project at the American Civil Liberties Union, which was among the plaintiffs trying to block the question, praised the outcome, saying the Supreme Court left the administration with “no choice but to proceed with printing the 2020 census forms without a citizenship question.”
As drafted by the administration, the census would have asked: “Is this person a citizen of the United States?” Options were to include: “Yes, born in the United States”; “Yes, born in Puerto Rico, Guam, the U.S. Virgin Islands, or Northern Marianas”; “Yes, born abroad of U.S. citizen parent or parents”; “Yes, U.S. citizen by naturalization”; or “No, not a U.S. citizen.”
For the last year, there has been a bitter legal battle over whether the Commerce Department broke the law when it decided in March 2018 to tack a citizenship question onto the census, long after other aspects of the questionnaire had been finalized.
The department, which oversees the Census Bureau, had argued that the Justice Department needed a more accurate count of citizens to enforce the 1965 Voting Rights Act, but three lower courts ruled that that was an obvious pretext for some other unstated goal.
The department’s explanation was further undermined last month after plaintiffs uncovered computer files from a deceased Republican political strategist, Thomas B. Hofeller, who had first urged the incoming Trump administration in 2016 to consider adding the question to the next census.
The files included a study in which Mr. Hofeller concluded that a citizenship question was central to a strategy to increase Republican political power by excluding noncitizens and persons under voting age from the census figures used for drawing new political boundaries in 2021.
The disclosure led to the reopening of one of the lawsuits opposing the question, and plaintiffs were scheduled to begin new efforts this month to prove that the question was an effort to discriminate against Hispanics for political gain.
Not surprisingly, the decision did not sit well with the President, who took to Twitter both last week and last night to attack the SUpreme Court:
Notwithstanding the President’s laments, the Administration clearly had no choice but to concede the matter given the facts in the case, the law, and the limited amount of time available to resolve the matter before the printing process needed to begin. Even if the Administration attempted to return to the lower courts with a different justification for including the question, that would have conflicted with the evidence already on the record showing how the Commerce Department generally and Commerce Secretary Wilbur Ross essentially misrepresented the reasoning behind including the question and the fact that the lower courts did not find those justifications to be credible or sufficient. Additionally, reopening the record in the case below would have allowed lawyers for the parties challenging the inclusion of the question to introduce evidence that had been uncovered after the case was already before the Supreme Court but which had not been available at trial.
Specifically, this newly discovered evidence consists of a study conducted by a Republican political consultant who has since died that argued that including the citizenship question would likely discourage Latinos from filling out the census form, thus decreasing the count in states with high Latino populations. The study also argued that this stood to benefit Republicans because it would impact reapportionment of Congressional seats after the Census. All of this was apparently discovered just recently by the consultants family as they went through his papers and records. If the Federal Government had gone back to a lower court, it’s inevitable that this evidence, which undercuts any argument that there was a valid non-partisan reason for including the citizenship question, would have become part of the record, making the odds of a Federal Government win even slimmer.
Notwithstanding the President’s claim in his Tweets last night about continuing to search for a way to get the question back in the Census, it’s clear that this means that this debate is effectively over for the next ten years at least. With the printing process started and other Census preparations well underway, no court is going to consider intervening to reverse the previous rulings. One could also argue that the cases that are still open at this point are effectively mooted by the Administration’s decision to go forward without the citizenship question. The President will no doubt use this to rant to his supporters, but the odds that there will be any change in the status quo are essentially zero at this point.
