Census Suit Drives Partisan Wedge at Supreme Court

Immigration advocates gather in Foley Square on July 3, 2018, to celebrate what New York Attorney General Barbara Underwood called a “major win” in a constitutional challenge to the addition of a citizenship question to the 2020 census. (Adam Klasfeld/CNS)

WASHINGTON (CN) – Suggesting that the Trump administration will get its way, the Supreme Court’s more conservative justices seemed undisturbed Tuesday by evidence that it would distort census counts in 2020 to ask respondents about their citizenship.

Across 90 minutes of arguments this morning, the justices in the conservative majority focused their concern on whether blocking the citizenship question this year would make it difficult for the government to ever change the census out of fear that new questions could lead to lower response rates and a worse count. 

“But do you think that any decrease in the actual count, if you add any question beyond counting people and that decreases the actual count to any degree, then that additional question is improper?” Justice Samuel Alito asked.

The citizenship question would appear on the so-called short form, a questionnaire sent out to every household in the United States and which every person in the country must answer. Critics say it would chill responses from immigrant households, causing an undercount in cities that tend to vote Democrat. 

Earlier this year, after a trial in New York, a federal judge found that Commerce Secretary Wilbur Ross invented a pretext in 2018 when he announced he was adding the citizenship question at the request of the Justice Department. 

Indeed, the evidence showed that Ross had been considering the move as far back as 2017. While a federal judge in Maryland struck down the question on similar grounds as well, a California judge issued a more sweeping opinion, finding Ross’ decision violated the enumeration clause of the Constitution as well as the Administrative Procedure Act, a law that outlines steps federal agencies must make when reaching their decisions.

Solicitor General Noel Francisco told the Supreme Court on Tuesday, however, that any new census question comes with the potential tradeoff of getting more information but fewer responses.

“That underscores why we don’t think this is really subject to judicial review, because really what you’re saying is that courts would have to review every question on the long form to determine if the informational value of the question outweighed the impact on census accuracy because, at the end of the day, if you add any particular question onto the census, you’re always trading off information and accuracy,” Francisco said.

The court’s liberal contingent appeared unswayed by this. “But the question is, why is asking a question better when you know that asking a question is going to result in lots of non-responses and in lots of false reporting?” Justice Elena Kagan said Tuesday. “And so you can’t just go back to, ‘I’d rather ask a question.’ You have to say why you’d rather ask a question and what benefits it has to ask a question.”

Justice Stephen Breyer seemed surprised by the claim that courts should not review decisions about what to put on the census.

“Suppose he says, ‘I’m going to have the whole survey in French,'” Breyer said. “In other words, we have no role to play no matter how extreme?”. 

Francisco also said the government has a perfectly good reason for wanting to collect citizenship data from the census, rather than from the other administrative records that it collects, and that the data experts at the Census Bureau were unable to definitively present a better alternative.

Francisco likewise urged the court not to discount the fact that the question had been asked before, in some form or another before, and that blocking it now would be unusual.

Today’s arguments against the question were split between three attorneys, all of whom took slightly different angles on the administration’s claims.

New York Solicitor General Barbara Underwood argued Ross was wrong to ignore the advice of his top scientists and that the administration could easily collect better information about citizenship without risking the accuracy of the census.

Dale Ho, an attorney with the ACLU who argued for a group of nonprofits, said even if the court were to accept Ross’ claim that he added the question to help the Justice Department enforce the Voting Rights Act, the citizenship question is a poor way to aid that effort. Ho said the Commerce Department cannot even share the most granular details it would get about citizenship and that the data it could share would be significantly less accurate than if it took the same information from other sources.

“The evidence shows that non-citizens respond to the question inaccurately one-third of the time,” Ho said. “So, if the question is used, the data that’s used for imputation will be contaminated by those incorrect responses, making the output of the imputation process less accurate, making the data less accurate and, again, harming the secretary’s stated purpose of improving the accuracy of citizenship information.”

Finally, Douglas Letter, who argued for the House of Representatives, said that with the exception of questions that cause very minor drops in accuracy, the Commerce Department must make the accuracy of the census a priority over any other interests it might have.  

“If there is something that undermines the accuracy of that count, even if it’s important for other reasons, that is both a statutory violation and, therefore, a violation of the Administrative Procedure Act and a constitutional violation,” Letter said.

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