Supreme Court to decide if 2020 census can ask about citizenship

February 15, 2019

The Supreme Court announced Friday that it will speed action on a case involving the Trump administration’s attempt to insert a citizenship question into the 2020 census, after a lower court judge erased the question last month.

Oral argument has been set for April, meaning the court should be able to issue a final ruling before its current term ends in June. That would give the Census Bureau enough time to adjust the 2020 questionnaire based on the outcome.

Legal trash-talking by both sides was well underway Friday, with immigrant-rights groups vowing to deal President Trump another setback.

“We’re confident we’ll beat Donald Trump in court again,” said Steven Choi, executive director of the New York Immigration Coalition, which won the first round in the district court.

The Justice Department, meanwhile, pronounced itself “pleased” that the court is taking the case.

Judge Jesse Furman ruled last month in favor of the NYIC, finding that the Commerce Department cut too many corners in adding the citizenship question to the 2020 count.

Judge Furman, an Obama appointee to the bench, rejected immigrant-rights groups’ claims that the citizenship question was motivated by racism or other nefarious motives, saying that was never proved.

But he said Commerce Secretary Wilbur Ross did ignore the advice of experts and discarded key checks designed to make sure census questions don’t frighten people into refusing to take part.

“Secretary Ross violated the public trust,” Judge Furman wrote in his 277-page scolding.

Normally an appeal of his ruling would go to the 2nd U.S. Circuit Court of Appeals, then any ruling there could be appealed to the Supreme Court. But the Justice Department asked the Supreme Court to take the case directly, because of the time crunch before the 2020 census.

In his decision, Judge Furman said that there’s nothing inherently wrong with asking about citizenship and indeed such a question used to be standard on the full census count up through 1950, and on the census “long form” after that.

Even now, the question is still asked on the American Community Survey, the rolling census that takes place every year for a small percentage of Americans.

But the judge said in adding the question back into the full census Mr. Ross ignored key checks built into the process to vet questions. He didn’t require “pretesting” to see how the public might react, nor did he ask for a waiver from the pretesting requirements.

Instead, Mr. Ross said the question had been “well tested” before, including on the more narrow annual community survey, so there was no need to go through the hurdles again for the 2020 count.

Judge Furman rejected that.

He also questioned the story Mr. Ross and his team told about why the question was added, and its subsequent defense of the decision.

Mr. Ross had originally told the court that he added the question at the behest of the Justice Department, which said it needed exact information to better enforce voting rights laws. The smaller sample size from the annual American Community Survey wasn’t cutting it.

Mr. Ross later admitted he had been thinking of adding the question even before the Justice Department’s late 2017 request, and documents obtained during legal discovery signaled there’d been interest from political aides at the White House.

Adding the question has been a chief goal of Mr. Trump, and his campaign has repeatedly sent out fundraising pleas pointing to inclusion of the question as a major Trump accomplishment.

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