A deeply divided Supreme Court last week halted, for now, efforts by the Trump Administration to include a citizenship question in the 2020 Census. A majority of justices did not find that a citizenship question is unconstitutional per se, but rather that the Department of Commerce had offered up a “contrived” reason for wanting to include the question, and in doing so had violated the Administrative Procedure Act.

The key passage in the controlling, 5-4 opinion, authored by Chief Justice John Roberts and joined by the Court’s more liberal justices, noted that governmental agencies must offer “genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public.”

“Accepting contrived reasons would defeat the purpose of the enterprise,” the opinion continued. “If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”

The decennial count of the nation’s population determines the size of each state’s congressional delegation, the number of votes it receives in the electoral college, and how the federal government allocates hundreds of billions of dollars. In addition, state and local officials use the data to redraw political districts ranging from city council to school board to state legislative and congressional seats.

Census officials have estimated that including a citizenship question would result in an undercount of more than 8 million people. Areas most affected would be states and urban areas with large Hispanic and immigrant populations. In particular, households with young children, especially children of color, would be adversely affected, as would immigrant families, those who identify as Hispanic/Latino, and low-income households.

The central question that now confronts the Trump Administration, which still wants to include a citizenship question, as well as advocates for an accurate 2020 Census, is whether the Trump Administration can move quickly enough to come up with a new rationale and gain judicial clearance for that rationale.

The Trump Administration had claimed that the deadline for finalizing the Census questionnaire was June 30; however, some government officials have said the “real” deadline is in the fall. Even if the deadline is in the fall, there are any number of hoops the Administration must jump through in order to prevail. In addition, litigation against the citizenship question continues in U.S. District Courts in Maryland and New York over allegations that the Trump Administration’s motivation was racially discriminatory.

The judges in Maryland and New York have said they would consider new allegations regarding the claim that Commerce Secretary Wilbur Ross’s actions violated equal protection guarantees and were part of a conspiracy to drive down the count of minorities.

The allegations arose after files of a deceased Republican operative, Thomas Hofeller, were turned over to plaintiffs by his estranged daughter. The files showed that Hofeller, who had been in touch with Census officials early in the Trump Administration, wrote a memo that said adding the citizenship question might help Republicans and white voters in subsequent redistricting decisions based on census data.

In a statement released after the Supreme Court’s ruling, CHN Executive Director Deborah Weinstein said Secretary Ross should give up on his efforts to include the citizenship question and instead focus on carrying out the Census Bureau’s plan to conduct the Census. “The Census Bureau should now move forward to ensure an accurate count with no more interference from the Secretary,” she said, adding that Ross “should follow the advice of the Census Bureau’s expert staff and drop his effort to add a citizenship question to the 2020 Census. The clock is ticking. It is time to focus on operational preparations and securing IT systems prior to the Census commencing.”

For more information, see CHN’s 2020 Census resource page.

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