People demonstrate outside the U.S. Supreme Court on the day of arguments in the census case “United States Department of Commerce v. New York.” Credit: Diego M. Radzinschi / NLJ

The Trump administration's push to add a citizenship question on the 2020 census hit a roadblock Thursday, when a divided U.S. Supreme Court partially upheld a ruling in favor of challengers who argue the move will cause a substantial undercount of Hispanics and other minorities and benefit Republicans in election districts across the country.

Writing for the court, Chief Justice John Roberts Jr. said the reason given by U.S. Commerce Secretary Wilbur Ross for adding the citizenship question—to enforce the Voting Rights Act—  “seems contrived” and the evidence in the trial record “tells a story that doesn't match Ross's decision.”

Roberts said: “Reasoned decisionmaking under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction.” He added at another point in the ruling: “We share the district court's conviction that the decision to reinstate a citizenship question cannot be adequately explained in terms of DOJ's request for improved citizenship data to better enforce the [Voting Rights Act]. Several points, considered together, reveal a significant mismatch between the decision the secretary made and the rationale he provided.”

The ruling does not permit the government to immediately move forward with printing a census with a citizenship question, but the government does have an additional chance to argue its reasoning for including the question in the first place. The Trump administration contends it faces a June 30 deadline for printing the census questionnaire.

Justice Samuel Alito Jr. said the court was setting a dangerous precedent with the ruling, both in regard to the census itself and judicial review of executive agency actions.

“To put the point bluntly, the federal judiciary has no authority to stick its nose into the question whether it is good policy to include a citizenship question on the census or whether the reasons given by Secretary Ross for that decision were his only reasons or his real reasons,” Alito wrote. “Of course, we may determine whether the decision is constitutional. But under the considerations that typically guide this Court in the exercise of its power of judicial review of agency action, we have no authority to decide whether the Secretary's decision was rendered in compliance with the Administrative Procedure Act (APA).”

Justice Clarence Thomas said the court was not able to find any problem with Ross' reasoning in allowing the census question, and the majority was instead imputing that he must not be telling the truth.

U.S. Supreme Court Justice Clarence Thomas. Credit: Diego M. Radzinschi / NLJ

“It is not difficult for political opponents of executive actions to generate controversy with accusations of pretext, deceit, and illicit motives,” Thomas wrote. “Significant policy decisions are regularly criticized as products of partisan influence, interest group pressure, corruption, and animus. Crediting these accusations on evidence as thin as the evidence here could lead judicial review of administrative proceedings to devolve into an endless morass of discovery and policy disputes not contemplated by the Administrative Procedure Act (APA).”

Thursday's ruling, on the last day of the Supreme Court term, came as a new challenge is set to unfold in Maryland's federal trial court, where a judge soon will hear evidence that purports to show discriminatory motivations underpin the Trump administration's move to add a citizenship question. The legal claims in the Maryland case were not addressed in the court's opinion on Thursday.

The ruling in the census case came the same day the Supreme Court, divided, refused to confront the lawfulness of election maps that are crafted by political motivations to benefit either Democrats or Republicans. The court said the political questions raised by the dispute extend beyond the reach of the federal judiciary to resolve. “Of all the times to abandon the court's duty to declare the law, this was not the one,” Justice Elena Kagan said in the closing lines of her dissent.

In the census litigation, judges in New York, Maryland and California had ruled against the Trump administration in census cases, and the justices in April heard arguments that arrived from the U.S. Court of Appeals for the Second Circuit. The Supreme Court appeared divided along ideological lines during arguments April 23 in the New York case.

The challengers in the cases had argued the Trump administration pushed to include a citizenship question to disadvantage Democrats and Hispanics and immigrant communities. In the Maryland case, which includes a team from Covington & Burling representing the plaintiffs, the presiding judge was urged on Wednesday to issue a temporary order blocking the Trump administration from adding the question to the survey.

At oral argument, some justices on the court's liberal wing said they could not find in the trial record any reasons for the Commerce secretary's deviation from the recommendation of the Census Bureau that a citizenship question should not be added to the census. But some of the conservative justices noted that a number of other countries do include that question on their census as did the United States before 1950.

The case at the high court stems from Commerce Secretary Wilbur Ross' announcement, in a March 2018 memo, that the Census Bureau would add a citizenship question to the 2020 short-form census questionnaire. He claimed the U.S. Justice Department asked for the question in order to help enforce the Voting Rights Act, an argument that the plaintiffs contend was pretextual and masked the true motivation of trying to suppress Hispanics and other minorities. The Supreme Court earlier had prevented the plaintiffs from deposing Ross.

New York, other states and cities, civil rights groups and nonprofit organizations filed lawsuits to block Ross' action. They argued that a citizenship question would result in an undercount—by some experts an estimated 6.5 million people—especially among Hispanic, immigrant and minority communities, some of whom fear deportation of family members and friends.

Career Commerce officials also have said the decision to add a question would cause an undercount.

An undercount, the plaintiffs warned, would result in a loss of billions of dollars of federal funds and affect reapportionment of congressional seats. Ross' move, they added, violated the Constitution's enumeration clause and the Census Act, and was arbitrary and capricious under the Administrative Procedure Act.

U.S. District Judge Jesse Furman in Manhattan ruled in January that Ross had committed a “veritable smorgasbord” of APA violations and had “alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him.”

From 1820 to 1950, every decennial census, except one, contained a citizenship question. Since 1950, the short-form questionnaire, which will be the only form used in 2020 to take an “actual Enumeration,” has not included a question about citizenship or birthplace.

The Census Bureau has used the annual American Community Survey, which goes to about 2% of households, to collect demographic information about the population. A long-form census questionnaire, used from 1960 to 2000 and distributed with the short form, has, like the ACS survey, collected demographic information, including a citizenship question.

Nearly 50 amicus briefs have been filed by a wide range of states, local governments, businesses, historians, statistical organizations and others, with most supporting opponents of the citizenship question.

The Maryland litigation could soon generate a new preliminary injunction, further blocking the Trump administration from moving forward with printing the census with the citizenship question. Plaintiffs there have presented evidence that purports to undermine the government's argument that there was no discriminatory motivations behind adding the citizenship question.

The U.S. District Court judge in the Maryland case is expected to order an expedited evidentiary hearing “and provide a speedy ruling” on new evidence that “potentially connects the dots between a discriminatory purpose—diluting Hispanics' political power—and Secretary Ross's decision.”

U.S. District Judge George Hazel had earlier turned down the plaintiffs' claim that the addition of the citizenship question violated the U.S. Constitution's equal-protection clause. A divided Fourth Circuit panel on Tuesday sent the Maryland challenge back to Hazel for the evidentiary hearing.

 

The court's ruling is posted below:

 

 

Read more:

US Appeals Court Says Census Plaintiffs Can Explore New Evidence 

Census Plaintiffs Alert Supreme Court to 11th Hour New Evidence 

Justices, Appearing Divided, Weigh Legality of Adding Census Citizenship Question

 

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Nate Robson and Mike Scarcella contributed reporting from Washington.