The US Supreme Court ruled on Thursday that President Donald Trump‘s administration did not give an adequate explanation for its plan to add a citizenship question to the 2020 census, delivering a victory to New York state and others challenging the proposal.
The justices partly upheld a federal judge’s decision barring the question in a win for a group of states and immigrant rights organisations that challenged the plan. The mixed ruling does not definitively decide whether the question could be added at some point.
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The Republican president’s administration had appealed to the Supreme Court after lower courts blocked the inclusion of the census question.
A group of states including New York and immigrant rights organisations sued to prevent the citizenship question from being included in the decennial population count. Opponents have said the question would instil fear in immigrant households that the information would be shared with law enforcement, deterring them from taking part.
The census, required by the US Constitution, is used to allot seats in the US House of Representatives and distribute some $800bn in federal funds. Businesses also rely on census data to make critical strategic decisions, including where to invest capital.
The intent of the citizenship question, opponents said, was to manufacture a deliberate undercount of areas with high immigrant and Latino populations, costing Democratic-leaning regions seats in the House, benefitting Republicans and non-Hispanic whites.
The administration argued that adding a question requiring people taking part in the census to declare whether they are a citizen was needed to better enforce a voting rights law, a rationale that opponents called a pretext for a political motive.
Manhattan-based US District Judge Jesse Furman ruled on January 15 that the Commerce Department’s decision to add the question violated a federal law called the Administrative Procedure Act. Federal judges in Maryland and California also have issued rulings to block the question’s inclusion, saying it would violate the constitution’s mandate to enumerate the population every 10 years.
Furman said the evidence showed that Commerce Secretary Wilbur Ross concealed his true motives for adding the question and that he and his aides had convinced the Justice Department to request a citizenship question.
Trump, responding Thursday’s ruling, said he was exploring a delay of the 2020 census for an unspecified amount of time so the Supreme Court can be “given additional information from which it can make a final and decisive decision”.
In its decision, the Supreme Court sent the issue back to the Commerce Department, which is in charge of the census, to decide whether to provide a different rationale for the question.
‘Millions would not respond’
Citizenship has not been asked of all households since the 1950 census, featuring since then only on questionnaires sent to a smaller subset of the population.
The Census Bureau’s own experts estimated that households corresponding to 6.5 million people would not respond to the census if the citizenship question were asked.
While only US citizens can vote, non-citizens comprise an estimated seven percent of the population.
Evidence surfaced in May that the challengers said showed that the administration’s plan to add a citizenship question was intended to discriminate against racial minorities.
Documents created by Republican strategist Thomas Hofeller, who died last year, showed that he was instrumental behind the scenes in instigating the addition of the citizenship question. He was an expert in drawing electoral district boundaries that maximized Republican chances of winning congressional elections.
Hofeller concluded in a 2015 study that asking census respondents whether they were American citizens “would clearly be a disadvantage to the Democrats” and “advantageous to Republicans and Non-Hispanic Whites” in redrawing electoral districts based on census data.
Hofeller suggested the voting rights rationale in the newly disclosed documents.
The Trump administration called the newly surfaced evidence “conspiracy theory”.
A federal judge in Maryland is reviewing the Hofeller evidence.
Gerrymandering can continue
In a separate decision on Thursday, the Supreme Court ruled that federal courts have no role to play in the dispute over the practice known as partisan gerrymandering.
The decision could embolden political line-drawing for partisan gain when state politicians undertake the next round of redistricting following the 2020 census.
Voters and elected officials should be the arbiters of what is a political dispute, Chief Justice John Roberts said in his opinion for the court.
The court rejected challenges to Republican-drawn congressional districts in North Carolina and a Democratic district in Maryland.
The decision was a major blow to critics of the partisan manipulation of electoral maps that can result when one party controls redistricting.
The districting plans “are highly partisan by any measure”, Roberts said. But he said courts were the wrong place to settle these disputes.
In dissent for the four liberals, Justice Elena Kagan wrote, “For the first time ever, this court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.” Kagan, in mournful tones, read a summary of her dissent in court to emphasise her disagreement.
Federal courts in five states concluded that redistricting plans put in place under one party’s control could go too far and that there were ways to identify and manage excessively partisan districts. Those courts included 15 federal judges appointed by Republican and Democratic presidents reaching back to Jimmy Carter.
But the five Republican-appointed justices decided otherwise.
The decision effectively reverses the outcome of rulings in Maryland, Michigan, North Carolina and Ohio, where courts had ordered new maps drawn and ends proceedings in Wisconsin, where a retrial was supposed to take place this summer after the Supreme Court last year threw out a decision on procedural grounds.
Proponents of limiting partisan gerrymandering still have several routes open to them, including challenges in state courts. There is a pending North Carolina lawsuit.
The North Carolina case has its roots in court decisions striking down some of the state’s congressional districts because they were illegal racial gerrymanders.
When politicians drew new maps as a result, Republicans who controlled the legislature sought to perpetuate the 10-3 GOP advantage in the congressional delegation. Democratic voters sued over the new districts, complaining that they were driven by partisan concerns.
The voters won a lower court ruling, as did Democrats in Wisconsin who challenged state assembly districts. But when the Supreme Court threw out the Wisconsin ruling on procedural grounds that did not address the partisan gerrymandering claims, the justices also ordered a new look at the North Carolina case. A three-judge court largely reinstated its ruling.
In Maryland, Democrats controlled redistricting and sought to flip one district that had been represented by a Republican for 20 years. Their plan succeeded, and a lower court concluded that the district violated the constitution.
The high court agreed to hear both cases.