How the Supreme Court left the door open to reinstate Trump's citizenship question on the census

Daily Kos Staff

Thursday June 27, 2019 · 11:38 AM PDT

2019/06/27 · 11:38

US Supreme Court Chief Justice John Roberts speaks before presenting US Supreme Court Justice Ruth Bader Ginsburg the American Law Institute's Henry J. Friendly Medal in Washington, DC, on May 14, 2018. (Photo by JIM WATSON / AFP) (Photo credit should read JIM WATSON/AFP/Getty Images) — United States Chief Justice John Roberts

In a surprise decision on Thursday, the Supreme Court temporarily blocked the Trump administration from adding a question to the 2020 census asking U.S. residents about their citizenship status, but this ruling's reprieve is far from the end of the line. Not only did Donald Trump himself threaten to illegally delay the census if he doesn’t get his way, but the court itself also left open the possibility of allowing the question

Although the Census Bureau had planned to print millions of census forms by a June 30 deadline, plaintiffs argued that it could delay printing until October to give the courts time to resolve the case. Now the case will go back to the federal district court in New York that originally heard the matter. That should allow the judge to conduct an in-depth review of the new evidence and craft a ruling that addresses the Trump administration's racial and partisan animus.

However, it will also give the Trump administration, specifically Commerce Secretary Wilbur Ross, a chance to come up with a justification for adding the question that isn't pretextual, as his original claim that the bureau needed the information to enforce the Voting Rights Act so blatantly was. In their decision, Chief Justice John Roberts and his fellow Republican justices didn't foreclose the possibility that Ross could come up with a satisfactory answer.

If Ross flip-flops on his stated reasoning, though, House Democrats could hold him accountable for the sworn statement he previously gave Congress, in which he claimed VRA compliance was the reason behind including the question. Members of the Trump administration, however, have shown little fear of defying or even lying to Congress.

We can also expect another Republican flip-flop: The administration had told the courts that that June 30 deadline was inflexible, but following this ruling, the Census Bureau likely will not begin printing forms by the end of the month. Instead, Ross will now claim that the bureau can wait as long as necessary for the case to be resolved.

If Trump is ultimately successful, this question on citizenship would likely have a chilling effect, intimidating millions of people in immigrant communities into not participating in the census. That in turn would turbocharge a new wave of hyperpartisan Republican gerrymandering nationwide, since census data is the bedrock of redistricting.

And turbocharged gerrymandering in fact was the entire rationale behind this question: In a recent bombshell report, based on newly unearthed documents from a deceased GOP political consultant, Thomas Hofeller, Republicans admitted that rigging the census would eviscerate the political power of Democrats and voters of color.

The Constitution mandates that every person in the U.S. be counted in the decennial census, without regard to their legal status. A question on citizenship hasn't been included in the census since 1950, and even when it has appeared, it has never been asked of every single participant, as the Trump administration still intends for 2020. Furthermore, multiple lower courts had ruled that Secretary Ross' attempt to add the question violated both federal law and the Constitution.

Those courts uniformly dismissed Ross' claim that the Justice Department needed data on citizenship to enforce the Voting Rights Act as a bogus pretext that masked the Trump administration’s true motives. Hofeller’s document trove conclusively exposed the GOP’s actual intentions: allowing mapmakers to use citizenship statistics that would result in "a disadvantage to the Democrats" and be "advantageous to Republicans and non-Hispanic whites."

Given the blatant partisan and racial bigotry behind the GOP's plans, a ruling to permit this citizenship question would be a major blow to democracy, one on par with the harms of both 2000's Bush v. Gore decision and the 2013 ruling that crippled the Voting Rights Act. The current Supreme Court majority has demonstrated that it is committed to an agenda of permanently entrenching white Republicans in power without regard for the rule of law. The only question remaining is how willing John Roberts is to risk being seen as the nakedly partisan operative that he is.

How the Supreme Court left the door open to reinstate Trump's citizenship question on the census

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