Supreme Court to hear census citizenship case this term

The Supreme Court on Friday agreed to take up a case about the Trump administration's plan to add a citizenship question to the 2020 census.

The justices decided to skip over a regional appeals court and review a district court ruling that bars the Trump administration from adding the controversial question to the decennial population count.

They granted the government’s request to hear arguments this term ahead of a ruling from the 2nd Circuit Court of Appeals. Arguments will be heard in the second week in April.

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Solicitor General Noel Francisco asked the Supreme Court last month to look at whether Judge Jesse Furman, an Obama appointee on the U.S. District Court for the Southern District of New York, erred in prohibiting Commerce Secretary Wilbur RossWilbur Louis RossHillicon Valley: Lawmakers seek 'time out' on facial recognition tech | DHS asks cybersecurity staff to volunteer for border help | Judge rules Qualcomm broke antitrust law | Bill calls for 5G national security strategy Tech gets brief reprieve from Trump's Huawei ban Hillicon Valley: Trump takes flak for not joining anti-extremism pact | Phone carriers largely end sharing of location data | Huawei pushes back on ban | Florida lawmakers demand to learn counties hacked by Russians | Feds bust 0M cybercrime group MORE from including the question in the census.

The Census Bureau is part of the Commerce Department.

Francisco said the court’s immediate intervention is needed because the government must finalize the 2020 census questionnaire by the end of June for printing purposes. He argued it is exceedingly unlikely that the parties could obtain full review in both the appeals court and the Supreme Court before July.

“Even highly expedited briefing and decision in the court of appeals likely would leave insufficient time for petition — and merits-stage briefing, argument, and decision in this court this term, he said.

Furman ruled on Jan. 15 that the decision to add the question was “arbitrary and capricious” and violated the law governing agency actions in multiple ways.

New York and 17 other states, along with 16 municipal governments and the U.S. Conference of Mayors fighting against including the question, argued in court briefs that Furman’s decision was correctly decided but said if the justices think a review is warranted then it should happen as soon as possible.

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The justices initially agreed to stay a district court order that required Ross to sit for questioning under oath in the discovery phase of the litigation and review whether the district court could order discovery outside the administrative record.

But after Furman moved forward with the trial and ultimately barred Ross from adding the question, the justices removed the case from the court’s calendar. Francisco then asked the court to review Furman’s ruling blocking the question from the census instead.

Only four justices need to be in agreement for the court to take up a case.

The American Civil Liberties Union (ACLU), which challenged the question on behalf of immigrant rights groups, said it looks forward to defending its trial court victory before the Supreme Court.

“Adding a citizenship question to the census would cause incalculable damage to our democracy," Dale Ho, director of the ACLU’s Voting Rights Project, said in a statement Friday. “The evidence presented at trial exposed this was the Trump administration’s plan from the get-go.”

When the Commerce Department agreed in March to add the question to the 2020 census, Ross said it was to help the Department of Justice (DOJ) better enforce the Voting Rights Act. DOJ had asked for its inclusion in the questionnaire.

Kelly Lacom, a DOJ spokeswoman, said the agency is pleased with the court’s decision.

“Secretary Ross, who has authority over the census, decided to reinstate a question concerning citizenship, which has been included in the census for most of the last 200 years, in response to the Department of Justice’s request for better data to protect American voters against racial discrimination,” she said in a statement. “The Department of Justice looks forward to argument before the Supreme Court.”

The government argues that questions about citizenship or country of birth have been asked of at least a sample of the population in all but one decennial census from 1820 to 2000.

But states, local governments and groups challenging the Trump administration's move say the question will keep immigrants and non-citizens from responding, jeopardizing the overall accuracy of the population count.

ACLU said that by the government's own analysis, adding the question will stop about 6.5 million people from participating in the census.

Census data is used to redraw congressional districts, which determine how many House seats each state receives and how many Electoral College votes they can cast in presidential elections. The count also determines how federal funding is divvied up among states.

ACLU said the district court found that Arizona, California, Florida, Illinois, New York and Texas face a “certainly impending” or “substantial risk of losing a seat” in the House and that numerous states would “lose funds from several federal programs” if the citizenship question is included.

It’s rare for the Supreme Court to bypass a regional appeals court and agree to hear a direct appeal of a district court ruling.

Stephen Vladeck, a professor at the University of Texas School of Law, told The Hill recently said the Supreme Court hasn’t taken this step since 2004.

Updated at 5:40 p.m.