Trump administration asks U.S. Supreme Court to quickly take up census citizenship question

Last week, a federal judge in New York ordered the administration to stop its plans to add the question to the survey.

The U.S. Supreme Court in Washington, D.C., on June 7, 2017.
The U.S. Supreme Court in Washington, D.C., on June 7, 2017.  Shelby Knowles for The Texas Tribune

The Trump administration asked the Supreme Court on Tuesday to bypass its normal procedures and decide quickly whether a question on citizenship can be placed on the 2020 Census.

Last week, U.S. District Judge Jesse M. Furman of New York ordered the administration to stop its plans to add the question to the survey. Furman said Commerce Secretary Wilbur Ross broke a “veritable smorgasbord” of federal rules by ordering the citizenship question added against the advice of career officials who said it was likely to cut down the response rate and make the census less accurate.

Normally, the Justice Department would appeal the decision to the U.S. Court of Appeals for the 2nd Circuit. But Solicitor General Noel J. Francisco said that would not leave enough time for a final ruling from the Supreme Court.

“The government must finalize the census questionnaire by the end of June 2019 to enable it to be printed on time,” he told the court. “It is exceedingly unlikely that there is sufficient time for review in both the court of appeals and in this Court by that deadline.”

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Citing a Supreme Court rule, Francisco said the “case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”

Plaintiffs in the New York trial include 18 states and several cities and jurisdictions, along with civil rights groups. The trial addressed two of seven lawsuits that arose from Ross’s March decision to add the question. A trial over the question is underway in California, and another is beginning in Maryland.

Those opponents say asking about citizenship would reduce response rates in immigrant communities, possibly affecting congressional redistricting and the distribution of federal funding. The government said the question was necessary to enforce the Voting Rights Act.

In Furman’s 277-page ruling, he said Congress prohibited the commerce secretary from adding a question to census forms if the information was available in some other way. He said that the citizenship data was available from existing administrative records.

Furman said that in a “startling number of ways,” Ross’s explanation for his decision was “unsupported by, or even counter to, the evidence.”

For instance, Ross said that the impetus for adding the question came from the DOJ, which needed information to enforce voting rights laws. But the record showed that Ross had wanted to add the question before the Justice Department request and that it was Commerce that had commenced the effort to add the question.

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The Supreme Court already had scheduled a hearing on one aspect of the case. The plaintiffs had wanted to depose Ross about his reasons for adding the question. But the Supreme Court blocked that in October. In November, it said the trial in Furman’s court could go forward and agreed to consider the legal questions about forcing a high-ranking official to be questioned about motivation.

But that question seems less important now, and the court last week removed the case from its Feb. 19 docket.