Census citizenship question ruling sets up legal path for Texans fighting the question

The U.S. Supreme Court’s decision to block, at least for now, the Trump administration’s plan to include a citizenship question on the 2020 census offered opponents of the question a temporary reprieve.

But it also gave another legal challenge to the citizenship question — this one filed, in part, by Hispanic Texas lawmakers and several Texas-based nonprofits — some legal breathing room to move forward as a federal judge considers whether the administration added the question to intentionally discriminate against Hispanics.

In a complicated ruling, the Supreme Court found Thursday that the Trump administration had provided a “contrived” rationale for wanting to gather citizenship information through the once-a-decade count and agreed with the lower court that blocked the inclusion of the question if the administration could not offer up a better justification.

“Altogether, the evidence tells a story that does not match the explanation the [U.S. commerce] secretary gave for his decision,” said Chief Justice John Roberts, writing for the majority, pointing to the administration’s purported reasoning that the question was added after the U.S. Department of Justice asked for citizenship data that would allow it to better enforce the federal Voting Rights Act.

That decision came two days after a federal appeals court ruled that Maryland-based federal Judge George Hazel — who is considering another legal challenge that was not before the high court — could consider new evidence that recently emerged in the litigation related to the federal government’s motivation for adding the question.

That challenge in Maryland was filed on behalf of more than two dozen plaintiffs, including the Texas House’s Mexican American Legislative Caucus, the Texas Senate Hispanic Caucus and several Texas-based nonprofits that advocate for Latino residents. They argued that including the question would lead to a disproportionate undercount of immigrants and people of color.

Hazel had already agreed with those plaintiffs’ allegations that the inclusion of the citizenship question violated the U.S. Constitution’s enumeration clause and a federal law that governs federal agencies and their decision-making process.

But they failed to convince Hazel that the question unconstitutionally violated equal-protection guarantees and that Trump administration officials had conspired to add the question to the 2020 questionnaire based on animus against Hispanics and immigrants, particularly when it comes to counting noncitizens for the apportionment of political districts.

(Those issues were not before the Supreme Court in the case it ruled on this week.)

On Monday, Hazel said he would reconsider the plaintiffs’ arguments after evidence emerged suggesting the question may have been tacked on to advance Republican gerrymandering and undermine Hispanics’ political clout.

At the center of that evidence was an analysis of the Texas House’s 150 districts by Thomas B. Hofeller, a longtime Republican redistricting strategist, to demonstrate the effect that using the population of citizens who are of voting age, as opposed to total population, would have on drawing up legislative districts.

In his analysis, Hofeller noted that such a change in how districts are drawn — which would clearly be “advantageous to Republicans and Non-Hispanic Whites” — was “functionally unworkable” without the inclusion of a citizenship question on the 2020 census questionnaire. The evidence showed that years later, Hofeller worked to “concoct” the Voting Rights Act rationale the administration offered for adding the citizenship question, Hazel wrote in a recent order.

“It is becoming difficult to avoid seeing that which is increasingly clear,” Hazel said. “As more puzzle pieces are placed on the mat, a disturbing picture of the decisionmakers’ motives takes shape.”

For those fighting the administration in Maryland, the Supreme Court’s ruling underscored the legal stakes.

"The citizenship question is blocked for now but the Supreme Court’s decision leaves open the possibility for it to come back. That's why our lawsuit is so important,” said Juanita Valdez-Cox, the executive director of La Unión del Pueblo Entero. “In fact, the court in Maryland is weighing new evidence that shows that the real intention is to injure communities of color for partisan gain.”

Lawyers with the Mexican American Legal Defense and Educational Fund, which is representing some of the Texas plaintiffs, said Thursday they would immediately pursue their claims before Hazel. They had already asked him to enter an injunction while the court was still considering the case so they could prevent the administration from adding the citizenship question to the 2020 census forms it had planned to print this summer.

Although this case will play out in Maryland, the ongoing census fight could deepen the partisan divide on the issue in Texas.

Texas Democrats have vociferously opposed to the citizenship question because an undercount could affect areas of the state that are more likely to be home to Hispanic and immigrant households, which they largely represent. And the legislative caucuses alleging the Trump administration added the question to intentionally discriminate against Hispanics by diluting their political power are made up largely of Democratic lawmakers.

Texas Republican leaders, meanwhile, have endorsed the citizenship question. Texas Attorney General Ken Paxton has signed on to amicus briefs in support of the administration’s push to collect citizenship data on the census. Though he was largely silent on the issue for months, Gov. Greg Abbott recently told the Austin American-Statesman he supported the effort because “it seems like it would yield valuable information” and that concerns about an undercount are “nothing other than conjecture.”

In reality, the U.S. Census Bureau itself has found that a citizenship question on the census could lead to an undercount of noncitizens and Hispanics.

That would come at a high financial and political price for Texas.

Texas has long been considered a hard-to-count state, but local officials and demographers have indicated that the addition of the citizenship question would exacerbate those challenges because immigrants and their families would be too afraid to respond to a government questionnaire that asks about citizenship status in the current political climate.

An undercount would jeopardize the billions of federal dollars the state and local communities receive for health care assistance and transportation projects. Various projections have also shown that an undercount tied to the citizenship question could cost Texas at least one of the three congressional seats it was expected to gain because of the massive population growth the state has experienced in the last decade. That would also minimize the state’s gain in electoral college votes during presidential elections.