Is the Supreme Court leaning toward allowing citizenship question on Census?

WASHINGTON, D.C.—The seeds of Pres. Donald J. Trump’s presidential legacy appears to be growing its roots in the Supreme Court, as the right-leaning court indicated it could lean toward allowing a question about citizenship to be included on the U.S. Census, which will be conducted in 2020.

            Including a question on citizenship, many have argued, would discourage a bloc of people from actually participating in Census2020. Some predict a citizenship question on Census 2020 would results in a 5.1 percent dip in responses. Certain minority groups, it’s argued, believe their answer to the citizenship question would be used against them or their families.

            Population numbers dictate federal funding for state and local projects. The Census also determines the number of representatives each state would have in Congress. Under-participation in the Census, accordingly, could result in certain states, counties or cities losing out on funding opportunities and political representation.

            The federal government, however, is arguing they need the citizenship question to help them enforce violations of the Voting Rights Act, among other issues.

            Also factoring into the legal debate: there could be as many as 22.6 million people who would answer Census 2020’s citizenship question but don’t have an administrative record of their citizenship status.

Questioning throughout the April 23 oral arguments hinted at the Supreme Court’s five conservative justices would support a citizenship question on Census 2020. The four liberal judges were certainly vocal about opposing the existence of a citizenship question in Census 2020. A citizenship question has not been on the census since 1960.

            Justice Sonia Sotomayor said the citizenship question would absolutely deter certain minority groups from responding to the Census.

            “This is about 100 percent that people will answer less,” Sotomayor said, arguing a citizenship question will directly result in fewer people responding to the Census. “That has been proven in study after study. One census surveyor described an incident where he walked into a home, started asking citizenship, and the person stopped and left his home, leaving the census surveyor sitting there.”

            Solicitor General Noel Francisco, who argued on behalf of the Department of Justice, stated the citizenship question was necessary to fill in certain data gaps and help federal attorneys enface the Voting Rights Act.

            “Having citizenship data would help improve Voting Rights Act enforcement,” Francisco said. “One of the critical elements of Voting Rights Act enforcement is something called Citizen Voting Age Population, or CVAP. Right now, everything for CVAP comes from the census, with the exception of citizenship. So population, age, race, all of that comes from the census except for citizenship, the C in CVAP.

            “So a large amount of voting rights litigation focuses on expert witnesses who try to fill in that missing C and try to estimate that missing C through imputation based on the American Community Survey, which goes to just one in 38 households,” Francisco continued.

            Justice Elena Kagan was not convinced. She, like Sotomayor, believes the citizenship question is intimidating and would scare certain people away.

            “Why is asking a question better when you know that asking a question is going to result in lots of non-responses and in lots of false reporting?” Kagan asked. “And so you can’t just go back to I’d rather ask a question. You have to say why you’d rather ask a question and what benefits it has to ask a question.”

            Sotomayor added the U.S. Census is merely a tool to determine population, nothing more.

            “The enumeration is how many people reside here, not how many are citizens. That’s what the census survey is supposed to figure out,” Sotomayer said.

            Solicitor Gen. Barbara Underwood, however, acknowledged there is value in collecting data on citizenship status. The Census, however, is not the forum, she argued.

            “It is certainly useful information for a country to have. And

I’m not suggesting at all that that information shouldn’t be collected,” Underwood told the court. “The question is whether it should be collected on the very instrument that is - whose principal function is to count the population, when we have such strong evidence that it will depress that count, make it less accurate.”

            Francisco, meanwhile, urged the justices to avoid going down the slippery slope of empowering every single group who take offense to a particular census question.

            “You are effectively empowering any group in the country to knock off any question on the census if they simply get together and boycott it,” Francisco stated to the court toward the end of oral arguments. “There are many people in this country who might find the sex question objectionable because it limits individuals to a binary choice. If a large number of people got together in one state and said we’re going to boycott the census as long as you included that sex question you are effectively empowering to knock that off.”

            Sotomayor didn’t take well to Francisco’s line of reasoning.

            “Are you suggesting that Hispanics are boycotting the census? Are you suggesting they don’t have, whether it is rational or not, that they don’t have a legitimate fear?” Sotomayor asked Francisco.

            “Not in the slightest, Your Honor. I am suggesting that the risk of my friend’s theory on the other side is that it countenance as precisely that type of coordinated behavior that would empower groups to knock off any question of the census that they found to be particularly objectionable,” Francisco responded.

AH1 will report on the court’s ruling as soon as justices announce their deliberation.

The full transcript of oral arguments can be found here.