U.S. Supreme Court

Supreme Court allows trial in challenge to census citizenship question; three justices dissent

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2020 census

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The U.S. Supreme Court has refused to block a trial in a challenge to the U.S. Commerce Department’s decision to add a citizenship question on the 2020 census.

The trial of two consolidated cases challenging the question was set to begin in Manhattan on Monday, report the New York Law Journal, the Washington Post, USA Today and the New York Times. SCOTUSblog links to the Supreme Court’s Friday order denying the stay application.

Three justices would have granted a stay: Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch. The justices didn’t have to disclose how they voted, but at least five votes were needed to refuse the stay, the Washington Post explains.

The plaintiffs in one of the cases are 18 states and several cities. Several advocacy groups filed the second suit.

The plaintiffs contend the citizenship question would reduce the head count because many immigrants would refuse to participate. That would produce an undercount in some states that would reduce federal funding they receive and affect congressional representation.

The Supreme Court has previously ruled that noncitizens must be included in population counts for redistricting, according to the New York Times. The court based its decision on the 14th Amendment’s requirement that the House of Representative be apportioned based on “the whole number of persons in each state.”

The plaintiffs allege violations of the Administrative Procedure Act and the equal protection clause. They claim that Commerce Secretary Wilbur Ross decided to add the citizenship question and then tried to manufacture reasons to support the decision, according to the New York Law Journal story.

Last month, the U.S. Supreme Court blocked Ross’ deposition but said other discovery could go forward, including a deposition of a Department of Justice lawyer, John Gore.

The plaintiffs cite evidence uncovered during discovery that Ross spoke to then-White House adviser Stephen Bannon and Kansas Secretary of State Kris Kobach about the citizenship question before any decision was made.

The plaintiffs also point to deposition testimony by chief Census Bureau scientist John Abowd, who wrote a report estimating that the response rate by noncitizen households could drop by 5.1 percent or more if the question is added, according to the New York Law Journal account According to the plaintiffs, Abowd testified in his deposition that the decline could be higher than that.

The government points out that the citizenship question has been added in the past. It contends that legal review should be based only on the administrative record, and there should be no “intrusive fishing expedition” of high-ranking government officials.

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