In the Know: Analyzing SCOTUS Hearing on Adding a Citizenship Question to 2020 Census

On Tuesday, the U.S. Supreme Court heard Department of Commerce v. New York, a case challenging the Administration’s decision to add a citizenship question to the 2020 Census short form. The addition of the question has been controversial and is expected to have a chilling impact on Census participation, particularly in hard to count communities. The League of Women Voters of New York State (LWVNYS) is a plaintiff on the litigation and LWVUS joined more than 175 civic organizations in filing an amicus brief in this case.

The Solicitor General Francisco, representing the Department of Commerce, argued that in 2018 Secretary Ross reinstated a citizenship question that has been asked as part of the Census in "one form or another" for nearly 200 years and would assist in Voting Rights Act enforcement. When pressed by Justice Sotomayor, General Francisco clarified that he was referring to the long form of the American Community Survey, an ongoing survey that gathers demographic information such as ancestry, income, and disability.

New York Solicitor General Underwood, representing the state of New York and individual plaintiffs, argued that because there is evidence that the addition of a citizenship question would lead to a decline in participation among Hispanic communities, that Secretary Ross’s reasoning that such information will help with voting rights enforcement was flawed. General Underwood asked the court to balance the need for an untested question with the risk of the undisputed decline in Hispanic communities.

Dale Ho, representing the New York Immigration Coalition, challenged the assertion that a citizenship question would enhance Voting Rights Act enforcement arguing that, "the VRA requires the drawing of districts in which minority voters constitute a majority...under some circumstance...but, if the minority group has relatively low citizenship rates, as is the case with Hispanic populations...then you need citizenship data to make sure you’re drawing a district in which minority voters are, in fact, a majority of the population." He finished by saying that data that is wrong one-third of the time, as the Bureau acknowledges, undermines the rationale provided by the Administration.

Douglas Letter, representing the U.S. House of Representatives as amicus curiae, argued that where the accuracy of the enumeration process is clearly compromised, that such showing is a statutory violation under the Administrative Procedure Act and the U.S. Constitution which would warrant the Court in rending a decision on whether the question is appropriate.

In reading the transcript it seems the Court was really struggling to answer a couple questions: (1) is evidence of a decline, slight or otherwise, sufficient to rule that the citizenship question violates the Enumeration Clause?, and (2) if the Census Bureau uses the census data collected for more than enumeration purposes, does that undermine the primary purpose of the Census which is to count every person living in United States?

All the oralists presented statistics and other evidence to support their brief, but the amount of testimony is unbalanced. This imbalance is because the Administration had a single advocate where there were three advocates arguing against the question. The reason for that is because of multiple plaintiffs and the legislative branch’s successful attempt to weigh in on the importance of resolving the question. Ultimately, the Court will have to balance all the evidence in determining how much of decline in the census is a violation of the Enumeration Clause and whether the purpose of the Census changes simply because the data collected is used for various purposes.

Now, we wait. A decision is expected sometime in June so that forms can be printed in time for the 2020 Census. Stay tuned for more updates.