For a brief moment following the Supreme Court’s 5–4 decision yesterday blocking the Trump administration from adding a citizenship question to the 2020 census, it seemed the whole horrible saga of the White House’s attempt to sabotage the vital decennial survey was over. The majority opinion, written by Chief Justice John Roberts—again playing the swing vote and siding with the liberals—concluded that the Department of Commerce’s justification for adding the controversial question (that is, that the Department of Justice needed more citizenship data to enforce the Voting Rights Act) was a pretextual justification for a decision Secretary Wilbur Ross had made earlier, in the first weeks of his tenure.
Then, at 2:30am Osaka time, Trump tweeted.
“Seems totally ridiculous that our government, and indeed Country, cannot ask a basic question of Citizenship in a very expensive, detailed and important Census, in this case for 2020,” the president said; “I have asked the lawyers if they can delay the Census, no matter how long, until the United States Supreme Court is given additional information from which it can make a final and decisive decision on this very critical matter.”
The tweet doesn’t immediately change anything. Roberts’ opinion was narrow but clear. He upheld the constitutionality of asking a citizenship question and disagreed with the liberals that the decision to do so was “arbitrary and capricious” under the Administrative Procedures Act. Rather, his complaint—the argument which carried the day—was that the “sole stated reason” provided by Secretary Ross for his decision was “contrived,” a “distraction” rather than a “reasoned explanation.” Accepting “contrived reasons” for agency decisions, Roberts wrote, “would defeat the purpose” of judicial review. As former Department of Justice civil rights lawyer Justin Levitt explained, the Court has told the Department of Commerce that they can’t “give a fake reason” for a decision. The citizenship question could be legal to ask, Roberts suggests, but only if Ross can come up with a real reason for asking it.
Secretary Ross’s problem now is time. The Bureau of the Census has repeatedly said the questionnaire needed to be finalized for printing by June 30. A bureau official testified a few weeks ago that printing could be delayed until as late as October, but only if “exceptional resources” were made available. The Court’s decision remands the case back to the U.S. District Court for the Southern District of New York and Judge Jesse Furman, who is plenty suspicious of Ross already, and now likely to thoroughly scrutinize any new rationale. And ultimately, the new rationale will have to meet Chief Justice Roberts’s standard of “reasoned explanation.” Ross can’t simply grab something out of the air without at least going through the motions of an agency decision-making process. That, too, would take time.
Thus Trump’s tweet: the only way to save the citizenship question is to delay the start. But, census experts say, delay is not really an option either.
“The 2020 Census can’t be delayed, constitutionally, legally, or operationally. The Constitution’s census clause and its implementing statute require an enumeration and apportionment of the U.S. House of Representatives every ten years,” Terri Ann Lowenthal, a nationally recognized census expert, told me. “Operationally, final preparations are essentially on autopilot to launch the count with a reference date of April 1st. It takes a full decade to plan a census; the Census Bureau cannot shift operations on a moment’s notice and still complete a thorough count and all tabulations on time.”
Lowenthal served as staff director of the House Census Oversight Committee from 1987 to 1994, and has been consulting on census issues ever since. She knows this stuff like the back of her hand. In all of our conversations, stretching back to April of 2018, when I first became fixated on the 2020 Census, she has emphasized the punishing schedule of census preparations. It’s a demanding countdown, second by second; any mistake, any delay can throw the whole, painstaking process off course—and usually cost millions of dollars to remedy. “The 2020 Census must start as planned on January 21st, or it won’t happen next year, in my opinion,” Lowenthal told me, “and that would be a waste of $15 billion in taxpayer funds and a terrible stain on the history of our democracy.”
Even if the administration can scrounge up the “exceptional resources” to delay printing and Ross comes back with a new explanation for adding a citizenship question, the White House could face another hurdle. Last month, it was revealed that deceased GOP redistricting expert Tom Hofeller had helped manufacture the original citizenship question rationale—and advocated for it on the basis of research suggesting that asking a citizenship question would “clearly be a disadvantage to the Democrats” and “advantageous to Republicans and non-Hispanic whites.” This evidence could be the smoking gun. As Maryland District Court Judge George Hazel put it, the evidence from Hofeller’s hard drive “potentially connects the dots between a discriminatory purpose—diluting Hispanics’ political power—and Secretary Ross’s decision.”
The Supreme Court was unable to consider the Hofeller evidence in its ruling yesterday—although Solicitor General Noel Francisco, absurdly, requested that the Court throw out Maryland’s equal protection claim without being briefed on it. If the administration offers a new rationale for including a citizenship question, the discriminatory intent at the core of this entire enterprise won’t go away.
A final, grim note: another possibility is that the Trump administration keeps flailing until it is too late, and the 2020 Census is jeopardized in precisely the way Lowenthal augured. A poorly executed census—resulting in a huge undercount and untrustworthy numbers—would be a political disaster, one for which voters might punish the president at the polls in November 2020. But a failed census would also be one that does not capture the profound demographic changes that have taken place in the past ten years—changes that, under an effective census, would redistribute significant economic and political power to states with growing immigrant populations.
If the White House’s goal is subverting democracy to preserve the power of white people in the face of demographic evolution, perhaps for them, a failed 2020 Census is actually a success.