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A question asking Americans whether they’re citizens won’t go on the 2020 census form — for now. Opponents of the citizenship question had argued that the Trump administration violated the law by adding it over the objections of Census Bureau researchers who said that it was likely to discourage households with noncitizens from responding to the decennial count. In an ostensibly unanimous but deeply divided Supreme Court decision Thursday, the court ruled that the Trump administration’s explanation for why it wanted to add the question didn’t pass the sniff test — but the case could have had a very different outcome if the Trump administration hadn’t provided a clearly contrived rationale.
Commerce Secretary Wilbur Ross had claimed that the Justice Department needed data from the question to help enforce the Voting Rights Act, but three federal judges have ruled that Ross had already decided to add the question — and that he pressured the Justice Department to provide him with a reason. In a part of the ruling that was joined only by the court’s liberals, Chief Justice John Roberts wrote that there was “a significant mismatch between the Secretary’s decision and the rationale he provided.” In other words, the Trump administration had the right to add the question — its downfall was the dubious reason it supplied. The court did, however, leave a path for the question to be added — if the administration can persuade the courts to accept a different explanation in time.
The fate of the question now hinges in large part on when the census forms actually need to be printed. The Supreme Court’s decision sent the case back to the lower court, where the Commerce Department will have an opportunity to respond. The legal battle over the citizenship question has, so far, unfolded under the shadow of a deadline — the Census Bureau is supposed to start printing census forms on Monday. But a government witness suggested during the trial that the agency could, in theory, wait until as late as Oct. 31 to finalize the questionnaire. It’s not clear if this is actually the case, since the scale of the census’s printing project is enormous and the first census forms are due to be distributed in Alaska in January. It’s possible that the Commerce Department could provide a legitimate rationale, and the question could still go on the form. But the Trump administration may not be able to come up with a more convincing explanation — and the department will be racing against the clock.
Meanwhile, a separate legal battle over the question is brewing in the lower courts. Last month, the question’s challengers submitted new evidencefrom the files of a deceased Republican redistricting expert who wrote in a 2015 study that adding the citizenship question could entrench GOP power by allowing state legislators to redistrict using only citizens as the population base, rather than the total population. A case involving the question in Maryland was recently reopened to explore whether this evidence suggests that the Trump administration violated Hispanics’ civil rights by diluting their political power. A court ruling that the question was added with discriminatory intent could also keep it off the census form.
One key point from the ruling, though, is that the citizenship question isn’t inherently unconstitutional. Several lower court judges ruled that the question violated the Constitution’s enumeration clause, which mandates a count of every person, because the question seems likely to result in an undercount of certain populations. The court rejected that argument. So even though the Supreme Court’s ruling is a victory for opponents of the question this time around, it also means that a future administration isn’t constitutionally barred from adding the question. So a citizenship question could end up on a future census.
