“Are you a citizen of the United States?"
That's the controversial question the Trump administration wants on the 2020 census. And after the Supreme Court heard arguments for and against on Tuesday, the conservative justices seemed to be leaning in the administration's direction.
The issue at hand was whether Trump’s Commerce Secretary, Wilbur Ross, had the right to add the question, and whether it matters that the question may lead to a massive undercounting of immigrants. The government says they want the question for voting rights enforcement; civil rights advocates see it as another anti-immigrant action.
The Census takes place every 10 years, as required by the Constitution. And the results have massive implications: They determine how many congressional seats and Electoral College votes each state gets, and help determine how almost $900 billion in federal funding gets allocated.
During the Tuesday arguments, Solicitor General Noel Francisco argued that it’s a “tradeoff between information and accuracy.” Justice Brett Kavanaugh and Chief Justice John Roberts seemed to buy the government’s argument about voting rights enforcement.
“Do you think it wouldn’t help voting rights enforcement?” the chief justice asked one of the lawyers arguing the question should be removed. “The CVAP, Citizen Voting Age Population, is the critical element in voting rights enforcement, and this is getting citizenship information."
Trump has the advantage of having two of his appointees — Justices Neil Gorsuch and Brett Kavanaugh — on the bench, putting conservatives now in the majority. And by the end of the 80-minute arguments, it seemed they were ready to side with the administration.
The 2010 Census asked 10 basic questions of every household in America: How many people lived there, how old they were, what their race, ethnicity, and gender were. It didn’t ask whether people were citizens or not. The government did ask a citizenship question in every census between 1890 and 1950. It was taken out by 1960.
But last year, the Bureau announced it was bringing the question back after it had been shelved for six decades. It claimed the Justice Department needed the citizenship data to properly enforce the Voting Rights Act. But civil rights groups thought Ross’s real motive was to drive down immigrant participation. So they sued and won at lower-level courts in New York and California.
With the Census survey sheets scheduled to be printed this summer, the Supreme Court agreed to hear the case.
It turns out that nobody really disputes that the question will reduce the number of immigrants who respond. The Census Bureau itself estimates that there will be a 5 percent decrease in the number of initial responses.
After the hearing, Vanita Gupta, former deputy assistant attorney general under President Obama and president of the Leadership Conference on Civil and Human Rights, told VICE News that she was not hopeful that the court will strike down the citizenship question.
"I think it's going to be a 5-4 decision. I think all eyes are on Justice Roberts,” she said. "You know, I think Justice Roberts and Justice Kavanaugh today were the only two justices that asked questions of both sides. I'm not terribly optimistic about where Justice Roberts comes out.”
If the question does get to stay on the 2020 census, Gupta and organizations like the one she represents will have a two-pronged approach to keep the fight going: pressuring Congress to act and also organizing at the grassroots level to still make sure everyone fills out their census paperwork.
“There will be a census come 2020," Gupta said. "And the question is, will it be accurate and reflect everyone in this country or only, you know, a whiter demographic, which will have long-term consequences politically and economically?”