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Supreme Court refuses to approve citizenship question on 2020 census

The Supreme Court of the United States in Washington, D.C., on September 25, 2018.(Olivier Douliery/Abaca Press/TNS)

The Supreme Court, delivering a political blow to the Trump administration and a victory for California, on Thursday refused to uphold an effort to ask all households about the citizenship of their residents as part of the 2020 census.

A 5-4 majority sent the matter back to a lower court for review, raising doubts about whether the administration will now have enough time to win approval to include a citizenship question in next year’s survey of all American households.

In a ruling by Chief Justice John G. Roberts Jr. and the four liberal justices, the court did not decide the issue, but said the Trump administration so far has not adequately laid out its reasons for adding the question beyond a “contrived” explanation.

“Reasoned decision-making under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction,” Roberts said.

He said the law “is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”

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The ruling included a direct rebuke of Commerce Secretary Wilbur Ross, who last year decided to add a citizenship question to all forms for the first time since 1950.

“Altogether, the evidence tells a story that does not match the explanation the secretary gave for his decision,” Roberts said.

Census experts, citing the climate of fear in immigrant communities, predicted that millions of households will refuse to participate in the census if the question is asked. This in turn could produce a severe undercount in states such as California and Texas, and lead to a loss of government funds and political power for the next decade.

California Gov. Gavin Newsom said Thursday that the state would remain vigilant, regardless of the Supreme Court’s action, to ensure an accurate count of residents in 2020.

“We are encouraging our diverse communities of the power and potency of participation, and we are going to make sure we run an unprecedented campaign to touch every corner of this state,” he said, adding that California is spending $187 million to ensure a complete count.

Thursday’s decision could also affect other pending litigation against the Trump administration involving changes to environmental and immigration rules and policies. Some of those changes have been challenged in court on the basis that the administration did not adequately explain its rationale or follow the proper procedures.

President Donald Trump, who is currently in Japan for the G-20 meeting, said it was “ridiculous” that the citizenship question could not be added.

“Only in America!” he tweeted, adding that he had asked his attorneys “if they can delay the census, no matter how long” until the Supreme Court can be provided the information it is seeking.

In a statement, Justice Department spokesperson Kelly Laco said, “We are disappointed by the Supreme Court’s decision today. The Department of Justice will continue to defend this administration’s lawful exercises of executive power.”

Government lawyers had said the Census Bureau needed a decision on the new question by July so it could begin printing forms. That deadline may be pushed back, but it is not clear that the administration can muster the evidence to win its claim.

The court was badly divided on the issue.

Four of its conservatives would have ruled for the Trump administration and upheld its decision to add the question.

“For the first time ever, the court invalidates an agency action solely because it questions the sincerity of the agency’s otherwise adequate rationale,” said Justice Clarence Thomas, joined by Justices Neil M. Gorsuch and Brett M. Kavanaugh. Justice Samuel A. Alito Jr. dissented separately.

Some conservative activists pounced on Roberts, recalling that he had also provided the key fifth vote with liberal justices to uphold the Affordable Care Act. American Conservative Union chair Matt Schlapp tweeted that he was in favor of “impeaching the chief justice for lying to all of us about his support of the Constitution.”

Many conservatives were hoping to use the census to obtain more accurate citizenship data, which could allow states to redraw their election maps based on the number of eligible citizens, rather than the total population, as is currently used. Republican strategist Tom Hofeller, who died last year, had advised his clients four years ago that the use of voter data “would be advantageous to Republicans and non-Hispanic whites,” and “would clearly be a disadvantage for the Democrats.” His words came to light recently after his daughter turned over his computer files to lawyers for Common Cause in North Carolina.

Last year, Ross said he had decided to add the citizenship question in response to a request from the Justice Department, citing its duty to enforce the Voting Rights Act of 1965. Sometimes, judges and government lawyers need to know if there are enough black or Latino voters in an area to draw an election district that might elect a minority representative.

Voting rights experts scoffed at that explanation. They said past administrations had vigorously enforced the voting rights law for more than 50 years without block-by-block data on the number of residents who were adult citizens. In such cases, judges had relied on data from census surveys.

Lawyers for New York, California and 15 other Democratic-leaning states went to court, alleging Ross’ move was illegal and unconstitutional, motivated by a desire to help Republicans.

In January, U.S. District Judge Jesse Furman in New York blocked the citizenship question and issued a 277-page opinion describing how Ross had failed to follow the advice of census experts or explain his reasons for making a change that could lead to a severe undercount. Judges in San Francisco and Maryland handed down similar rulings.

The Supreme Court agreed to hear the administration’s appeal in the case of Department of Commerce vs. New York on a fast-track basis because the government said it needed to begin printing census forms this summer.

When the case was argued in April, the five conservative justices, all Republican appointees, sounded ready to rule for the government.

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(Times staff writer Taryn Luna contributed to this report.)

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© 2019 Los Angeles Times

Distributed by Tribune Content Agency, LLC.