The Supreme Court heard oral arguments on Tuesday as it tries to decide whether the Trump administration has the authority to add a citizenship question to the 2020 census. Based on the questions posed by the justices during these arguments, the court seems likely to rule in favor of the administration.
The total number of Americans counted by the census is used to determine how many seats each state gets in the House of Representatives, as well as how many electoral votes it gets during the presidential election. The census is taken once every ten years. This particular question has been on the census before but was removed in 1960.
When he ruled in January to block the addition of this question, U.S. District Judge Jesse Furman said that adding the question would result in “hundreds of thousands — of millions — people” going uncounted. He also said that “for decades thereafter the official position of the Census Bureau was that reintroducing such a question was inadvisable because it would depress the count for already ‘hard-to-count’ groups — particularly noncitizens and Hispanics — whose members would be less likely to participate in the census for fear that the data could be used against them or their loved ones.”
But the Trump administration has argued that the citizenship question is needed to properly enforce the Voting Rights Act. Presenting the administration’s case before the court on Tuesday, Solicitor General Noel Francisco said that Commerce Secretary Wilbur Ross “understood there was a downside” to adding the question, but had “concluded that the benefits outweighed the costs.”
The Voting Rights Act of 1965 was designed to prevent the suppression of minority votes.
Justices Elena Kagan and Sonia Sotomayor grilled Francisco about the addition of the question, as expected. Chief Justice John Roberts, however, now largely considered to be the swing vote since the retirement of former Associate Justice Anthony Kennedy, asked the New York Solicitor General Barbara Underwood, who was arguing against adding the question, if the administration could be right that the question would help enforcement of the Voting Rights Act:
Do you think it wouldn’t help voting rights enforcement? The CVAP, Citizen Voting Age Population, is the critical element in voting rights enforcement, and this is getting citizen information.
The other conservative justices also seemed to lean in favor of the administration. Newly minted Justice Brett Kavanaugh, who succeeded the more liberal Kennedy, noted that many other countries include such a question. Justices Neil Gorsuch and Samuel Alito both questioned whether adding the question would actually depress the number of responses, since obstacles like a language barrier or socioeconomic differences might keep non-citizens from filling out their census forms. Both Kavanaugh and Gorsuch are Trump appointees.
The court is expected to issue a ruling on the case in June.