The Supreme Court Sees through the Trump Administration’s Racist Census Question

In a victory for immigrants and communities of color, a citizenship question will not be added to the 2020 Census. The Supreme Court decided yesterday that the Trump administration’s reason for adding a citizenship question to the Census was “contrived” – and that the administration must provide a better explanation before any such question can be added.

The U.S. Constitution mandates a national Census every 10 years; the count is meant to provide a variety of information about the state of the population. Data from the census provides information for critically important decisions – everything from the number of representatives each state gets in Congress to where to build new roads and schools.

But given the aggressive actions of the Trump administration against noncitizens and immigrants, the addition of a citizenship question to the 2020 Census would likely result in a dramatic undercount of the overall population – as many as 9 million people might not be counted. Put another way, more people than live in the state of New Jersey might be missed by the Census. Those going uncounted would be noncitizens, immigrants, and people with noncitizens in their families. The towns, cities, and states where these communities live would be underfunded and underrepresented. Their voices would be diminished not just in 2020, but for the next 10 years.

Despite these predicted effects, the Trump administration maintained that the reason it wanted to add a citizenship question was to enforce protections for communities of color under the Voting Rights Act (VRA) – a laughable proposition, given that the Trump Administration has brought zero cases under the VRA since inauguration. But Commerce Secretary Wilbur Ross wrote in a March 2018 memo that enforcing the VRA was the reason for adding the question to the Census. He also said that the Department of Justice (DOJ) had asked Commerce to do so.

During litigation, however, it became clear that the Secretary had lied. It was his own staff who reached out to DOJ originally, asking DOJ to request Commerce to add a question on citizenship so that Commerce would have a reason to do so. In fact, it emerged that Secretary Ross looked into adding a citizenship question barely a week after being confirmed. And in a dramatic, movie-worthy twist, files were discovered on a deceased Republican strategist’s computer that showed that adding a citizenship question was promoted explicitly because it would dilute the political power of the Latinx community.

Clearly, the Trump Administration was not trying to enforce the VRA. And that’s basically what the Supreme Court’s opinion said – and why the case was sent back to the agency in order to better describe their reasoning.

Unfortunately, this means that the Supreme Court’s decision is only temporary. If the agency is somehow able to return with a different, non-VRA explanation for why they want to add the question (and the explanation is backed up by past emails, files, and documents), then Chief Justice Roberts will likely approve the question.

It’s worth pausing on this: the five conservative members of the Court see nothing wrong with adding the citizenship question, despite its predicted impact on communities of color. That is why, this decision aside, the Court will not be a partner in protecting the rights of immigrants and noncitizens. We cannot rely on the courts – we must continue to organize and build power.

Happily, this decision was still a win. It is unlikely that the 2020 Census will contain the citizenship question, as the Trump Administration repeatedly emphasized the need for the Census Bureau to start printing forms by the end of June. It will be very challenging for Commerce to come up with a new rationale in time to meet that deadline.

The Supreme Court’s decision is great news for immigrant families and communities of color. But the decision was a complicated one – and again, only temporary. That means your advocacy and amplification of this issue is still needed.

Anna Applebaum is a legal intern with Advancement Project National. She is a J.D. candidate at NYU Law.