Jurisprudence

The Supreme Court Lets Trump Sabotage the Census in the Eleventh Hour

A woman in a face mask fills out a form with another woman in a car
A Census volunteer at work. Michael Loccisano/Getty Images

In a perfunctory, unsigned order, the Supreme Court allowed the Trump administration to suspend the census count on Tuesday, bringing the 2020 census to a premature and likely permanent halt. Only Justice Sonia Sotomayor noted her dissent. The court’s decision all but ensures that, for the next ten years, immigrants and racial minorities will receive diminished representation in Congress and state legislatures, giving Republicans an unearned electoral advantage through 2030.

For several years, Donald Trump has sought to sabotage the census by any means necessary. He seeks to lock in an “undercount” of Black, Latino, and Native Americans, as well as immigrant communities—all traditionally Democratic voters. Initially, Trump sought to add a citizenship question to the census, which would dramatically reduce response rates from immigrants and Hispanics. When the Supreme Court blocked that scheme, his administration changed tacks: It chose instead to rush the census, producing an undercount that will disproportionately leave out minorities. The Census Bureau adopted a compressed timeline that would undercut its accuracy. It also operated with less than half the workforce of the 2010 census.

Even after the pandemic forced the bureau to suspend its operations, and natural disasters in the West and South stymied data collection, the administration refused to extend the count. To the contrary, Secretary of Commerce Wilbur Ross, who oversees the census, actually moved the deadline back, from Oct. 31 to Sept. 30. Ross claimed this shift was necessary to meet the Dec. 31 congressional deadline for reporting the data.

In September, a federal judge reinstated the Oct. 31 deadline, and a federal appeals court refused to lift that order. So the Department of Justice asked the Supreme Court to jump in. SCOTUS accepted the DOJ’s invitation on Tuesday afternoon, staying the judge’s injunction while the appeals court considers the case, and until SCOTUS either takes it up or turns it away.  This decision effectively allows Ross to end the census immediately. The court did not explain its reasoning.

In dissent, Sotomayor pointed out that the government justification for ending the census early makes no sense: It had previously said that, no matter when it wrapped up, the census bureau could not meet the Dec. 31 deadline due to the calamities that have befallen the country this year. But “their story keeps changing,” Sotomayor wrote skeptically, and Ross now insists that the bureau can meet the deadline if it brings operations to an abrupt halt.

This halt is certain to produce an undercount in at least some states. “The Government attempts to downplay that risk by asserting that over 99 percent of households in 49 States are already accounted for,” Sotomayor wrote. She continued:

But even a fraction of a percent of the Nation’s 140 million households amounts to hundreds of thousands of people left uncounted. And significantly, the percentage of nonresponses is likely much higher among marginalized populations and in hard-to-count areas, such as rural and tribal lands. When governments allocate resources using census data, those populations will disproportionately bear the burden of any inaccuracies. It is thus unsurprising that, for the 2010 census, the Bureau continued its field operations for a full month after reaching the 99 percent threshold that the Government now deems good enough. The harms caused by rushing this year’s census count are irreparable. And respondents will suffer their lasting impact for at least the next 10 years.

Sotomayor is right. The government’s “bald assertion that its collection efforts are 99 percent complete” are not particularly comforting in a country of 330 million people. Census data is used to apportion not just congressional districts in the House of Representatives, but also state legislative districts. In many states, there are fewer than 10,000 people per legislative district. Thus, while 99 percent may sound like a solid response rate, it could still lead to unequal representation for undercounted communities. If even a few thousand people are undercounted, lawmakers will draw district lines that do not, in reality, give equal weight to every person’s vote. Regions with more minority communities will be underrepresented in the legislature. As Sotomayor explained, that’s why the Obama administration extended the 2010 census for an extra month after hitting a 99 percent response rate.

The Trump administration now takes the opposite approach: Faced with unprecedented obstacles—including an ongoing pandemic that has made it impossible for the Census Bureau to hire anywhere near enough staffers to complete the count—it sheared a month of operations. The Supreme Court has now approved that move, bringing the 2020 census to an early close. When lawmakers begin redistricting their states in 2021, it will be the vulnerable Americans who pay the price.

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