The Post-RBG Supreme Court May Soon Let Trump Sabotage the Census

We’re about to find out if the president can deny equal representation to immigrants and people of color.

Donald Trump removes his mask while standing on a balcony with U.S. flags
President Donald Trump removes his mask at the White House on Monday. Win McNamee/Getty Images

Donald Trump has done everything he can to sabotage the 2020 census. It’s easy to see why: By manipulating the census, Trump can entrench Republican power for a decade by ensuring that GOP voters are overrepresented in Congress and state legislatures. So far, the federal judiciary has shot down much of the mischief. But now the fate of the census is once again in the Supreme Court’s hands, in the first test of how the court will handle assaults on racial minorities’ electoral power following Justice Ruth Bader Ginsburg’s death.

There are two census cases pending before the Supreme Court. The first asks the court to halt the count immediately, even though it is far behind schedule due to the pandemic. The second asks the court to let Trump exclude undocumented immigrants from the apportionment of seats in the House of Representatives, which would strip congressional seats from states with large immigrant communities by rejecting the constitutional personhood of immigrants. Federal courts have already blocked Trump’s premature termination of the census count and rejected his attack on equal representation. At any moment, the Supreme Court could reverse both these decisions.

Start with the Trump administration’s assault on the accuracy of the census. 2020 has been a historically terrible year to count every person living in the United States, as the Constitution requires. The pandemic forced the Census Bureau to suspend field operations for two weeks. When it tried to begin again, the agency couldn’t find enough “enumerators” willing to contact individuals who haven’t yet responded. It is operating with less than half the workforce of the 2010 census on an unusually compressed timeline. Natural disasters—wildfires on the West Coast, hurricanes in the South—further hindered field operations.

Instead of extending the census count in the face of these roadblocks, Trump’s appointees cut it short. In August, Secretary of Commerce Wilbur Ross, who oversees the census, moved the deadline from Oct. 31 to Sept. 30, claiming it was necessary to meet statutory deadlines. At that point, less than 63 percent of households had responded. Experts at the bureau repeatedly warned that a shorter count will have a devastating effect on the census’s accuracy. The impact on racial minorities will be especially severe. Ross ignored the bureau’s objections and pushed forward with his plan.

On Sept. 24, a federal judge reinstated the Oct. 31 deadline, finding that an early stop would guarantee an undercount, particularly of minority populations. A federal appeals court declined to lift that order, so the Justice Department ran to the Supreme Court seeking an emergency stay. If SCOTUS grants this request, it will instantly stop the census count, locking in the current, defective data. Its decision would affect the political balance of power for a decade. In 2021, state legislatures will redraw their legislative districts using the census results. The federal government will distribute billions of dollars in funding using the census results. Seats in the House of Representatives will be reapportioned using the census results. If people of color are undercounted—as they are right now—white, rural voters will get even more representation and more federal funds. An undercount, in other words, translates into an unearned electoral benefit for the GOP.

Ross’ undercount scheme isn’t the Trump administration’s only attempt to meddle with the allocation of House seats. After each census, the executive branch calculates the number of congressional seats each state gets based on population. The House transmits this information to the states, which redraw their districts with roughly equal population. In July, however, Trump announced that he would exclude undocumented immigrants from the census apportionment data. If successful, this move would peel off House seats from diverse states like California and award them to more homogeneous states like Ohio.

There are three problems with this strategy: It is impossible, it violates federal statute, and it’s unconstitutional. The Census Bureau has no idea how many undocumented immigrants live in each state, and no way to count. Even if it could, federal law directs the executive to provide “the total population” of each state and does not give him authority to futz with the numbers by subtracting a particular group. And even if Congress did allow the president to exclude certain groups from apportionment, the Constitution does not: The 14th Amendment explicitly requires House seats to be apportioned based on “the whole number of persons” who reside in each state. By claiming that undocumented immigrants are not “persons” who reside in the United States, Trump is trying to establish a modern three-fifths clause.

In September, a three-judge district court blocked this plan because, again, it’s obviously illegal. The Justice Department appealed to SCOTUS, which is required to hear the case due to a quirk in federal law. But the clock is ticking: Federal law requires the administration to transmit apportionment information in early January. The Supreme Court has less than three months to resolve the dispute.

How will SCOTUS come down on these cases? Chief Justice John Roberts demonstrated his willingness to repudiate Trump’s census shenanigans when he blocked the addition of a citizenship question in 2019. That decision, though, was 5–4, and one member of the majority, Ginsburg, died in September. (If SCOTUS splits 4–4, it automatically affirms the lower court’s decision.) Moreover, Roberts swung left because the administration lied so blatantly; he did not care that a citizenship question would make the count less accurate. The chief justice might view both cases as political disputes from which federal courts should stay away. Then again, if the Senate confirms Amy Coney Barrett posthaste, Roberts’ vote won’t matter: Even if he votes with the liberals, there may be five justices eager to let Trump muck up the census however he wishes.

Next year’s redistricting process will determine who controls state legislatures and the House for a decade. If Trump can rig the census, he can rig redistricting too, exacerbating minority rule by shifting more power toward Republicans. The Supreme Court will soon decide whether the president can put his thumb on the scale of state and federal elections for the next 10 years.

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