US Supreme Court will analyze case of census exclusions

President Donald Trump’s attempt to exclude people living in the United States illegally from the census to allocate seats in Congress is headed for the Supreme Court.

The Trump administration’s top lawyers hope judges in a court that includes the president’s three nominees will accept the idea, repeatedly rejected by lower courts. It is the most recent and almost certainly the last government approach to immigration to reach the highest court. The allegations will be made by phone due to the coronavirus pandemic.

And as Supreme Court justices weigh in on the effort to remove, for the first time, millions of non-citizens from the population count used to determine how many seats each state receives in the House of Representatives, in addition to the allocation of federal funds, the Experts say other issues loom for the 2020 census as it heads into uncharted territory on timing, data quality and politics.

A series of new questions outside of the final court decision could determine the final product of the census, even if the incoming Joe Biden administration will do something to try to reverse decisions made by Trump.

Among others: Will the Census Bureau of the United States Department of Commerce meet the year-end deadline for the delivery of the numbers used for the allocation of seats? Will the quality of the census data be affected by shortened calendar, a pandemic, and natural disasters? Could the Democratic-controlled House of Representatives reject the Republican administration’s numbers if it thinks they are wrong? Is the Senate going to pass a law that extends the deadlines for submitting the census figures?

“There are so many pieces that are dizzy,” said Margo Anderson, a history professor at the University of Wisconsin in Milwaukee.

The first unknown element is how the Supreme Court will rule.

Federal courts in California, Maryland and New York have ruled that Trump’s plan violates federal law or the Constitution, which says that “representatives must be assigned among the various states according to their respective numbers, counting the total number of people in each state”.

A fourth court, in the capital, ruled last week that a similar challenge to the administration’s plan was premature, an argument that also went to the country’s highest court.

“What Trump wants to do would be a radical departure. The losers would not be individuals. It would be entire states and communities that would lose representation when undocumented members of those communities are left out of the mail used for seat allocation, ”said Dale Ho, the American Civil Liberties Union attorney who will present arguments on behalf of immigration activists. and from civil rights groups on the Supreme Court.

The Trump administration argues that the Constitution and federal law allow the president to exclude “illegal aliens” from the count.

“As history, precedent and structure indicate, the president does not have to treat all illegal aliens as ‘inhabitants’ of the states and thereby allow his defiance of federal law to distort the assignment of people’s representatives. ”Wrote Acting Attorney General Jeffrey Wall.

According to federal government estimates, California could lose two to three lower house seats if people living in the country illegally were excluded, based on what the administration says are more than 2 million undocumented residents. in the state, but Ho points out that a change in the division of seats could result from much smaller numbers.

The Democrat-controlled lower house has argued that Trump’s plan would result in an unfair distribution of seats for partisan political purposes, the latest attempt to “manipulate the census in disturbing new ways.” The chamber says the president’s plan is part of a broad effort that included a blocked attempt by the Supreme Court to add a citizenship question to the census for the first time in 70 years.

For the order to be enforced, data processing on the seat allocation numbers would have to occur while Trump remains in power, but an announcement this month that data anomalies were found jeopardizes the ability of the Office of the Chief Executive Officer. Census to deliver the figures to the president for the December 31 deadline. Trump, in turn, has to send the numbers to Congress by January 10.

If data problems force a delay of even three weeks, the Census Bureau would release the numbers to the new president, Joe Biden, who takes office on January 20.

“The Biden administration will have to see what kind of damage the Trump administration left to the allocation of seats and determine if an accurate count can be used, including all people regardless of citizenship,” said Jeffrey Wice, associate professor. from the New York Law School and who is an expert in census and redistricting law.

A spokesman for Biden’s campaign did not respond to an email seeking comment.

Even if all is done on time, the House of Representatives, which will remain under Democratic control, could reject the seat allocation numbers on the grounds that they are not what Congress asked the Republican administration to deliver, Justin Levitt said. , a professor at Loyola Law School in Los Angeles.

“If the president delivers something that is not plausibly what they asked for, they don’t have to accept it and they don’t have to pass it on to the states,” Levitt said.

The Census Bureau’s announcement of anomalies further highlights concerns about data quality related to the pandemic. The time allotted to correct errors and fill gaps in data collection was cut in half by the federal government’s decision to keep the year-end deadline and adopt Trump’s order on the count.

The Census Bureau also faced difficulties derived from wildfires in the west of the country and hurricanes in the Gulf of Mexico.

There is still the possibility that the Senate will eliminate some concerns by agreeing with the lower house for an extension of the deadline for the delivery of the numbers. When the pandemic spread in the spring, the Census Bureau asked Congress for an extension until the end of April 2021.

The House of Representatives agreed, but the proposal did not advance in the Republican-controlled Senate after Trump issued his order on the count in July.

It’s not impossible for the Senate to approve an extension if the Supreme Court rejects Trump’s plan or the Democrats take over the Senate after the second rounds for two senatorial seats in Georgia in January.

One thing seems likely: The current case will not be the last Supreme Court fight over the 2020 census. Final seat allocation numbers have been frequently disputed in recent decades.

“What would a census be without a lot of litigation?” Said Terri Ann Lowenthal, a former legislative aide who specializes in census matters.

Schneider reported from Orlando, Florida.