In a 5-4 ruling Thursday, the U.S. Supreme Court blocked a citizenship question, for now, from appearing on the 2020 Census, sending the case back to a lower court.
Chief Justice John Roberts, writing for the majority, said the reason offered by the Trump administration for adding the question — "Is this person a citizen of the United States?"— was not sufficient. However, Roberts left open the possibility that it could provide a reasonable answer.
“The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public,” Roberts wrote. “Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.
In a statement, the U.S. Census Bureau said the “decision is currently being reviewed.”
Karen Menéndez Coller, executive director of Centro Hispano of Dane County, said she was excited to hear that the question would not be on the 2020 Census, calling it a “win for our community.” She plans to be involved in outreach to ensure an accurate count in Dane County.
“I am super interested in making sure everybody is counted as much as possible,” Menéndez Coller said.
Erin Barbato, director of the Immigration Law Center, said Census Bureau research showing that including the citizenship question in the census would result in an undercount for households with noncitizens is consistent with the experiences of her clients' apprehension toward this kind of interaction with the federal government.
"If the goal is an accurate count of people in the country, the court's decision should help that occur," Barbato said.
Dane County Immigration Affairs Specialist Fabiola Hamdan said the lack of a citizenship question will create an opportunity for a more accurate account. She said that public outreach, including on the Spanish language radio station La Movida, will be crucial.
“We need to do a mass community education about that because we know from previous instances that especially the Latino community has been undercounted,” Hamdan said. “I think now it is up to people who are working on the census to do a really good campaign.”
However, the victory may be temporary.
Though UW-Madison assistant professor of law Robert Yablon called the ruling a "pleasant surprise" for plaintiffs," he said "more fighting" is ahead.
"There remains a real possibility that the government will end up producing reasons that are, at least for the Supreme Court, satisfactory and that it will at the end of the day be able to ask the question."
The decision is remanded to the Department of Commerce, which gives it a chance to offer more sound justifications for the citizenship question. But there is a time crunch. The Census Bureau needs to print paper census questionnaires and other materials like invitations letters and reminder postcards shortly.
Additionally, other litigation is ongoing in a separate court regarding the citizenship question and whether asking it violates the equal protection clause of the Constitution. Depending on that ruling, there may be a request for the Supreme Court to get involved again, Yablon said.
"This is by no means over," Yablon said.
The complicated decision comes more than a year after Commerce Secretary Wilbur Ross, who oversees the Census Bureau, approved adding the citizenship question over expert advice from the Census Bureau.
The administration’s reason for adding the question was to help ensure the 1965 Voting Rights Act, which aims to protect minority voters. However, that reasoning has been questioned by three federal judges.
In the Supreme Court ruling, the majority said it "cannot ignore the disconnect between the decision made and the explanation given" by the Trump administration.
Emails from Thomas Hofeller, a Republican strategist, who died last summer, contained evidence that he said adding a citizenship question would give Republicans an advantage in drawing new legislative district lines.
Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined the key part of Roberts’ opinion. Justice Clarence Thomas dissented, with Justices Neil Gorsuch and Brett Kavanaugh joining.
Justice Samuel Alito filed his own partial dissent,
“To put the point bluntly, the Federal Judiciary has no authority to stick its nose into the question whether it is good policy to include a citizenship question on the census or whether the reasons given by Secretary Ross for that decision were his only reasons or his real reasons,” Alito said.
Challengers say that a citizenship question would intimidate noncitizens, whether they are in the country legally or not, from filling out the census. This could lead to a large undercount, which would affect how federal funding is allocated and how political power is distributed over the next 10 years.
Menéndez Coller said oftentimes the Latino community is not represented in data and that ethnicity is not an option in determining some Dane County programming.
“It could really be a game changer when it comes to services in the community,” Menéndez Coller said. “When the census may highlight some of the accurate counts in the community, I think that would be great.”
The most recent Census Bureau research from June found that the citizenship question will likely reduce responses by 8%, a rate higher than previously estimated for U.S. households with noncitizens. The previously estimated rate was 5.8%.
"We do need to continue to consider the potential effects on the community, which would be a result of an undercount diluting the goals of the census and representation," Barbato said.
Barbato said removing the citizenship question is critical to an accurate count.
"I am unsure anything short of not including the question could prevent the undercount," Barbato said.
The 2020 population numbers affect the number of congressional seats and Electoral College votes each state gets. They will determine the drawing of both congressional and local voting districts.
The census will also determine how an estimated $880 billion a year in federal funding is distributed for public services, like schools and roads.