The Trump administration could still add a citizenship question to the 2020 Census, but it will have to race the clock. And it likely would also have to admit that the move was motivated by racism, legal observers said.
The Supreme Court last week called the administration out on its lie that it wanted to add the citizenship question so that it could better enforce the Fair Elections Act, and ruled that it would need a better excuse.
Moments later, President Donald Trump called the Supreme Court decision “ridiculous,” and said he had asked his lawyers about delaying the Census “no matter how long” it took, so long as he could get the citizenship question inserted.
Seems totally ridiculous that our government, and indeed Country, cannot ask a basic question of Citizenship in a very expensive, detailed and important Census, in this case for 2020. I have asked the lawyers if they can delay the Census, no matter how long, until the…..
— Donald J. Trump (@realDonaldTrump) June 27, 2019
News reports on Tuesday noted that so far, the Trump administration has taken no action to begin the process of printing up the Census forms, despite its earlier insistence that it would have to adhere to a rigid July 1 timetable in order to get all the documents distributed on time.
By law, the U.S. Census Bureau is required to start its decennial count of all persons living in the United States on April 1. The Census, in its more than 200 year old history, has never been delayed.
The Supreme Court in its ruling last week never said that the Trump administration was not allowed to add the citizenship question. It is entirely possible that Census officials could change their argumentation and come up with with a justification for adding the question that would be acceptable for the conservative high court, said Suzanne Almeida, redistricting and representation counsel at Common Cause.
“As long as the administration tells the truth about what the citizenship question is for, there’s a chance it could get on the Census,” Almeida said. “I think at this point, it is a battle of the clock.”
Under its current April 2020 deadline to start the questioning process, the Trump administration doesn’t have much time.
In the past, the bureau has said that it needs to get the printing process started this month, although one senior Census Bureau official estimated the administration could wait until October 31 to start printing the questionnaires. A determination of whether the citizenship question is included would have to be made before then.
New documents uncovered from the files of now deceased GOP gerrymandering mastermind Thomas Hofeller show Commerce Secretary Wilbur Ross and the Trump administration lied that they wanted to add the citizenship question to enforce the Voting Rights Act.
The files, obtained by Common Cause, show Hofeller had previously urged the Trump administration to add the question to the Census, which would “clearly be a disadvantage to the Democrats” and “advantageous to Republicans and Non-Hispanic Whites.”
The moment the Trump administration changes its rationale for adding the question — likely one that admits it is intended to favor Republicans and marginalize Latinos — a number of advocacy groups will sue, Almeida said. And the lower federal courts have blocked many of the administration’s most racist and harmful policy decisions in the past.
Last week, U.S. District Court of Maryland Judge George Hazel wrote in a new filing that the Hofeller files, “potentially connects the dots between a discriminatory purpose—diluting Hispanics’ political power—and Secretary Ross’s decision.”
So in order to add the question, the Trump administration will likely have to go through the U.S. Supreme Court, which is not scheduled to meet again until October.
But Trump says he wants to delay the rollout of the Census to give the Supreme Court time to make a decision. And while delaying the Census is illegal, the administration has a history of disregarding the law and pushing ethical boundaries and so far, Congress has refused to hold it accountable in any sort of meaningful way.
So can the Trump administration add the question?
“Nothing is impossible,” said Almeida. “I think it’s hard but never say never.”