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Analysis

Four Takeaways from the Supreme Court’s Census Citizenship Question Ruling

The court’s decision was a victory for a fair and inclusive count, but dangers still remain.

A divided Supreme Court ruled last week that the Commerce Depart­ment’s decision to add a citizen­ship ques­tion to the 2020 census viol­ated federal law. The opin­ion delivered a setback to the Trump admin­is­tra­tion’s last-minute attempt to add an untested citizen­ship ques­tion to the census. Here’s what the court said and what it means for the upcom­ing census.

1. The citizen­ship ques­tion is blocked from appear­ing on the 2020 census.

The Supreme Court upheld in part the ruling of a lower federal court barring the ques­tion. In the major­ity opin­ion, Chief Justice John Roberts declared that the Commerce Depart­ment provided a pretextual reason for want­ing the citizen­ship ques­tion that was merely “a distrac­tion,” in viol­a­tion of the legal require­ment that agen­cies disclose the true reas­ons behind their decisions. The case was sent back to the district court for further proceed­ings. Then on Tues­day, the Justice Depart­ment said that the census forms were being prin­ted without the ques­tion, seem­ingly ending the fight over its inclu­sion. But the next day, DOJ reversed itself and said that it would still pursue the case.

2. Block­ing the citizen­ship ques­tion is the right outcome.

Block­ing the citizen­ship ques­tion is the right outcome given the egre­gious facts of this case. But the justices also unfor­tu­nately made many hold­ings that miscon­strue the law. They over­turned much of the lower court’s hold­ing that the Commerce Depart­ment commit­ted a “a verit­able smor­gas­bord” of viol­a­tions under the Admin­is­trat­ive Proced­ure Act, the law that governs how federal agen­cies are allowed to make decisions. The lower court found those viol­a­tions to include, among others, the Commerce Depart­ment’s viol­at­ing provi­sions of the Census Act, ignor­ing uncon­tested evid­ence that the citizen­ship ques­tion will lead to an under­count, and lying about the admin­is­tra­tion’s true reason for want­ing to ask about citizen­ship on the census. The Supreme Court agreed that the admin­is­tra­tion provided a false reason for adding the ques­tion and blocked the ques­tion on that basis alone, but its opin­ion disap­point­ingly sanc­tioned the other flag­rant abuses of power that the Commerce Depart­ment under­took in this case.

3. Even without the citizen­ship ques­tion, the federal govern­ment must make seri­ous efforts to regain public trust in filling out the 2020 census.

Fear and mistrust of the federal govern­ment remain at an all-time high. Discus­sion of the citizen­ship ques­tion has exacer­bated fears of filling out the census, partic­u­larly among immig­rants and people of color. Experts predicted that the ques­tion would have caused almost 9 million people not to complete their census forms.

While the citizen­ship ques­tion cannot now appear on the 2020 census, the threat of the ques­tion ampli­fied long-running fears of inter­act­ing with the federal govern­ment. A recent Census Bureau study revealed that nearly half of the study’s parti­cipants expressed some level of concern about the confid­en­ti­al­ity of their census responses. What’s more, almost one quarter of parti­cipants were “extremely concerned” or “very concerned” that their responses would be used against them.  

Given these concerns, the federal govern­ment must now do everything it can to reduce fears about respond­ing to the census. For instance, it must double down on its commit­ment to follow­ing the laws that protect the confid­en­ti­al­ity of census responses. Those laws are iron­clad: census responses must remain confid­en­tial and cannot be used against you in any way. The admin­is­tra­tion should broad­cast its commit­ment to follow­ing them across the coun­try.

4. Other chal­lenges to the 2020 census still loom.

The citizen­ship ques­tion was not the only threat to the 2020 census. Although this week’s decision removed one of the greatest dangers, the census is still considered a “high risk program” accord­ing to the most recent report by the Govern­ment Account­ab­il­ity Office.

The 2020 census is the first that will be conduc­ted primar­ily online. Concerns about cyber­se­cur­ity persist, as do concerns over the digital divide — the gap between those with reli­able access to the inter­net, and those with little-to-no access. Outreach to communit­ies that lack inter­net access will be of para­mount import­ance if the 2020 census is to proceed smoothly. Moreover, the confid­en­ti­al­ity concerns discussed above persist. And the Census Bureau is not on course to hire the number of tempor­ary work­ers it will need to go door-to-door in order to count the people living in house­holds that do not respond to the census after receiv­ing their census forms in the mail.

Advoc­ates need to continue pres­sur­ing the admin­is­tra­tion to get the census back on track. Congress will need to engage in heavy over­sight of the Census Bureau. And states and local govern­ments can step up efforts to ensure their resid­ents get coun­ted. In short, the bureau may still have a lot of work to do to ensure a fair and accur­ate 2020 census, but every­one must do their part to mobil­ize the count.

(Image: CSA Images/Black­wa­ter­Im­ages/BCJ)