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Supreme Court To Hear Controversial Census Citizenship Question


Once every 10 years, the federal government undertakes a massive counting exercise in the form of a census. Every household is supposed to fill out a form answering basic questions about who lives there - the residents' age, sex, race, ethnicity, whether or not they rent or own, how they're related. And now, for the first time in 70 years, the Trump administration wants to ask every household the following - is this person a citizen of the United States? Today the U.S. Supreme Court hears arguments in a case testing whether that question is legal or even constitutional. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: The Founding Fathers actually put the census into the Constitution. They wanted a total count of U.S. residents. And they wanted a count that couldn't be fiddled with because the data would determine for a decade how many seats each state gets in the U.S. House of Representatives, how many Electoral College votes each state gets in presidential elections. And today the census data also determines how, essentially on a per capita basis, some $900 billion in federal money is allocated all over the country for roads, schools, hospitals, health care and more.

HERMANN HABERMANN: This is not benign information. People's lives are going to be affected by it.

TOTENBERG: That's former deputy census director Hermann Habermann. Because getting an accurate count of the population is so important, the Census Bureau has been considered the gold standard of professionalism. And administrations, Democratic and Republican, have long followed the bureau's expert advice about how to count the population - not so the Trump administration. Instead, last year, Commerce Secretary Wilbur Ross overruled the unanimous advice of statisticians and scientists at the Census Bureau and decided to add a citizenship question.


WILBUR ROSS: We evaluated thousands of pages of analysis.

TOTENBERG: Ross testified repeatedly before Congress that he added the question only because the Justice Department wanted it on the census forms.


ROSS: DOJ sought census citizenship data for use in Voting Rights Act enforcement.

ANDREW PINCUS: We've had the Voting Rights Act for 50 years. And for its entire life, this data has not been available and the Voting Rights Act has been enforced.

TOTENBERG: Andrew Pincus represents former census directors who've filed a brief in the Supreme Court. Six former census directors have warned that adding the citizenship question would jeopardize the accuracy of the population count. Andy Pincus.

PINCUS: The government's own experts at the Census Bureau said this will produce an undercount and an undercount that won't be even across all segments of the population and all geographic areas.

TOTENBERG: Census Bureau research shows that the question would conservatively produce an undercount of 6.5 million people, mainly in urban areas where immigrant groups live, while leaving rural, mainly white areas unaffected. The bureau's research has long shown that the citizenship question often leads people in immigrant households - even those who are citizens - to simply not fill out the census form. Steven Murdock served as census director in the George W. Bush administration.

STEVEN MURDOCK: You're going to be punishing jurisdictions who happen to be in areas that end up with larger numbers of undocumented citizens.

TOTENBERG: Hermann Habermann served in the bureau in the early 2000s.

HABERMANN: The issue isn't whether or not the administration or the United States has a right to know how many citizens that are there. The issue is, what's the best way to get that piece of information so that you do not harm the census?

TOTENBERG: That's why, under Census Bureau quality standards, the addition of any new question is supposed to be pretested under an elaborate three-year protocol. Secretary Ross, however, ignored that requirement. So last year, dozens of states, counties and cities went to court to prevent this citizenship question from being added to the census.

After a trial in New York, a federal judge found that Secretary Ross' stated reasons for adding the question were, quote, "pretextual" - in short, a sham. The judge found that Ross violated a variety of statutes and rules to reach his desired conclusion. The litigation uncovered emails from Ross showing that the idea for this citizenship question began not in the Justice Department, as he testified, but in discussions between Ross and top White House political aides, including Steve Bannon.

The emails show that despite repeated entreaties, Justice Department officials refused to ask for the addition of the question, saying it was unnecessary and that Ross, after a visit to Mar-a-Lago in late 2017, finally got the request letter he wanted. The Trump administration argues there's nothing remarkable about adding the citizenship question, that it is just restoring a type of question last asked in 1950. The administration has the support of 17 Republican-controlled states, among them Oklahoma and its solicitor general Mithun Mansinghani.

MITHUN MANSINGHANI: The citizenship question has been asked throughout U.S. history. It has been asked to Americans over a billion times.

MARGO ANDERSON: That's not very good history.

TOTENBERG: Margo Anderson is perhaps the leading census historian in the country.

ANDERSON: We've never asked it of everyone in any kind of universal way.

TOTENBERG: The question was dropped after 1950, in part because Census Bureau research showed it fostered an undercount. Secretary Ross reads the data differently, says Oklahoma's Mansinghani. More importantly, he observes, the Trump administration argues that the courts don't have the authority to second-guess the secretary's decision.

MANSINGHANI: So the question is - did the secretary have the discretion to weigh the costs and benefits between asking a citizenship question and not asking one? And the department maintains that he does have that discretion.

LETITIA JAMES: He doesn't have unlimited discretion.

TOTENBERG: New York Attorney General Letitia James.

JAMES: He has a constitutional and a statutory obligation to pursue an accurate count. And the record is clear that by including the citizenship question, it would result in an inaccurate count, and it will have a major impact on federal funding to New York state.

TOTENBERG: The Trump administration contends that all it has to show is that the secretary made a rational decision. The lower courts found that the decision, in fact, was not rational but a pretext and that it was arbitrary. Now the Supreme Court must decide.

Nina Totenberg, NPR News, Washington.

[POST-BROADCAST CLARIFICATION: In this story, we said 1950 was the last time a citizenship question was asked for the U.S. census. It would have been more accurate to say the 1950 census was the last time a question about citizenship was among the census questions for all households, although the question was asked only of people born outside the United States. In some later censuses, a sample of households were asked a citizenship question.]

(SOUNDBITE OF TINGVALL TRIO'S "VAGEN") Transcript provided by NPR, Copyright NPR.

Corrected: May 21, 2019 at 12:00 AM EDT
In this story, we said 1950 was the last time a citizenship question was asked for the U.S. census. It would have been more accurate to say the 1950 census was the last time a question about citizenship was among the census questions for all households, although the question was asked only of people born outside the United States. In some later censuses, a sample of households were asked a citizenship question.

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