Commerce Officials Silent After Supreme Court Blocks Census Question

On April 1—Census Day—top officials from the Census Bureau assured reporters and the public that they would be ready to print the questionnaire for the 2020 big count with or without the Trump administration’s proposed new citizenship question.

Then came Thursday’s blockbuster Supreme Court decision, in which a 5-4 majority temporarily blocked the proposal and sent the Commerce Department back to the drawing board on finding a rationale for adding the controversial question.

The department had claimed that asking respondents whether they are citizens was justified to help enforce the Voting Rights Act. But critics warned it would cause an undercount among Latinos reluctant to participate and hence a back-door route for Republican reapportionment strategists to lower the count of likely Democratic voters.

While Democratic lawmakers and civil rights groups celebrated their apparent victory, officials and spokespersons at both the Census Bureau and its parent agency, the Commerce Department, declined to release any response on how the decision would affect the already-tight production schedule for printing Census forms.

Nor would the Government Publishing Office’s contractor, Chicago-based RR Donnelley, comment.

To complicate things further, President Trump tweeted on Thursday that he has asked lawyers to delay the census, which is required under the Constitution.

Various interest groups expressed skeptcism that Commerce would have time to come up with a new legal rationale, or that the bureau could rejigger its production schedule without harming the long-planned preparations.

“The Constitution requires a decennial census and the Census Act sets the date of the count as April 1, 2020,” said Howard Fienberg, co-director of the nonprofit coalition called Census Project, on Friday. “The Census Bureau says they must begin printing questionnaires by July 1. If printing is to start on time and as the Census Bureau has contracted, it cannot include a citizenship question.”

Any delay, he added, “would undermine the constitutional mandate for fair and equal representation in Congress, be disruptive to markets, hamper community planning, derail business investment, harm economic projections, and weaken the enforcement of civil rights, housing, voting rights and other laws.”  

Dale Ho, director of the Voting Rights Project at the American Civil Liberties Union who argued against adding the question in court, said Thursday in a conference call with reporters that he didn’t think the department and bureau have time to add the question.

“Given how many times they have represented that they need to start printing the forms next week, I think it would be the height of hypocrisy for the administration to try to get more time now,” Ho said, but then added: “I wouldn’t put anything past them.”

Vanita Gupta, president of the Leadership Conference Education Fund, noted that “the Census Bureau has said that they need to print these forms in July and they have already been delayed significantly” because of the court challenges.

John Thompson, the Census Bureau director who retired in June 2017, told Government Executive that while "the bureau has said that they need to start printing next week, any schedule probably has a little bit of slippage that could occur. I don't think they would want to see a lot of slippage, because it will start to cost more money." Added Thompson, who has served as a consultant to some parties in the lawsuits on the citizenship question, "if you compress the timeframe too much, you also risk making mistakes."  

Rep. Elijah Cummings, D-Md., chairman of the Oversight and Reform Committee, said the Supreme Court had “eviscerated” as “contrived” Commerce Secretary Wilbur Ross's claim that the Justice Department had asked him to add the question. Ross made statements before Cummings’s committee justifying adding the citizenship question that have since been challenged. 

“Some have suggested that Secretary Ross could go back and offer other reasons for adding the citizenship question,” Cummings said in a statement. “However, any claim now that the Trump administration had other reasons for adding the citizenship question would directly contradict Secretary Ross’ sworn testimony that helping the Justice Department enforce the Voting Rights Act was the Administration’s sole purpose.”

Sen. Gary Peters, D-Mich., the ranking member of the Homeland Security and Governmental Affairs Committee who has pushed hikes in Census funding, called the Supreme Court’s decision “a step in the right direction to help keep the 2020 Census on track and ensure that every Michigander gets counted.” He said he would “keep pushing the Commerce Department and the Census Bureau to move forward with conducting an accurate and cost-effective count in 2020.”

He and other Democrats last February introduced a bill, the Census IDEA Act (S. 358), to require that proposed changes to the count be “properly studied, researched and tested” by the Census Bureau before being added to the questionnaire.