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Undocumented Residents Could Be Excluded From The 2020 Census After All, Thanks To New Supreme Court Case

The drama over the 2020 Census continues.

First, was a Supreme Court decision that found the Trump administration wasn’t being totally honest about it’s reasoning for including the citizenship question on the 2020 Census – so the court effectively removed the question from the census. 

Then, Trump tried to delay the constitutionally mandated census to give his administration more time to come up with a better reason to tell the courts.

None of that worked as planned by the administration, and the Census has continued as normal. However, so many in minority communities – particularly migrant communities – have been fearful of completing this year’s census. Well, a new Supreme Court case could erase all the progress we made to make sure all residents – regardless of immigration status – were fairly counted.

The Supreme Court will hear a case that could allow the Trump Administration to exclude undocumented residents from Census data.

On Friday, the U.S. Supreme Court agreed to hear arguments next month over whether President Trump can exclude undocumented immigrants from the census count used to apportion congressional districts to the 50 states.

The court’s announcement means that the court – which could soon have a 6-3 conservative majority – will hear arguments in the case on November 30.

In July, Trump issued a memorandum asking the Census Bureau to subtract undocumented immigrants from the count for the purposes of congressional apportionment — the reallocation of the nation’s 435 House districts every 10 years. Trump’s memo came after the Supreme Court had rejected his last minute efforts to add a citizenship question to the census.

By the time the high court hears this case, federal Judge Amy Coney Barrett could be confirmed as the ninth justice, cementing a conservative majority. Senate Republicans hope to confirm her nomination to the Supreme Court before the election on Nov. 3.

However, the U.S. Constitution explicitly calls for the counting of all residents within the country.

Credit: Tetra Images / Getty Images

The 14th Amendment requires districts to apportion congressional seats based on “counting the whole number of persons in each State, excluding Indians not taxed.”

Since the first U.S. census in 1790, the numbers of U.S. residents who are counted to determine each state’s share of congressional seats have included both citizens and noncitizens, regardless of immigration status.

“President Trump has repeatedly tried — and failed — to weaponize the census for his attacks on immigrant communities. The Supreme Court rejected his attempt last year and should do so again,” said Dale Ho, a lead plaintiffs’ attorney with the American Civil Liberties Union who successfully argued against the now-blocked citizenship question the administration wanted on the 2020 census forms.

Removing those immigrants from the population counts would shift power to less diverse states. A Pew Research Center study last year found that it could result in House seats that would otherwise be assigned to California, Florida and Texas going instead to Alabama, Minnesota and Ohio — each of which is set to possibly lose a House seat in the next decade due to population shifts.

And drawing new districts within the states based only on the counts of citizens and legal immigrants would likely benefit Republicans, shifting power from cities and immigrant communities to rural parts of the states, which vote for GOP candidates at higher rates

The announcement comes shortly after the court also allowed the Trump Administration to end the Census count early.

Earlier last week, the Supreme Court allowed the Trump administration to stop the census count, blocking lower court orders that directed the count to continue through the end of the month. 

The decision, which the Trump administration favored, came with a candid dissent from Justice Sonia Sotomayor – the court’s only Latina justice.

“Meeting the deadline at the expense of the accuracy of the census is not a cost worth paying,” Sotomayor wrote in her dissent. “Especially when the Government has failed to show why it could not bear the lesser cost of expending more resources to meet the deadline or continuing its prior efforts to seek an extension from Congress. This Court normally does not grant extraordinary relief on such a painfully disproportionate balance of harms.”

But it wasn’t long ago that Trump tried to completely derail this year’s census.

The Trump administration has decided to print the 2020 census forms without a citizenship question, and the printer has been told to start the printing process, Justice Department spokesperson Kelly Laco confirms to NPR.

The move came shortly after the Supreme Court ruled to keep the question off census forms for now and just a day after printing was scheduled to begin for 1.5 billion paper forms, letters, and other mailings.

President Trump had said he wanted to delay the constitutionally mandated headcount to give the Supreme Court a chance to issue a more “decisive” ruling on whether the administration could add the question, “Is this person a citizen of the United States?” A majority of the justices found that the administration’s use of the Voting Rights Act to justify the question “seems to have been contrived.”

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