Imagine if Montana, Rhode Island, Delaware, Alaska, Vermont, Wyoming and both Dakotas all lost their seats in the House of Representatives. Would that be constitutional?
The Supreme Court will hear arguments Tuesday in a case that will determine if at least 6.5 million people — the combined population of those eight states — lose congressional representation (and a honeypot of federal funding for their communities) during the next decade.
That's a "conservative" estimate of the number of people who will fail to respond to the 2020 Census if it asks them to reveal whether they are citizens, the Census Bureau says.
Last spring, Commerce Secretary Wilbur Ross, whose department oversees the Census Bureau, announced his plan to ask each person their citizenship status on the next census. States, cities, counties and nonprofits sued to ban the question and won in federal district court. The Commerce Department wants the justices to reverse that decision.
The government is ready to roll the presses on more than a hundred million census forms as soon as the court rules, by June. It's the most consequential case this term in the eyes of "good government" activists, just ahead of the cases about the constitutionality of political gerrymandering.
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Transcripts in Department of Commerce v. New York will be released later Tuesday, and an audio tape by the end of the week. Here are things to watch during the hour the justices spend in public discussing the case, starting at 10 a.m.
What say you Roberts, Kavanaugh and Alito?
Justices Neil Gorsuch and Clarence Thomas have no problem with Ross' decision.
"Most censuses in our history have asked about citizenship," Gorsuch wrote in dissent to the Supreme Court's decision last year permitting the lawsuit to move forward. Thomas joined in the dissent.
The court's four liberals — each of whom dissented from the conservative majority decision in Shelby County v. Holder, which effectively ended federal oversight of changes in state election laws that had protected voter discrimination since the 1960s — aren't likely to be sympathetic to Ross.
So, the ruling will likely come down to the court's other conservatives — Chief Justice John Roberts and Justices Brett Kavanaugh and Samuel Alito. Last June, Roberts and Alito upheld the Trump administration's controversial travel ban, citing the president's legal authority to restrict entry into the United States. The Commerce Department has broad discretion to tinker with census wording. Will these justices again defer to the prerogatives of the executive branch?
Will anyone acknowledge the obvious? This is all about politics.
Who supports the citizenship question? The Republican Party.
If you believe this is all politically motivated and you want a smoking gun, here it is: The Republican National Committee and the National Republican Congressional Committee filed a joint brief in support of Ross' decision.
The RNC and NRCC are two of the party's three main fundraising arms tasked with electing Republicans to Congress. The NRCC raises money specifically for House candidates.
The Constitution mandates a census every 10 years, and those population counts are used to allocate House seats as well as billions in federal funds among the states.
If the Census Bureau is correct, states and communities with a significant number of Hispanic voters will lose congressional representation if the citizenship question is asked. That would be good news for the Republican Party, which lost its House majority in November in part to an ever-increasing Latino vote.
Hispanics constitute the fastest-growing minority voting group, and nearly 70 percent of Latinos voted for Democratic candidates in 2018 congressional races, according to the Pew Research Center.
It's worth noting the GOP's other major fundraising arm — the National Republican Senatorial Committee, which raises money for Senate candidates — didn't bother to cosign the brief. After all, each state gets two senators regardless of the inaccuracy of census data.
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