The Supreme Court, Census Citizenship Question, and Voter Suppression

This last post in a series of posts on the census divides into two parts. This post, Part A, focuses on the key points made by the majority and minority opinions on the census and citizenship question. The excerpts from the Court’s opinions provide the basis for the next, part B. Part B examines the contexts of the Constitution’s Enumeration Clause opinions and the Administrative Procedure Act opinions of the justices. It ends with commentary on these two issues, connecting them to voter suppression. Voter suppression is the main theme running through this series of posts on the census.

Part A

The Supreme Court’s decision on the 2020 Census illustrates the deep and partisan divide on the Court. In my layman’s interpretation, the rationales behind the various positions taken by Court members show either a simplistic partisan divide or significant differences in how justices think about the same facts.

Background

The Supreme Court reviewed the Federal District Court of New York’s decision on the citizenship question. The District Court consolidated two separate suits. A group of states, counties, and cities filed one suit. The respondents argued that Commerce Secretary Ross’s decision violated the Enumeration Clause of the Constitution and the requirements of the Administrative Procedure Act. Non-governmental organizations filed the second suit arguing in addition that the Secretary’s decision violated the Equal Protection Clause of the Constitution. The District Court dismissed the Enumeration Clause but allowed the other claims to proceed.

The Federal District Court for Northern California also combined several suits, but the decision of this court in many but not all ways paralleled the New York District Court. The major difference being that the California District Court found that the Secretary’s decision to add the citizenship question violated the Enumeration Clause of the Constitution. However, the Supreme Court did not review the California district court case. A point that Part B will later make is that the Department’s administrative record mischaracterized the history of the citizenship question in the census. Both the New York court and the Supreme Court accepted at face value the Department’s historical review of the census and the citizenship issue.

In June 2018, the government submitted the Department’s administrative record, the materials Secretary Ross considered in his decision making. This included the DOJ’s letter requesting reinstatement of the citizenship question. A bit later, the Department, at DOJ’s urging, supplemented the record with a new memo from Ross that stated he had begun considering in early 2017 the addition of a citizenship question and had asked whether DOJ would formally request its inclusion.

At this point, the respondents argued that the supplemental memo indicated that the administrative record was incomplete. They asked the court to compel the government to complete the record. The court granted the request. This resulted in the addition of about 12,000 pages to the administrative record. The court also authorized discovery outside the administrative record, including requiring a deposition from Secretary Ross, which the court stayed pending further review.
The court ruled that the Secretary’s action was arbitrary and capricious, was based on a pretextual rationale (in other words, that the Secretary’s stated rationale for adding the citizenship question was not the real rationale) and violated the Census Act. The court also ruled the respondents had failed to show an equal protection violation.

Supreme Court’s Opinions

Pretextual Rationale

On a 5 to 4 vote (Chief Justice Roberts plus the four liberal members of the Court) agreed with the New York District Court’s finding that the Secretary’s decision was pretextual. In Roberts’ words, “. . . viewing the evidence as a whole, we share the District Court’s conviction that the decision to reinstate a citizenship question cannot be adequately explained in terms of DOJ’s request for improved citizenship data to better enforce the VRA” [Voting Rights Act]. After specifying the specific points of mismatch between the decision and the rationale, Roberts goes on to say, “. . . the VRA enforcement rationale – the sole stated reason – seems to be contrived.”

In conclusion, Roberts states “We do not hold that the agency decision here was substantially invalid. But agencies must pursue their goals reasonably. Reasoned decision making under the Administrative Procedures Act call for an explanation for agency action. What was provided was more of a distraction.”

Enumeration Clause

On a 9-0 vote, the Court ruled that the “Enumeration Clause of the Constitution does not provide a basis to set aside the Secretary’s decision. The text of that clause says,” The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.” An earlier decision of the Court (Wisconsin v. City of New York et al., 1996) determined that the clause “vests Congress with virtually unlimited discretion in conducting the decennial census” and that Congress “has delegated its broad authority over the census to the Secretary” through the Census Act as amended in 1976.

The Court’s decision further said, “Yet demographic questions have been asked in every census since 1790 and questions about citizenship in particular have been asked for nearly as long. Like the District Court, we decline the respondents’ invitation to measure the constitutionality of the citizenship question by a standard that would seem to render every census since 1790 unconstitutional.”

Reviewable under Administrative Procedure Act

The Court agreed on a 7-2 vote that the Secretary’s decision on the citizenship question was reviewable under the APA. Justices Gorsuch and Alito dissented.

The government had claimed the Census Act gives the Secretary unreviewable discretion about what questions to include on the decennial census questionnaire. However, the Court determined that the taking of the census is not one of the areas traditionally committed to agency discretion. The Secretary’s decision, said the Court, is amenable to review for compliance with the Census Act according to the general requirements of reasoned agency decision making.

Was the Secretary’s decision arbitrary and capricious under the APA

On a 5-4 vote, the Court determined the Secretary’s decision to add the citizenship question was not arbitrary and capricious. The five conservatives on the Court agreed to this position while the four liberal justices dissented.

The Court took a narrow review of this question and sought to determine “only whether the Secretary examined ‘the relevant data’ and articulated ‘a satisfactory explanation’ for his decision, ‘including a rational connection between the facts found and the choice made.'” The Court further said that “We may not substitute our judgement for that of the Secretary but instead must confine ourselves to ensuring that he remained ‘within the bounds of reasoned decision making.'” Here, the Court referenced a 1983 case, Baltimore Gas and Electric Co. v. Natural Resources Defense Fund.

The Court said the evidence before the Secretary supported his decision to supplement the citizenship question on the census with administrative record data. The Court pointed out that the Census Bureau was not able to “quantify the relative magnitude of the errors across the alternatives” presented to the Secretary. The Census Bureau determined with “high confidence” that it could develop an accurate model for estimating the citizenship for the 35 million people for whom administrative records were not available. However, the Court said, “when it came time for the Secretary to make a decision, the model did not yet exist, and even if it had, there was no way to gauge its relative accuracy.”

The Court noted that the District Court agreed “with the Bureau’s assessment that its recommended approach would yield higher quality citizenship data on the whole. But the choice between reasonable policy alternatives in the face of uncertainty was the Secretary’s to make . . .. In overriding that reasonable exercise of discretion, the court improperly substituted its judgment for that of the agency.”

In concluding, the Court said that “It is not for us to ask whether his [the Secretary’s] decision was ‘the best possible’ or even whether it was ‘better than the alternatives.'” “By second-guessing the Secretary’s weighing of risks and benefits and penalizing him for departing from the Bureau’s inferences and assumptions, Justice Breyer [who wrote the dissent for the four liberal justices] – like the District Court – substitutes his judgment for that of the agency.”

Did the Secretary violate provisions of the Census Act

With the five conservative justices concurring, the Court ruled on a 5-4 vote that the Secretary did not violate two provisions of the Census Act. One of the provisions requires the Secretary to use data from administrative records rather than using direct inquiries. The Court determined that this provision referred only to “particular kinds of statistics that other provisions of the Census Act actually do require the Secretary to collect and publish.”

The second provision requires the Secretary to submit three reports to Congress regarding each decennial census. The first report is to be submitted to Congress at least three years before the census date. The report must contain the Secretary’s “‘determination of the subjects to be included, and the types of information to be compiled.'” The Secretary submitted in March 2017 this report to Congress. The report did not mention citizenship. The second report is to be submitted at least two years before the census date. This report must contain the Secretary’s “‘determination of the questions proposed to be included’ in the census.” The Secretary submitted this report in March 2018, and it did propose asking a citizenship question.

The District Court held that the Secretary’s first report violated the provision of the Census Act. The Court determined that the Secretary’s second report satisfied the Census Act requirements. It determined this because the Act requires a third report that is to be filed after the first two reports. This report is to be submitted to Congress before the census date if the Secretary finds new circumstances that necessitate a modification in the subject, information, or questions.

In other words, by informing Congress in his second report that the Secretary was including a citizenship question he “necessarily also informed Congress that he proposed to modify the original list of subjects submitted in the March 2017 report. Nothing suggests that the same report cannot simultaneously fulfill the requirements of reports two and three.

Dissenting Opinions – Conservative Justices

Justice Alito

Justice Alito concluded: “Whether to put a citizenship question on the 2020 census questionnaire is a question that is committed by law to the discretion of the Secretary of Commerce and is therefore exempt from APA review. The District Court had the authority to decide respondents’ constitutional claims, but the remainder of their complaint should have been dismissed.”

In other words, once the District Court found the Constitution’s Enumeration Clause had not been violated federal judicial proceedings should have ended.

In explaining his opinion, Alito noted that “Asking about citizenship on the census also has a rich history in our country.” He went on to say, “We are confronted with a practice that reaches back two centuries. The very first census went beyond a mere head count and gathered additional demographic information, and during virtually the entire period prior to the enactment of the APA [1946], a citizenship question was asked for everyone. Notably absent from that long record is any practice of judicial review of the content of the census. Indeed, this Court has never before encountered a direct challenge to a census question.”

Alito further commented “[T]he Federal Judiciary has no authority to stick its nose into the question whether it is good policy to include a citizenship question on the census or whether the reasons given by Secretary Ross for that decision were his only reasons or his real reasons. . . . [W}e have no authority to decide whether the Secretary’s decision was rendered in compliance with the Administrative Procedure Act. . . . [T]he decision of the Secretary of Commerce to add core demographic questions to the decennial census questionnaire is committed to agency discretion by law and therefore may not be challenged under the APA. . . . [W]hen an action ‘is committed to agency discretion by law,’ the Judiciary has no role to play even when an agency sets forth ‘an eminently reviewable’ proposition.”

Justice Thomas

Justice Thomas wrote a dissenting opinion in which he was joined by Justices Gorsuch and Kavanaugh. The opinion’s conclusion can be stated as “Our only role in this case is to decide whether the Secretary complied with the law and gave a reasoned explanation for his decision. The Court correctly answers these questions in the affirmative. That ought to end our inquiry.”

Like the majority’s opinion and Justice Alito’s dissent, Justice Thomas’s dissent refers to the history of the census: “[B]etween 1820 and 2010, every decennial census questionnaire but one asked some segment of the population a question related to citizenship. The 2010 census was the first since 1840 that did not include any such question.”

Justice Thomas’s dissent focused on the pretextual basis for the Court’s finding. He states, “If an agency’s stated findings and conclusions withstand scrutiny, the APA does not permit a court to set aside the decision solely because the agency had ‘other unstated reasons’ for its decision, such as ‘political considerations’ or the ‘Administration’s priorities. Unsurprisingly, then, this Court has never held an agency decision arbitrary and capricious on the ground that its supporting rationale was ‘pretextual.’ Nor has it previously suggested that this was even a possibility. . . . [A]n agency action is not arbitrary, or capricious merely because the decisionmaker has other, unstated reasons for the decision. Nor is an agency action arbitrary and capricious merely because the decisionmaker has ‘inclined’ to accomplish it before confirming that the law and facts supported the inclination.”

In closing, I add a substantive point made by Justice Thomas. He makes the point that the “evidence fails to make a strong showing of bad or improper behavior. . . . [I]t proves at most that the Secretary was predisposed to add a citizenship question to the census and took steps to achieve that end before settling on the VRA rationale he included in his memorandum. Perhaps he had reasons for adding the citizenship question other than the VRA, but by the Court’s own telling, that does not amount to evidence of bad faith or improper behavior.”

Dissenting Opinion – Liberal Justices

Justice Breyer wrote the dissent for Justices Ginsburg, Sotomayor, Kagan, and himself. The dissenting opinion states that the “Secretary’s decision to add the citizenship question was arbitrary and capricious and therefore violated the Administrative Procedure Act.”

Justice Breyer first makes a statement about the Constitution’s Enumeration Clause. “There is no serious dispute that adding a citizenship question would diminish the accuracy of the enumeration of the population – the sole constitutional function of the census and a task of great practical importance. The record demonstrates that the question would likely cause a disproportionate number of noncitizens and Hispanics to go uncounted in the upcoming census. That, in turn, would create a risk that some States would wrongfully lose a congressional representative and funding for a host of federal programs. And, the Secretary was told, the adverse consequences would fall most heavily on minority communities. The Secretary decided to ask the question anyway, citing a need for more accurate citizenship data. But the evidence indicated that asking the question would produce citizenship data that is less accurate, not more. And the reason the Secretary gave for needing better citizenship data in the first place – to help enforce the Voting Rights Act of 1965 – was not convincing.

“In short, the Secretary’s decision to add a citizenship question created a severe risk of harmful consequences, yet he did not adequately consider whether the was necessary or whether it was an appropriate means of achieving his stated goal. The Secretary thus failed to ‘articulate a satisfactory explanation’ for his decision, ‘failed to consider . . . important aspects[s] fo the problem,’ and ‘offered no explanation for [his] decision that runs counter to evidence,’ all in violation of the APA. These failures, in my view, risked undermining public confidence in the integrity of our democratic system itself. I would therefore hold that the Secretary’s decision – whether pretextual or not – was arbitrary, capricious, and an abuse of discretion.”

Justice Breyer further stated [t]he Enumeration Clause, the Census Act, and the nature of the risks created by the agency’s decision all make clear that the decision before us is highly important to the proper functioning of our democratic system. It is therefore particularly important that courts here not overlook an agency’s (1) failure to consider serious risks of harm, (2) failure to explain its refusal to minimize those risks, or (3) failure to link its conclusion to available evidence. My view, like that of the District Court, is that the agency here failed on all three counts.”

Much of Justice Breyer’s dissent goes into detail regarding the issues posed to the Secretary by the professional-technical staff of the Census Bureau. It is impossible to summarize these issues, but I will provide two examples.

First, “Putting numbers upon these study results, the Census Bureau estimated that adding the question to the short form would lead to 630,000 [later raised to 718,000] additional nonresponding households. That is to say, the question would cause households covering more than 1 million additional people to decline to respond to the census . . . . The Bureau thus explained that the lower self-response rates ‘degrade data quality’ by increasing the risk of error and leading to hundreds of thousands of fewer correct enumerations…..  [T]he consequences of mistakes in the census count, of even a few hundred thousand, are grave. Differences of a few thousand people, as between one State and another, can mean a loss or gain of a congressional seat.”

Second, as already noted the Secretary’s only rationale for adding the citizenship question was that the data gathered would allow DOJ to better enforce the Voting Rights Act protections for minority voters. Justice Breyer states, “This rationale is difficult to accept. One obvious problem is that the DOJ provided no basis to believe that more precise data would, in fact, help with Voting Rights Act enforcement.” Since 1965 “actions to enforce the Act have therefore always used citizenship data derived from the sampling. Yet I am aware of no one – not in the Department of Commerce proceeding in the District Court or in this Court – who has provided a single example in which enforcement of the Act has suffered due to lack of more precise citizenship data. Organizations with expertise in this area tell us that asking the citizenship question will not help enforce the Act. . . . Rather, the question will, by depressing the count of minority groups, hurt those whom the Act seeks to help.”