The U.S. Supreme Court may not decide the fate of the presidential election, but it will take up a case Monday that could fashion what the House of Representatives looks like over the next 10 years, when it hears arguments on President Trump’s latest attempt to shape the census.
Mr. Trump has sought to subtract illegal immigrants out of the count of Americans that’s used to divvy up House seats among the states. A series of lower courts have ruled that illegal, and the justices will now have their say.
Voting-rights advocates say the case should be a slam dunk rejection of Mr. Trump, just as the lower judges have done.
“The legal mandate is clear — every single person counts in the census, and every single person is represented in Congress,” said Dale Ho, director of the American Civil Liberties Union’s voting rights project.
The administration, though, says the law is not so clear, and Congress has left the president with discretion to shape the count he provides to lawmakers that’s used to apportion the seats.
Besides, the challenge is premature, wrote acting Solicitor General Jefrey B. Wall. He said the Census Bureau is still trying to figure out how many illegal aliens it can identify and exclude, which makes all the complaints about changing apportionment speculative.
“The court can decide these questions after apportionment, if they even arise,” Mr. Wall wrote in the government’s final brief before Monday’s hearing.
The 2020 census count ended Oct. 15, though several attempts are in the works to restart it, given questions about whether the coronavirus pandemic caused too many people to be missed.
Mr. Trump, in an executive order over the summer, ordered the Census Bureau to produce two numbers out of the count.
The first is the usual count of all residents. For the second, he asked the bureau to try to subtract out illegal immigrants, and he wants that to be the number submitted to Congress for apportionment of the House’s 435 seats.
Even if Mr. Trump prevails legally, it’s not clear what the Census Bureau will produce. Figuring out how to exclude illegal immigrants is tricky.
The government said in its legal briefs that it will try to use other government data to exclude people.
It will be relatively easy to subtract out people who were being detained by U.S. Immigration and Customs Enforcement on April 1, which was the day the census is pegged to. But that’s only a few tens of thousands. Getting at the more than 10 million others believed to be in the U.S. is more trouble.
Conservatives have long complained about counting illegal immigrants when divvying up House seats, saying it gives more political power to illegal immigrant-friendly states, at the expense of others.
The Center for Immigration Studies, for example, calculates that three seats would shift depending on whether the estimated 11 million illegal immigrants are excluded. If counted, California, Texas and New York would end up with the seats. If excluded, those seats would go to Ohio, Alabama and Minnesota.
It may be that the entire issue gets taken out of Mr. Trump’s hands.
Census officials are wondering whether they’ll be able to firm up a count by the end of the year or early January. Should that date slip past Jan. 20, it would be presumed President-elect Joseph R. Biden in charge, and he could squelch the extra count.
Mr. Trump saw a previous attempt to shape the census swatted down by the justices last year. In that case, he had tried to shoehorn a question about citizenship into the 2020 count.
Led by Chief Justice John G. Roberts Jr., the court in a 5-4 ruling said that while the administration has the power to ask about citizenship on the census — indeed, it was done up until 1950 on the full count and is still done on smaller census surveys — the president’s team bungled the process.
But the justices did step in earlier this fall to side with the administration on the timing of completing this year’s census count. A lower court judge had ordered the counting to continue through the end of October, a month longer than the law says, in order to make up for a coronavirus pause in counting earlier this year. The Supreme Court lifted that order, allowing the in-person count to stop Oct. 15.