The President is pushing for the addition of a question about citizenship status to the decennial population survey, while the Supreme Court ruled last week the government had not adequately justified adding the question and blocked it from appearing for now.
After previously arguing that delays beyond July 1 would incur extra costs, the government instead on Monday asked a Maryland court for extra time to determine how to respond to the Supreme Court ruling.
The government is now due to lay out its approach in a hearing Tuesday afternoon.
Among the government’s options: To conduct the census without the controversial question, or to rewrite its justification for the question and seek judicial approval to ask it. Continued litigation of the issue could take months, and would likely return to the Supreme Court.
Speaking at the White House on Monday, Trump repeated an earlier pledge to consider delaying the count.
“We’re looking at that very strongly,” he said.
Trump cited the census’ key role in determining how government resources are spent.
“I think it’s very important to find out if somebody is a citizen as opposed to an illegal,” he said. “I think there’s a big difference, to me, between being a citizen of the United States and being an illegal.”
Trump also said last week he was looking at pushing a delay in the population count.
“I have asked the lawyers if they can delay the Census, no matter how long, until the United States Supreme Court is given additional information from which it can make a final and decisive decision on this very critical matter,” he wrote on Twitter.
The missed deadline is significant because the government had told the courts that time was of the essence to render their rulings. The printing company needed to know by July 1 which version of the census form to use – the one with the citizenship question or the one without.
“We have film that will be prepared for our printer for either decision,” associate census director Al Fontenot explained in April. “When the July 1 deadline comes, for us, we say run film A or run film B.”
Any delay “jeopardizes that schedule,” Solicitor General Noel Francisco wrote in a letter to the Supreme Court last week. Although this census is the first where officials are encouraging most households to answer online, the bureau still expects many to reply on paper, requiring the government to print hundreds of millions of forms, postcards and other documents to be mailed and delivered to households around the US next year.
Commerce Secretary Wilbur Ross’ decision to add the question sparked a fight over the decennial count, which is used to determine representation in Congress and which local governments receive federal funds. Trump said the citizenship question is a natural part of counting the population, but critics have said it will deter minority groups and noncitizens from responding.
Critics challenged Ross’ claim that the Justice Department needs citizenship data to enforce voting protections, noting he personally asked the attorney general to request the question. Both critics and the Census Bureau’s own experts believe the question will depress responses from minority groups including noncitizens.
In its decision, the Supreme Court left the door open to the government offering a different justification for the question.
Federal law sets constraints on when the decennial count of the country’s population will be taken. April 1, 2020, is the official census day, although counting is set to begin as early as January in some areas, and the law requires the tally that is used to draw legislative districts “shall be completed within 9 months,” meaning by the end of 2020.
In a New York courtroom last fall, the Census Bureau’s chief scientist, John Abowd, answered yes when asked if the latest the bureau “can lock down the content of the census questionnaire” was the end of June, unless it receives “exceptional resources,” in which case the government has until October 31.
Prior to the Supreme Court’s decision in late June, the government pointed to the fast-approaching July regular printing deadline, while the challengers urged the courts to look at the October date as the real deadline.
One of the attorneys challenging the case in the New York court told reporters it would be hypocritical for the government to change course after the decision while it figures out how to preserve the question.
“I think the government has repeatedly said in its response to our filings that they intend to start printing on Monday, next week, so I think there really, really is not time and if the administration tries to rush it, that’s a clear red flag,” said Dale Ho, an attorney with the American Civil Liberties Union.
The separate case in Maryland has played out parallel to the New York case that went to the Supreme Court. Challengers there had asked the judge to consider new evidence, including an unpublished 2015 study conducted by a now-deceased Republican redistricting expert who found asking such a question would allow for redrawing legislative districts that “would be advantageous to Republicans and non-Hispanic whites.”
Judge George Hazel found the question and process of deciding to include it violated the Constitution and a law outlining the process for government decisions, but did not find enough evidence to agree with the critics’ argument that the question was intended to discriminate.
After the new evidence came to light, the judge said he wanted to allow up to 45 days of discovery to consider that and other evidence on the arguments about discrimination.
The government had been set to lay out its plans on Monday, but requested an additional day, according to plaintiffs.
CNN’s Noah Gray contributed to this report.