In his appeal, acting solicitor general Jeffrey B. Wall requested the court resolve the case before Dec. 31, when the Commerce Department must report census data to the president.
Otherwise, he wrote, Commerce Secretary Wilbur Ross and Trump “will be forced to make reports by the statutory deadlines that do not reflect the President’s important policy decision concerning the apportionment.”
Excluding undocumented immigrants would overturn the way apportionment has been implemented for over two centuries, and census experts and constitutional scholars say it would not be legal.
The memo followed the government’s unsuccessful attempt to add a citizenship question to the 2020 Census, and it sparked a raft of lawsuits.
The Sep. 10 ruling by the U.S. District Court in the Southern District of New York was in response to two consolidated lawsuits over the memo — one filed by the American Civil Liberties Union, the New York Civil Liberties Union, the ACLU of Texas and the law firm Arnold & Porter; and one filed by New York Attorney General Letitia James along with 22 other state attorneys general and 14 cities and counties across the country.
Other legal challenges to the memo include one by the government watchdog organization Common Cause, and several cities, groups and individuals that was filed in the U.S. District Court for the District of Columbia, for which a hearing is scheduled next Tuesday.
Dan Vicuña, national redistricting manager for Common Cause, called the administration’s legal arguments “preposterous.”
“This is a nakedly partisan attempt to break the law by rigging the census, and we fully expect the same outcome in this case” as was decided in the lower court, he said.
A Supreme Court ruling on this case could set precedent that would affect the lower court’s decision in the Common Cause case.
Dale Ho, director of the ACLU’s Voting Rights Project and one of the attorneys who argued the New York case, said the government’s push for expedited consideration contradicted its earlier argument to the lower court.
“They told [New York Southern District Judge Jesse] Furman that there was no urgency to this case; they said in fact the Supreme Court could take up this case as late as 2022, and now they’re saying, ‘Oh, my God, if we don’t get to send our preferred population numbers for apportionment for the House to Congress by December, then that would be irreparable harm.’ ”
The Justice and Commerce departments did not respond to requests for comment.
The legal challenges to the memorandum come amid legal and legislative battles over when the census count will end. The Trump administration has said it will end Sept. 30 so the department can deliver data to the president by the congressionally mandated Dec. 31 deadline.
But the coronavirus pandemic delayed census operations by several months, and the administration had asked Congress to approve a four-month delay to report the data, only to reverse itself last month and say it would meet the deadline in time for Trump to receive the data while still in office. That reversal triggered its own legal challenges, and a judge in California has temporarily blocked the government from winding down census operations.
In the past week, hurricanes and wildfires have caused additional delays as the bureau races to enumerate all households in the country.
Constitutional scholars have noted that for apportionment, Section 2 of the 14th Amendment requires a count of all persons usually residing in the country, without regard to citizenship status.
In its statement to the court Tuesday, the government argued that “the phrase ‘persons in each State’ has never been understood in the apportionment context to cover all persons physically in the country on census day, such as foreign tourists.”
An estimated 10.5 million to 12 million undocumented immigrants live in the United States, many of whom spend the majority of their time here.
It is unclear how practical the president’s memorandum is. The memo itself stipulated that it be carried out “to the maximum extent feasible and consistent with the discretion delegated to the executive branch,” and the government’s statement to the court said the Census Bureau was “still evaluating the extent to which, as a practical matter, administrative records pertaining to immigration status can be used to identify and exclude illegal aliens from the apportionment population count.”
But challengers in court argued that the memo created a “chilling effect” on census response in immigrant communities already spooked by the government’s attempt to add a citizenship question. An undercount of these communities would affect their portion of federal funding and congressional apportionment, and could affect redistricting, all of which are based on census data.
Litigation over a similar issue is underway in Alabama, which has sued the Commerce Department and the Census Bureau, arguing that immigrants should not be counted for apportionment or federal funding if they are not in the United States legally, even if they do fill out the decennial survey.