Will the census count all of America?

Next week, in what promises to be the highest-profile case of this Supreme Court term, the court will consider whether the Trump administration complied with these dictates when it sought to add to the 2020 census a question about whether the respondent is a U.S. citizen.

At the heart of the dispute lies the question: Who gets to be counted?

Federal law protects the privacy of everyone who responds to the census. But that’s small comfort for immigrants and their families living in a climate of fear under President Donald Trump. Bureau officials have for decades recognized that communities with significant immigrant populations are likely to be undercounted if there is a citizenship question on the census.

The 2020 count is no exception. Three federal judges — in New York, California and Maryland — have held trials and ruled that Commerce Secretary Wilbur Ross, who oversees the Census bureau, violated the law when he ignored available data and ordered the agency to move ahead with the citizenship question.

As those judges noted, the bureau’s own career scientists and statisticians were kept in the dark about Ross’ plans, which were devised in the early days of the Trump administration by the president’s former chief strategist Steve Bannon and by Kris Kobach, then the Kansas attorney general and a notorious immigration hard-liner.

U.S. District Court Judge Jesse Furman, who first struck down the citizenship question in January, said Ross ran afoul of “a veritable smorgasbord” of rules governed by the Administrative Procedure Act, a cornerstone of federal law that tells the government how to do its job.

Furman didn’t hold back. Ross “failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices,” he wrote.

Ross has defended the citizenship question by arguing that the Justice Department needs the information to better enforce the Voting Rights Act of 1965. Furman rightfully called that rationale “pretextual” — the secretary searched for it after he had decided what he wanted.

By the bureau’s own, nonpartisan analysis, adding a citizenship question to the “short form” that will go to every household in the United States in 2020 could result in an undercount of 6.5 million people — close to the entire population of Indiana or Tennessee. And the agency has told Ross that there are better alternatives to a citizenship question that wouldn’t pose significant “potential quality and cost disruptions” in administering the census, such as deriving citizenship data from the American Community Survey, a longer questionnaire sent out annually that already asks such a question.

It’s against this backdrop that the Supreme Court will decide whether Ross followed the procedures set out in federal law. Technical though that inquiry may seem, the justices’ decision could have profound consequences. The census today helps determine key aspects of the nation’s representative democracy: how many seats in Congress will be apportioned among the states, and thus in the Electoral College; the distribution of billions of dollars in federal funds; and how state and congressional districts will be drawn in the next redistricting cycle. The data collected also goes to other uses that are vital to local communities and businesses.

Two versions of the 2020 census form — one with the citizenship question and one without — are ready to be printed the moment the Supreme Court rules, most likely at the end of June. Whether the nation gets an accurate and fair count of its residents is now in the justices’ hands.

Will the census count all of America?

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