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Supreme Court Punts on Trump Attempt to 'Use the Census as a Political Weapon to Disempower Communities of Color'

"If this policy is ever actually implemented, we'll be right back in court challenging it," vowed the ACLU attorney who argued the case.

Demonstrators rally at the U.S. Supreme Court in Washington, D.C. on April 23, 2019 to protest a proposal to add a citizenship question in the 2020 census. (Photo: Mandel Ngan/AFP/Getty Images)

Demonstrators rally at the U.S. Supreme Court in Washington, D.C. on April 23, 2019 to protest a proposal to add a citizenship question in the 2020 census. (Photo: Mandel Ngan/AFP/Getty Images)

The U.S. Supreme Court's six right-wing justices on Friday disappointed democracy defenders and handed the outgoing administration at minimum a temporary victory regarding President Donald Trump's effort to exclude undocumented immigrants from the 2020 census count—which will be used to allocate U.S. House of Representative seats to states—by concluding that "judicial resolution of this dispute is premature."

The punt in Trump v. New York is the latest development in a lengthy legal battle that followed the high court in 2019—when it had a different composition—blocking the Trump administration's attempt to include a citizenship question on the census. In the more recent ruling, the majority of justices said (pdf) that "consistent with our determination that standing has not been shown and the case is not ripe, we express no view on the merits of the constitutional and related statutory claims presented."

Justice Stephen Breyer, joined by Justices Sonia Sotomayor and Elena Kagan, pushed back in a dissent, writing:

Under a straightforward application of our precedents, the plaintiffs have standing to sue. The question is ripe for resolution. And, in my view, the plaintiffs should also prevail on the merits. The plain meaning of the governing statutes, decades of historical practice, and uniform interpretations from all three branches of government demonstrate that aliens without lawful status cannot be excluded from the decennial census solely on account of that status. The government's effort to remove them from the apportionment base is unlawful, and I believe this court should say so.

The case was filed by Arnold & Porter, the national ACLU, and its New York, Southern California, and Texas affiliates on behalf of New York Immigration Coalition, Make the Road New York, CASA, American-Arab Anti-Discrimination Committee, ADC Research Institute, FIEL Houston, and AHRI for Justice. A group of state and local governments also challenged the president's relevant memorandum.

The Supreme Court weighed in after the Trump administration appealed a lower federal court's ruling in September against, as the lawsuit put it, "President Trump's lawless attempt to exclude undocumented immigrants from the 'persons' who must be counted in the census for purposes of apportioning congressional seats to states."

Dale Ho, who directs the ACLU's Voting Rights Project and argued the case, said in a statement Friday, "This Supreme Court decision is only about timing, not the merits."

"This ruling does not authorize President Trump's goal of excluding undocumented immigrants from the census count used to apportion the House of Representatives," Ho explained. "The legal mandate is clear—every single person counts in the census, and every single person is represented in Congress. If this policy is ever actually implemented, we'll be right back in court challenging it."

NPR noted that "the litigation added difficulty for an already burdened Census Bureau, which geared up for the nationwide rollout of the census count just as the Covid-19 pandemic began hitting with full force in April. And the Census Bureau indicated this fall that it might not be able to meet the Dec. 31 deadline for reporting its figures."

"Nor has the bureau been able to ascertain what portion of those people living in the United States are not here legally," NPR pointed out.

Keshia Morris Desir, census and mass incarceration project manager at the group Common Cause, put the court's dismissal into political context by calling for action from President-elect Joe Biden, whose inauguration is set for January 20, 2021.

"In our census and the redistricting process, every person and community counts," Morris Desir said. "But the Trump administration has made clear its intention to attempt to erase millions of people from the apportionment process and is once again trying to use the census as a political weapon to disempower communities of color."

Highlighting that three lower courts have deemed the administration's attempt to exclude undocumented immigrants as unlawful on statutory and constitutional grounds, she emphasized that "the Constitution, as amended, says every person should be counted in the census, which is the way we've done it for all of modern history. The census is about lifting all of our voices. Our communities are entitled to fair representation. If undocumented people aren't counted, we all lose."

"Given the timing of today's decision from the Supreme Court, it is doubtful that [the] Trump administration will be able to enforce its July 2020 apportionment memorandum that was at question in this case," she added. "Moving forward, Common Cause urges President-elect Biden to rescind the Trump memorandum."

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