The Supreme Court on Tuesday issued a brief, unsigned order that is expected to halt the 2020 census. Only Justice Sonia Sotomayor publicly disagreed with the Court's decision in the Ross v National Urban League case, although it is possible that up to two other judges could disagree without making this disagreement public.
The case involves a late attempt by political officials to end the census sooner when Census Bureau experts determined that census could be completed during a pandemic. The practical impact of the Court's ruling is that marginalized groups – including people of color, people on low incomes and people living in tribal areas – are particularly likely not to be counted.
As Sotomayor explains in their dissenting opinion, the count was originally supposed to end on July 31, but the Census Bureau decided to extend that date to October 31 due to the Covid-19 pandemic.
A senior official from the bureau stated, "It was" ridiculous "to expect the bureau to complete" 100 percent of the country's data collection earlier than (October 31) "in the middle of a pandemic."
Political representatives of the Trump administration supported this decision for several months. They even supported laws that would have extended the December 31 deadline for the Census Bureau to report the full 2020 census results to President Trump. However, in early August, Trade Secretary Wilbur Ross abruptly changed course. He announced that the census would end on September 30th and the government would stop lobbying for Congress to extend the December deadline.
In response to these developments, a lower federal court ordered the Census Bureau to continue the people count through October 31 – the date the census would have stopped had Ross not intervened to stop the census in September. Now that Ross is no longer bound by that order, he can stop the census counting.
The Court's order to stop the census is in line with its laissez-faire approach to voting rights
The Court's one-paragraph order does not explain why a majority of the judges decided to stop the census. It doesn't even pretend to be the last word in this legal battle. Rather, the court's order to end the count remains just the order of the lower court, while this case is fully examined by an appeals court and then possibly challenged again with the judges.
In practice, however, the order of the Court of Justice in the Ross case is likely to be the last word on census. By the time this case is fully tried in the appeals court (and possibly the Supreme Court), the census will almost certainly have ended and the case will be controversial.
Although the Court does not explain its decision, this decision is not particularly surprising. The Republican majority in the Supreme Court has largely urged the federal judiciary to put off other government officials on cases asking how the government should respond to the pandemic. And the majority of the Court has shown a particular indifference to the right to vote.
As Judge Brett Kavanaugh recently stated in a voting statement, courts should typically "postpone a state legislature's decision to maintain or change electoral rules to address COVID-19." A similar logic could also apply to a federal cabinet secretary's decision on how the census should adjust during a pandemic.
And make no mistake, Ross is a voting case. The census doesn't just determine how federal funds are allocated. It also determines how congressional representation and the votes of the electoral college are distributed among states. As Sotomayor explains differently, "the percentage of non-responses" during a census is "likely to be much higher among marginalized populations and in hard-to-count areas such as rural and tribal areas".
The ruling by the Court of Justice in Ross will likely transfer power from marginalized communities (who often vote for Democrats over Republicans) to wealthier and whiter communities (who are more likely to support Republicans).
If the Trump administration is to be believed – and the Supreme Court has lied to the government in the past about the census – the impact of the Ross decision is likely to be small. The government, according to Sotomayor, claims that “over 99 percent of households in 49 countries are already included in the current census”.
But even if the government is telling the truth, Sotomayor continues: "A fraction of a percent of the nation's 140 million households equals hundreds of thousands of people who are not counted." And these households are probably disproportionately low-income and less white than the people counted.
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