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Trump wants the Supreme Court to let him weaponize the census against immigrants

Officials asked the Court to exclude unauthorized immigrants from 2020 census counts used to determine congressional representation.

President Donald Trump speaks before signing an executive order regarding the US census on July 9.
Win McNamee/Getty Images
Nicole Narea covers politics and society for Vox. She first joined Vox in 2019, and her work has also appeared in Politico, Washington Monthly, and the New Republic.

The Trump administration asked the Supreme Court on Tuesday to review its policy excluding unauthorized immigrants living in the US from census population counts for the purposes of redrawing congressional districts in 2021 — a transparent attack on their political power that was struck down by a New York federal court earlier this month.

Most states currently draw congressional districts, determining the areas that each elected official represents based on total population, including unauthorized immigrants. Current maps are due to be redrawn across the country in 2021 after the results of the 2020 census come in, and the stakes are high: Each redistricting has a lasting influence on who is likely to win elections, which communities will be represented in Congress, and, ultimately, what laws will be passed.

President Donald Trump’s attempt to exclude unauthorized immigrants would reduce the counts in areas where foreign-born populations have traditionally settled — primarily Democrat-run cities — and therefore undermine their political power relative to more rural, Republican-run areas. But it could also impact red states with large immigrant populations, including Texas.

The administration argued Tuesday that by law, the president has the final say over who must be counted in the census.

It also asked the justices to expedite the case such that they would hear oral arguments in December and issue a decision prior to December 31, the federal deadline for sending the population counts to Congress for purposes of redistricting. (The current deadline to respond to the census is September 30, though an ongoing lawsuit demands the Trump administration push back that deadline on account of the pandemic.)

Whoever Trump nominates to succeed the late Justice Ruth Bader Ginsburg could cast a deciding vote in the case. Trump has indicated that he will announce his nominee as early as Saturday, and they will likely have the votes to be confirmed by the Republican-led Senate by year’s end in spite of the upcoming election.

In a written statement issued after he signed the memorandum in July, Trump said that allowing unauthorized immigrants to be counted would undermine American representative democracy and create “perverse incentives” for those seeking to come to the US.

“There used to be a time when you could proudly declare, ‘I am a citizen of the United States,’” Trump said in the statement. “But now, the radical left is trying to erase the existence of this concept and conceal the number of illegal aliens in our country. This is all part of a broader left-wing effort to erode the rights of Americans citizens, and I will not stand for it.”

But on September 10, a panel of three federal judges found that Trump’s memorandum skirted the federal government’s constitutional obligation to count every person, no matter their immigration status, in the census every 10 years.

Trump has tried to politicize the census before

This wasn’t the first time that Trump has used the census to target immigrants. In June 2019, Trump lost his bid to put a question about citizenship status on the 2020 census at the Supreme Court. Several states, including California and New York, said the question would depress response rates among immigrant communities and cost their governments critical federal funding.

Trump, on the other hand, had argued that citizenship data would aid the Department of Justice’s enforcement of the prohibitions against racial discrimination in voting. But that rationale was just a pretext, introduced after the fact to justify the question and meant to obscure the administration’s actual reasoning, the justices found.

Had the administration decided to continue pursuing the citizenship question, it would have had to race to support its decision with more valid reasoning in order to print the census forms on time.

Trump ultimately decided against doing so, instead issuing an executive order in July 2019 that instructed the US Census Bureau to estimate citizenship data using enhanced state administrative records. Trump suggested at the time that the data could be used to draw electoral districts in 2021 based on where eligible voters live, as legislators in Texas, Arizona, Missouri, and Nebraska had already sought.

Trump has facilitated the creation of that data, though it’s not clear just how accurate it is. The executive order authorized the Census Bureau to collect more data from US Immigration and Customs Enforcement, US Customs and Border Protection, and US Citizenship and Immigration Services in an attempt to identify the citizenship status of more people. The bureau later started asking states to voluntarily turn over driver’s license records, which typically include citizenship data, to determine the citizenship status of the US population.

The White House memorandum represents the culmination of those efforts, which immigrant advocates saw as a blatant attempt to strip resources and political power from brown and Black communities. Beyond its impact on apportionment and redistricting, they had feared the memorandum would indirectly discourage immigrants who had yet to respond to the census from doing so. It could have also hurt communities with large immigrant populations, as federal funding is usually determined by census counts.