For the third time in two months, civil rights groups and state and local governments on Thursday asked judges to strike down a directive from President Donald Trump that would exclude people living in the U.S. illegally from being counted when deciding how many congressional seats each state gets.
The coalition of civil rights groups and state and local governments called on the panel of three federal district judges in California to rule that Trump’s order was illegal, claiming it discriminates against people based on race, ethnicity, and national origin. Their attorneys said during a virtual hearing that Trump’s order goes against 230 years of U.S. history, will cause them to lose political representation and discourages people in the country illegally from participating in the 2020 census.
“There is no basis in the statutes and no basis in the Constitution to make a distinction solely on immigration status,” said Richard Bress, an attorney for the plaintiffs. “The baseline is inclusion.”
The numbers used for deciding how many congressional seats each state gets is a process known as apportionment. It is derived from the once-a-decade head count of every U.S. resident that is set to end at the end of the month. The census also helps determine the distribution of $1.5 trillion in federal funding annually.
A Trump administration attorney told the judges that any challenges to the president’s order are premature and should wait until after the apportionment figures are turned in at year’s end. The Census Bureau is still figuring out a method for determining the citizenship status of every U.S. resident and there’s no way of knowing if it will be feasible since it is “devilishly difficult,” said Sopan Joshi, assistant to the Solicitor General.
But Matthew Wise, an attorney for the plaintiffs, told the judge there was no doubt the president intended to implement the order. And Bress said delaying a decision risked creating a constitutional crisis if an apportionment count complying with the order is figured out, and a court tries to stop the president from turning them into Congress.
Under questioning from the judges, Joshi conceded that there was no historical precedent for not counting residents because of their immigration status. But he said the president had the discretion to do so.
After Trump issued the order last July, around a half dozen lawsuits were filed across the U.S., challenging it. Hearings on the order already have been held in Washington and New York, and a panel of three federal judges in New York ruled that it was unlawful. The Trump administration has appealed to the U.S. Supreme Court.
The New York judges didn’t rule on the constitutionality of the memorandum, merely saying it violated federal laws on the census and apportionment. That left open the door for the judges in the other cases to rule on other aspects of the president’s memorandum. Other lawsuits challenging the memorandum have been filed in Maryland and Massachusetts, and a lawsuit filed two years ago in Alabama covers the same ground.
The California case was being heard virtually Thursday before three district judges, as required in cases about the constitutionality of apportionment. They included U.S. District Judge Lucy Koh, who last month in a separate case stopped the Trump administration from finishing the census at the of September, allowing the count to go on for another month through October. A different coalition of civil rights groups and local governments had sued the Trump administration for the extra time, arguing minorities and others in hard-to-count communities would be missed if the counting ended early.
The Trump administration on Wednesday asked the Supreme Court to put Koh’s order on hold.
Although the legal fights over Trump’s order and when the census will end are being fought in separate court cases, opponents challenging the Trump administration say they are intertwined since the census schedule was shortened to accommodate Trump’s order.
Facing disruptions to field operations because of the pandemic, the Census Bureau proposed a new timetable in April that extended the deadline for finishing the count from the end of July to the end of October and pushed the apportionment deadline from Dec. 31 to next April. The proposal to extend the apportionment deadline passed the Democratic-controlled House, but the Republican-controlled Senate didn’t move on the request. The Republicans’ inaction coincided with Trump’s order. Then, last August, Census Bureau officials shortened the count schedule by a month so that it would finish at the end of September, saying they needed to do so to meet the Dec. 31 deadline.
By sticking to the Dec. 31 deadline, the apportionment count would be under the control of the Trump administration no matter who wins the presidential election next month.
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