With a little less than two weeks to go before the election, developments concerning the 2020 Census are likely to get buried beneath the latest nonsense spouting from our President.  But the 2020 Census is going to be a very big deal next Spring, and what happens between now and January could have a significant impact.

The main purpose of the Census is to provide population figures for use by Congress in apportioning house seats to the states and for use by the states (and local government) in then drawing district lines for everything from congressional seats to city council seats.  As a secondary effect, some government grants to states and localities are also based on population.

Typically, the Census can be viewed as having three phases.  Phase One has historically been conducted by mail  — sending forms to every residential address and having the residents complete those forms.  This year, this phase was modified to allow people to respond on-line, but the essence of this phase remains the same in terms of it mostly relying on voluntary participation.  Phase Two is the field operation.  In this phase, workers go to residences that did not respond to try to get answers to the census by personal contact.  Finally, Phase Three is the compilation of this data.

This cycle, Covid-19 has created havoc with Phase Two of the process.  Simply put, social distancing makes it hard to do door-to-door field operations.   And the Trump Administration has been playing games with Phase Two.  Earlier this year, the plan was to end field operations at the end of October.  However, as time went on, the Trump Administration decided that it needed to end field operations earlier so that it could complete Phase Three by the statutory deadline (numbers to Congress by the end of the year).  Needless to say, there were court challenges to this change in plans on the obvious theory that, if you thought that you needed to keep going through October 31 to get a complete count,  ending field operations early means that you are intentionally not doing a complete count.  The early rulings from the District Court resulted in an order to keep the field operations going.   On Tuesday, the Supreme Court stayed that order (thereby allowing the field operations to end about two weeks early).  The majority did not issue an opinion explaining the decision, but Justice Sotomayor filed a dissent noting that the only harm identified by the government was missing the December 31 deadline for reporting to Congress and that the government’s own experts believed that they would miss that deadline even if field operations did not end.

There is one other case working through the court system about the Census that was in the news this week.  The Constitution requires a count of all persons residing in the United States.   Historically, all immigrants — including unauthorized immigrants — have been included in the count because they are all actually residing here.  They are not tourists intending to return home in a week or two. Republicans do not like counting unauthorized immigrants because they are likely to reside in Democratic areas, thereby increasing Democratic representation in the House.  So President Trump has proposed that the apportionment numbers should not include unauthorized immigrants.  There is no Constitutional or statutory authority for this decision, but the White House is relying on a general delegation of authority on the conduct and design of the Census.  Again, the lower courts have rejected this usurpation of authority.

This week, the Supreme Court announced that it would hear this case on an accelerated briefing schedule.  First, it is important to understand the procedural posture of this case.  The Supreme Court hears three categories of cases.  The overwhelming majority of the cases come from its discretionary docket.  These are cases that were heard by state supreme courts or the federal appellate courts involving federal issues.  Each year, around 8,000 requests are filed for the Supreme Court to hear these cases, and the Supreme Court only takes around 60-80 of these cases.  It takes the vote of four justices for the Supreme Court to take one of these cases.  The second category of cases are “original jurisdiction” cases.  These are a narrow category of cases, typically involving disputes between two or more states and often concerning water rights to a shared lake or river.  For these cases, the Supreme Court is actually the trial court.  Typically, the Supreme Court appoints an experienced attorney as a “special master” to take the evidence — so the Supreme Court does not have to put aside days to hear from the witnesses — and make a recommendation to the Supreme Court.  On rare occasions, one of the states will disagree with the recommendation, and the Supreme Court will then set the case for argument.

The final category of cases is a limited number of cases in which the Supreme Court is the original appellate court.  Generally speaking, if the statute governing the claim assigns the case to a three-judge panel for trial, the appeal from the panel’s decision is to the Supreme Court.  Most of those cases involve voting rights, but there are other types of cases that fit in this category.  In short, in one of these cases, the Supreme Court has to decide the appeal.  However, that does not mean that the Supreme Court has to allow full briefing and argument.  If the original pleadings connected with the appeal show that there is no substantial issue, the Supreme Court can quickly dispose of the appeal by order or short opinion.  However, if enough of the justices want more briefing and argument, the Supreme Court will set the case on the docket for further briefing.  Theoretically, if five justices are prepared to resolve the case without further briefing, they can do so, but there is also a desire for congeniality.  So the majority might grant argument because the minority wants it, even if five justices think the appeal has little merit.

Because the ruling against the President was made by a three-judge panel, there was an automatic right to appeal and the Supreme Court has to make some ruling on the merits.  We do not know the internal debate that led to the decision to do full briefing.  It could just be that the issue is important enough that the Supreme Court wanted to give the parties a full opportunity to present their argument.  Given the December 31 deadline for the government to produce he census numbers, briefing has been greatly accelerated, and the arguments will be heard on November 30.  Given that deadline, a quick opinion is more likely than not.

Regardless of the decision in this case, the Trump Administration is likely to produce some numbers to Congress in early January and then the Census Bureau will release the breakdown within the states over the next several months.  Depending on how the Supreme Court rules, there is no absolute requirement that Congress accepts these numbers.  After the 1920 Census, Congress rejected the numbers and did not enact a new apportionment plan.  However, since then, Congress has adopted an statute that automatically reapportions the House.  So it is unclear, what would happen if Congress doubts the accuracy of the Trump numbers.  (Perhaps if Biden wins, the new Congress could postpone reapportionment to 2023 and have a new Census in 2022.)

Regardless of what happens with reapportionment of seats between states, there is also the Constitutional requirement that the states redraw lines based on the Census.  Even if Congress does not want to proceed with the Trump numbers, the states might have to use those numbers.

And it is at the state level, that this year’s elections will have a dramatic impact.  While politicians will tell you that every election is important, the elections in the last four years of a decade (‘7-‘0) are slightly more important because, in most states, the legislative branch gets to draw the new district lines.  So the people elected as governor, or state senator, or state representative in these elections can opt to draw lines that slant the district map in a way that makes it easier for one party to win a disproportionate share of seats.  Now some states — like Arizona and California — have taken this power away from the legislature and moved it to a non-partisan commission.  And some states — like Iowa — rely on nonpartisan officials to draw the initial lines subject to an up-down vote by the state legislature.  But most states still allow the legislature to draw the maps.  And in those states, the drawing primarily takes place in the back rooms with a lot of input by the majority party.

As we have seen in the past, it is possible to draw lines that vastly favor the majority party.  Even though North Carolina is a swing state, the Republicans control 10 of the 13 seats in Congress.  In Ohio, Republicans control 12 of  16 seats in Congress.  Under the current lines, the Democrats need to get around 53% of the vote nationally to win the majority in Congress.  That made it very hard for the Democrats to win control of the House and probably kept the Republicans in the majority in 2012 and 2016.

Thus, while it is important to elect Joe Biden as president, to get a majority in the Senate, and to keep the majority in the House, it is also important for Democrats to win the Governor’s mansion in states like Indiana, Missouri, and Utah and keep the Governor’s mansion in North Carolina.  It is also important for Democrats to win state legislative seats — especially in states like Texas, Georgia, and Florida where the Republican governor is not up for re-election this cycle.  Having control of one of the houses in the state legislature or the governor will give us a seat at the table to prevent unfair lines from being drawn.   We are already hearing in states like Utah and Kansas that Republicans are trying to find a way to alter the lines for the next decade to make it harder for Democrats to win the two seats that we currently hold in those two states (both swing seats that were already lean Republican seats).