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Supreme Court To Hear Arguments On Census Counts And Electoral Votes

SARAH MCCAMMON, HOST:

The Trump administration is going before the Supreme Court tomorrow to argue a case about numbers. This one is not over election results but the 2020 census. The first tallies from the national headcount will be used to redistribute congressional seats among the states for the next decade. And before leaving office, President Trump wants to try to make an unprecedented change to the numbers. NPR's Hansi Lo Wang joins us now from New York to explain.

Hi, Hansi.

HANSI LO WANG, BYLINE: Good morning, Sarah.

MCCAMMON: The Supreme Court weighed in on the census last year when it rejected the Trump administration's plan to add a citizenship question to the form. What is the Supreme Court going to hear tomorrow?

WANG: This time, the Supreme Court is basically considering the question, can the president change who is counted in the census numbers used to determine how seats in the House of Representatives and votes in the next Electoral College are reapportioned among the states for the next 10 years? The 14th Amendment and federal law say those numbers must include the whole number of persons in each state. But President Trump put out a memo in July, and Trump considered a continuation of his fight for a citizenship question on the census. And this memo argues that as president, he has the discretion, he says, to leave out unauthorized immigrants for - from those census counts.

Three lower courts have disagreed. They've blocked Trump's memo because carrying out would break with the entire 230-year history of the U.S. Census, which has never excluded any person living in the U.S. based on immigration status. But Trump appealed that - one of those rulings directly to the Supreme Court and asked the justices to squeeze in oral arguments before the end of this year.

MCCAMMON: And why the last-minute hearing?

WANG: If the Supreme Court rules for the Trump administration soon, that could clear legal barriers to President Trump trying to make this unprecedented change before his term ends. And the timing here is very important because there are legal deadlines for reporting the first set of census numbers, beginning on December 31. And if those dates are missed, the process for reapportioning House seats could end up happening during the Biden administration instead. And, you know, based on my reporting so far, it's looking like it will.

MCCAMMON: OK, Hansi. Explain that a little bit more, if you would. Why is that?

WANG: I recently reported that the Census Bureau found what it's calling processing anomalies in the census results. So it needs more time to run quality checks on the data. And I've confirmed that internally, the Census Bureau is now planning to finish putting together those first set of census results by January 26 at the earliest, which is almost one week after Inauguration Day.

MCCAMMON: Right.

WANG: I should mention also that the administration says it still does not know exactly how it's going to get a state-by-state count of unauthorized immigrants that can be subtracted from the census apportionment count. So even if Trump clears the legal barriers here, there are still major practical barriers. For example, there's another one that federal law says it's a clerk of the House of Representatives, not the president, who certifies each state's share of House seats.

MCCAMMON: And put this in context, if you would, Hansi. How unusual is this level of contentiousness that we've been seeing around the 2020 census?

WANG: Lawsuits usually start lining up after the census numbers are out. The Trump administration has been trying to reshape the census before the numbers come out through this apportionment memo that pushed at a citizenship question, as well as last-minute schedule changes it made earlier this year that ended counting early. And that's raised a lot of questions about the accuracy of this year's census, especially in the middle of a pandemic. So I'm watching for possible more lawsuits over the census results after Trump is out of office.

MCCAMMON: NPR's Hansi Lo Wang covers all things census-related.

Hansi, thanks for talking us through this.

WANG: You're welcome, Sarah.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.