Even as the Senate Judiciary Committee has been holding hearings on the nomination of a third Trump Supreme Court justice, the Trump justices already on the Court, as well as lower court Trump judges, have issued rulings that will harm millions of Americans with respect to the 2020 census and make it much harder for Texans to vote this year.
As Judge Amy Coney Barrett was evading questions on Tuesday, the Supreme Court issued an unsigned, one paragraph ruling in Ross v. National Urban League that stayed a lower court decision requiring the government to continue the U.S. Census, even though an appeals court had denied such a stay. Trump justices Gorsuch and Kavanaugh joined the Court’s order.
As explained in an earlier Confirmed Judges, Confirmed Fears blog entry, although the Census Bureau initially supported a longer schedule for counting every person in the census as a result of the coronavirus pandemic, the Trump administration abruptly shifted the government’s position in July, when it ordered the Bureau to speed up counting and end it by September 30, a full month earlier than previously scheduled. The National Urban League and others filed suit, and a federal district court granted a preliminary injunction prohibiting the Bureau from stopping collection and related activities on September 30. The government asked for an immediate stay from the Ninth Circuit Court of Appeals.
The appellate court denied the stay in a 2-1 vote, with Trump judge Patrick Bumatay dissenting. As the majority explained, the “hasty and unexplained changes” by the Bureau in the summer risk “undermining the Bureau’s mission” to produce a complete and accurate census count, an issue of “extraordinary importance.” The majority also pointed out that the record showed that staying the injunction, as the government requested, would mean that “[t]housands of census workers” performing crucial field work “will be terminated,” and that restarting the field operations and data collection efforts “would be difficult if not impossible to accomplish in a timely and effective manner.”
As questioning of Barrett continued on October 13, the Court nevertheless granted a stay as the Trump administration requested. Although no one in the majority said a word in the order’s defense, Justice Sonia Sotomayor explained that by allowing the Census Bureau to sacrifice completeness and “accuracy for expediency,” the stay would cause “irreparable” and “substantial injury” that will last “for at least the next 10 years” in areas like “the distribution of federal and state funding” and the “deployment of services.” As experts have explained, the ruling will “only worsen existing undercounts” of minorities, the poor, and young people, which is likely to “dilute the political power of Democrats” as well.
Shortly after midnight on Monday, the first day of the hearing, three Trump judges on the Fifth Circuit issued a devastating ruling concerning voting in Texas. In Texas League of United Latin American Citizens v. Hughs, the court reversed a district court ruling and reinstated Texas Governor Greg Abbott’s limit of one absentee ballot drop-off box per county. Trump judges Kyle Duncan, Don Willett, and James Ho claimed that Abbott’s order “abridges no one’s right to vote” because of the various other methods such as the U.S. mail to return absentee ballots and was justified by concerns about voter fraud. Ho wrote a separate concurring opinion, suggesting that Abbott was acting beyond his authority to even allow any drop boxes by “executive fiat.”
As the president of the Texas League of Women voters explained, the result of Abbott’s order and the court’s decision is “just plain and simple voter suppression,” particularly with respect to minorities, “people with disabilities, and elderly voters.” As Senator Kamala Harris pointed out at the Barrett hearing, for example, instead of the 12 drop-off boxes previously set up in Houston and the rest of Harris County, there will now only be one, even though the county includes almost four million people (2.4 million registered voters) and spans 2,000 square miles.
As a Trump-nominated judge herself, Barrett has already done considerable damage to people’s rights. The harm done by Trump justices and judges during her recent hearing illustrates that she can do even more if confirmed for the Supreme Court.