The court, likely to soon have a 6-3 conservative majority if the Republican-controlled Senate confirms Trump nominee Amy Coney Barrett, will hear the case on Nov. 30.
The challengers to Trump’s July directive, including various states led by New York, cities, counties and immigrant rights groups, said it could leave several million people uncounted and likely cause California, Texas and New Jersey to lose seats in the U.S. House of Representatives.
Trump “seeks to reallocate political power among the states and to weaken the political influence of states with larger populations of undocumented immigrants,” the challengers said in a court filing.
They alleged the policy could also deter people from participating in the census and argue that it violates both the Constitution and the Census Act, a federal law that outlines how the census is conducted.
A three-judge panel ruled against the administration in September.
The U.S. Constitution ensures that the apportionment of seats in the House of Representatives be based on the “whole number of persons in each state.” The population number is derived from the census, which takes place every 10 years.
By statute, the president sends Congress a report in early January with the population of each state and their entitled number of representatives. A ruling in the case could be expected before the report is due.
Once states are allocated the districts, the states themselves draw the districts, which will be used first in the 2022 congressional election.
The census itself does not gather data on citizenship or immigration status. The Trump administration would base its numbers on data gathered elsewhere.
The Supreme Court on Oct. 14 allowed the Trump administration to wind down population counting for the census early in a blow to civil rights advocates who said it could lead to an undercount of racial minorities.
Efforts to get an accurate census count have been hindered by the coronavirus pandemic, which has limited the ability of workers to follow up in person with those who did not fill out the survey.
The census data is also used to allocate billions of dollars a year in federal funding.