Challenge to Citizenship Question on 2020 Census Survives

MANHATTAN (CN) – Commerce Secretary Wilbur Ross may have added the citizenship question to the 2020 census for discriminatory reasons, a federal judge ruled Thursday, advancing a challenge by 18 states, several cities and nongovernmental groups.

New York Attorney General Barbara Underwood called the ruling "a big win for New Yorkers and everyone across the country who cares about a fair and accurate census."

"This decision also follows a court order earlier this month that required the Trump administration to provide vital documents and information on how the decision to demand citizenship information was made," Underwood said in a statement. "As we’ve argued, the Trump administration’s plan to demand citizenship status as part of the census is unlawful – and it would potentially cause a huge undercount that would threaten billions in federal funds and New York’s fair representation in Congress and the Electoral College."

Reviving a question shelved from the census since 1950, Secretary Ross sparked federal court litigation that has drawn scrutiny into his sworn statements to congress about why he made the change.

The Department of Justice has insisted that the courts cannot review those decisions, a position that U.S. District Judge Jesse Furman decisively rejected Thursday.

“The historical practice reveals that, since the very first census in 1790, the federal government has consistently used the decennial exercise not only to obtain a strict headcount in fulfillment of the constitutional mandate to conduct an ‘actual enumeration,’ but also to gather demographic data about the population on matters such as race, sex, occupation, and, even citizenship,” he wrote in a 70-page ruling.

“Moreover, it reveals that all three branches of the government — including the Supreme Court and lower courts — have blessed this dual use of the census, if not a citizenship question itself,” the judge continued. “In the face of that history and the broad constitutional grant of power to Congress, the court cannot conclude that the Secretary lacks power under the Enumeration Clause to ask a question about citizenship on the census.”

Commerce Department spokesman Kevin Manning said the agency was "pleased the court found that Secretary Ross has broad authority over the Census."

"We are confident that this includes the authority to reinstate a citizenship question and that plaintiffs’ remaining claims will be dismissed after discovery shows that the Secretary lawfully exercised his discretion to do so," Manning continued. "The Secretary’s and the Census Bureau’s priority remains conducting a complete and accurate 2020 Census."

While finding that the commerce secretary has the power under the U.S. Constitution’s enumeration clause to reinstate the citizenship question, Furman ruled that he may not do so for discriminatory reasons.

At a hearing earlier this month, Furman found that the attorneys general leading the lawsuit made a “strong showing of a claim of bad faith” by Secretary Ross in reinstating the citizenship question.

On June 21, Ross told the House Ways and Means Committee that the Department of Justice requested that the census include a citizenship question to help enforce the Voting Rights Act.

“Yet in a June 21, 2018 supplement to the administrative record, Secretary Ross admitted that he ‘began considering’ whether to add the citizenship question ‘soon after’ his appointment as secretary in February 2017 — almost ten months before the ‘request’ from DOJ — and that, ‘as part of that deliberative process,’ he and his staff asked the Department of Justice if it ‘would support, and if so would request, inclusion of a citizenship question,’” Furman’s ruling states.

On Tuesday, the Washington Post published emails of Ross lobbying for this change far earlier than the timeline the secretary plotted to Congress.

The states involved in the lawsuit include Connecticut, Delaware, Illinois, Iowa, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Virginia, Vermont, Washington and the District of Columbia, joined by several cities and groups.

The five nongovernmental organizations – the American Civil Liberties Union, New York Immigration Coalition, Casa de Maryland, American-Arab Antidiscrimination Committee, ADC Research Institute and Make the Road New York – persuaded the judge that the change may have gone straight to the top of the executive branch.

“NGO plaintiffs plausibly claim that President Trump was personally involved in the decision, citing his own reelection campaign’s assertion that he ‘officially mandated’ it,” Judge Furman wrote.

Furman agreed that the non-governmental organizations “plausibly allege that Secretary Ross’s decision to reinstate the citizenship question on the 2020 census was motivated by discriminatory animus and that its application will result in a discriminatory effect.”

“As discussed below, that conclusion is supported by indications that defendants deviated from their standard procedures in hastily adding the citizenship question; by evidence suggesting that Secretary Ross’s stated rationale for adding the question is pretextual; and by contemporary statements of decisionmakers, including statements by the President, whose reelection campaign credited him with ‘officially’ mandating Secretary Ross’s decision to add the question right after it was announced,” the opinion states.

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