US Clampdown on Census Records Faces Blowback

(CN) – In a court battle over the citizenship question slated to appear on the 2020 U.S. census, the government’s attempt to shield more than 200 documents inspired derision Thursday night from the challengers.

“Here, the documents withheld may shed light on whether defendants concocted a scheme to mislead the American public — and Congress under oath — about the reason for their decision, and whether the true reason was an improper one,” says the brief filed on behalf of the American Civil Liberties Union and New York Attorney General Barbara Underwood.

“Defendants should not be able to hide behind a privilege intended to protect good-faith government deliberations in order to cover up this scheme,” the brief continues.

Represented by in-house counsel and the law firm Arnold & Porter, the challengers were among many that filed suit after the U.S. Department of Commerce announced in March that it will tackle citizenship for the first time since 1950.

Among other points, the challengers note that such a question could reduce response rates among immigrants, and affect federal funding and congressional seats in areas where those people reside.

Requesting a conference with the court as soon as possible, Underwood noted in her letter Thursday that the deliberative-process privilege shields the internal processes of the executive branch from discovery in certain cases. The plaintiffs claim that protection does not apply here because this case itself centers around determining the government’s intent behind a policy decision.

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

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

“A plaintiff can hardly prove improper government intent if the government can shield evidence reflecting its true motivations,” Underwood wrote. “Here, the NYIC Plaintiffs must prove discriminatory purpose to establish their Equal Protection claim, and thus discovery of how and why Defendants arrived at their decision is essential.”

A second letter, filed early Friday morning, requests a discovery conference with the court and lays out the plan for discovery for four census cases pending in New York, Maryland and California.

Senior Trial Counsel Elena Goldstein explained in her letter the many plaintiffs in all four cases would create a steering committee that would coordinate discovery requests, to limit redundancy and “reduce the burden placed on Defendants.”

The parties agreed to coordinate their depositions, meaning testimony in any one of the cases could be used in all of them.

The administration has claimed the immigration question will help them enforce the Voting Rights Act. But when he brought the suit in early April, former New York attorney general Eric Schneiderman pointed out U.S. Attorney General Jeff Sessions had not prosecuted a single case under that statute.

Opponents of an immigration question say such a query discriminates against U.S. residents who might not want to share with the federal government information about their status. As a result, they argue, immigrant-heavy areas could be deprived of billions of dollars in federal funds and possibly even congressional seats. Researchers have added that health and social science research could also take a hit from an inaccurate headcount of U.S. residents.

From 1890 to 1950, the U.S. census included a citizenship question. Abandonment of the question occurred as as the Census Bureau started reducing the number of questions on the survey and using population samples to make up the difference.

Underwood’s office and the ACLU did not immediately respond to requests for comment Friday. A representative for the Department of Justice declined to comment.

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