A federal judge struck down a controversial question about US citizenship that the Trump administration added to the 2020 census, ruling that āadding a citizenship question to the census will result in a significant reduction in self-response rates among noncitizen and Hispanic households.ā
New York and 16 other states, along with the American Civil Liberties Union and immigrant rights groups, challenged the question, saying it would depress response ratesĀ from immigrants, imperil the accuracy of the census, and shift political power to areas with fewer immigrants. Judge Jesse Furman of the Southern District of New York agreed with the plaintiffs, finding on Tuesday that āhundreds of thousandsāif not millionsāof people will go uncounted in the census if the citizenship question is included…That undercount, in turn, will translate into a loss of political power and funds, among other harms, for various Plaintiffs.ā
The census determines how $675 billion in federal funding is allocated, how much representation states receive, and how political districts are drawn. āGiven the stakes, the interest in an accurate count is immense,ā Furman wrote in his 277-page opinion. āEven small deviations from an accurate count can have major implications for states, localities, and the people who live in themāindeed, for the country as a whole.ā
The decision is likely to be appealed to the Supreme Court, which could reinstate the question in time for it to be included on the 2020 census.
The administration announced in March 2017 that it was adding the citizenship question, which hasnāt been asked on the censusĀ since 1950. Commerce Secretary Wilbur Ross, who oversees the Census Bureau, approved the question. Furman ruled that Rossā decision violated the Administrative Procedure Act of 1946, which prohibits federal agencies from acting in a manner that is arbitrary and capricious. In a biting opinion, Furman ruled that Ross āalternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him,ā āacted irrationally,ā and āfailed to justify significant departures from past policies and practicesāa veritable smorgasbord of classic, clear-cut APA violations.ā
Ross said he approved the question because he said the Justice Department needed it for āmore effective enforcementā of the Voting Rights Act. He subsequently testified before Congress that the DOJ had āinitiatedā the request. However, evidence released during the trial repeatedly undercut the Trump administrationās stated rationale for the question, as Mother Jones reported from the three-week trial in New York City:
In a deposition played on a video screen at the trial, John Gore, the former assistant attorney general for civil rights in the Justice Department, stated that Ross, and not the Justice Department, had initially requested the citizenship question.Ā HeĀ agreed with a lawyer for the ACLU that the citizenship question was ānot necessaryā to enforce the Voting Rights Act. He said he was not aware of any voting rights case in which the Justice Department had not succeeded because it lacked access to citizenship data on the census, and he confirmed that President Donald Trumpās Justice Department hadnāt filed a single case to enforce the Voting Rights Act. He also said that Attorney General Jeff Sessions had ordered him not to meet with the Census Bureau to discuss an alternative proposal to the citizenship question that would use existing government records to confirm citizenship status, which the bureau said would be cheaper and more accurate.
John Abowd, the top scientist for the Census Bureau, testified that the bureau opposedĀ adding the question. Abowd wrote in a January memo to bureau leadership that the citizenship question would be āvery costly, harms the quality of the census count, and would use substantially less accurate citizenship status data than are available from administrative sources.ā He said Sessions used his āpolitical influenceā to prevent Justice Department staff from meeting with the bureau to hear their concerns.
Furman found that Ross “announced his decision in a manner that concealed its true basis rather than explaining it, as the APA required him to do.ā Furman concluded, āIn arriving at his decision as he did, Secretary Ross violated the law…And in doing so with respect to the census…Secretary Ross violated the public trust.ā
The evidence in the case shows that the upper echelons of the White House pressured Ross and the Commerce Department to reinstate the citizenship question on the census, apparently because of a desire to reduce the influence of immigrant communities, as Mother Jones has previously reported:
One of the senior administration officials who lobbied Ross to add the question was former White House chief strategistĀ Steve Bannon. In July 2017, Kansas Secretary of State Kris Kobachāat the timeĀ the vice chair of President Donald Trumpās now-defunct Election Integrity Commissionāwrote to Ross āat the direction of Steve Bannonā and said it was āessentialā that the citizenship question be added to the census. Kobach wrote that the absence of a citizenship question āleads to the problem that aliens who do not actually āresideā in the United States are still counted for congressional apportionment purposes.ā
Kobachās correspondence with Ross contradicted the Trump administrationās stated rationale for the questionāKobach never mentioned the Voting Rights Act in his letterāand suggested the question was added to reduce the political clout of areas with many immigrants and boost Republicans.Ā The Justice DepartmentĀ said in courtĀ that Kobach, Bannon, and Attorney General Jeff Sessions, who have all advocated aggressive crackdowns on immigration, were among those involved in pushing forĀ the citizenship question.
Ross had āno apparent interest in promoting more robust enforcement of the VRA,ā Furman found. āWhile the Court is unable to determineābased on the existing record, at leastāwhat Secretary Rossās real reasons for adding the citizenship question were, it does find, by a preponderance of the evidence, that promoting enforcement of the VRA was not his real reason for the decision. Instead, the Court finds that the VRA was a post hoc rationale for a decision that Secretary had already made for other reasons.ā
If noncitizens do not respond to the census, which Furman said was likely to happen if the citizenship question remained, areas with a high concentration of immigrants, like New York, California, and Texas, will receive less federal funding and fewer political seats. āThe Court finds by a preponderance of the evidence that California residents face a certainly impending loss of representation in the House of Representatives,ā Furman wrote. āSimilarly, Texas, Arizona, Florida, New York, and Illinois face a substantial risk of losing a seat.ā
Six major lawsuits, including the one from New York and 16 other states, are currently challenging the citizenship question. The Supreme Court has scheduled oral arguments in FebruaryĀ to decide whether Ross must sit for a deposition under oath and what kind of evidence can be considered in these cases. Furman vacated his September decision that Ross must sit for a deposition under oathāa decision the Supreme Court had already blockedābut itās possible the Supreme Court could instead hear an expedited appeal of Furman’s decision striking down the citizenship question and reinstate the question in time for the 2020 census.
For now, this is sure to be one of the most important legal decisions of the new year, one that will go a long way toward deciding what the 2020 censusāand by extension, the future of American politicsāwill look like over the next decade.