Judge Strikes Down Controversial Citizenship Question on 2020 Census

In a scathing ruling, the judge said the Trump administration had “violated the law” and “violated the public trust.”

Immigrant rights activists speak during a news conference in New York in November.Mary Altaffer/AP

Fight disinformation: Sign up for the free Mother Jones Daily newsletter and follow the news that matters.

A federal judge struck down a controversial question about US citizenship that the Trump administration added to the 2020 census, ruling that ā€œadding 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 ā€œhundreds of thousandsā€”if not millionsā€”of 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. ā€œGiven the stakes, the interest in an accurate count is immense,ā€ Furman wrote in his 277-page opinion. ā€œEven small deviations from an accurate count can have major implications for states, localities, and the people who live in themā€”indeed, 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 hasnā€™t 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 ā€œalternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him,ā€ ā€œacted irrationally,ā€ and ā€œfailed to justify significant departures from past policies and practicesā€”a veritable smorgasbord of classic, clear-cut APA violations.ā€

Ross said he approved the question because he said the Justice Department needed it for ā€œmore effective enforcementā€ of the Voting Rights Act. He subsequently testified before Congress that the DOJ had ā€œinitiatedā€ the request. However, evidence released during the trial repeatedly undercut the Trump administrationā€™s 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 ā€œnot 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 Trumpā€™s Justice Department hadnā€™t 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 ā€œvery 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 ā€œpolitical 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, ā€œIn 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 Kobachā€”at the timeĀ the vice chair of President Donald Trumpā€™s now-defunct Election Integrity Commissionā€”wrote to Ross ā€œat the direction of Steve Bannonā€ and said it was ā€œessentialā€ that the citizenship question be added to the census. Kobach wrote that the absence of a citizenship question ā€œleads to the problem that aliens who do not actually ā€˜resideā€™ in the United States are still counted for congressional apportionment purposes.ā€

Kobachā€™s correspondence with Ross contradicted the Trump administrationā€™s stated rationale for the questionā€”Kobach never mentioned the Voting Rights Act in his letterā€”and 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 ā€œno apparent interest in promoting more robust enforcement of the VRA,ā€ Furman found. ā€œWhile the Court is unable to determineā€”based on the existing record, at leastā€”what Secretary Rossā€™s 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. ā€œThe 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. ā€œSimilarly, 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 oathā€”a decision the Supreme Court had already blockedā€”but itā€™s 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 censusā€”and by extension, the future of American politicsā€”will look like over the next decade.

WE'LL BE BLUNT

It is astonishingly hard keeping a newsroom afloat these days, and we need to raise $253,000 in online donations quickly, by October 7.

The short of it: Last year, we had to cut $1 million from our budget so we could have any chance of breaking even by the time our fiscal year ended in June. And despite a huge rally from so many of you leading up to the deadline, we still came up a bit short on the whole. We canā€™t let that happen again. We have no wiggle room to begin with, and now we have a hole to dig out of.

Readers also told us to just give it to you straight when we need to ask for your support, and seeing how matter-of-factly explaining our inner workings, our challenges and finances, can bring more of you in has been a real silver lining. So our online membership lead, Brian, lays it all out for you in his personal, insider account (that literally puts his skin in the game!) of how urgent things are right now.

The upshot: Being able to rally $253,000 in donations over these next few weeks is vitally important simply because it is the number that keeps us right on track, helping make sure we don't end up with a bigger gap than can be filled again, helping us avoid any significant (and knowable) cash-flow crunches for now. We used to be more nonchalant about coming up short this time of year, thinking we can make it by the time June rolls around. Not anymore.

Because the in-depth journalism on underreported beats and unique perspectives on the daily news you turn to Mother Jones for is only possible because readers fund us. Corporations and powerful people with deep pockets will never sustain the type of journalism we exist to do. The only investors who wonā€™t let independent, investigative journalism down are the people who actually care about its futureā€”you.

And we need readers to show up for us big timeā€”again.

Getting just 10 percent of the people who care enough about our work to be reading this blurb to part with a few bucks would be utterly transformative for us, and that's very much what we need to keep charging hard in this financially uncertain, high-stakes year.

If you can right now, please support the journalism you get from Mother Jones with a donation at whatever amount works for you. And please do it now, before you move on to whatever you're about to do next and think maybe you'll get to it later, because every gift matters and we really need to see a strong response if we're going to raise the $253,000 we need in less than three weeks.

payment methods

WE'LL BE BLUNT

It is astonishingly hard keeping a newsroom afloat these days, and we need to raise $253,000 in online donations quickly, by October 7.

The short of it: Last year, we had to cut $1 million from our budget so we could have any chance of breaking even by the time our fiscal year ended in June. And despite a huge rally from so many of you leading up to the deadline, we still came up a bit short on the whole. We canā€™t let that happen again. We have no wiggle room to begin with, and now we have a hole to dig out of.

Readers also told us to just give it to you straight when we need to ask for your support, and seeing how matter-of-factly explaining our inner workings, our challenges and finances, can bring more of you in has been a real silver lining. So our online membership lead, Brian, lays it all out for you in his personal, insider account (that literally puts his skin in the game!) of how urgent things are right now.

The upshot: Being able to rally $253,000 in donations over these next few weeks is vitally important simply because it is the number that keeps us right on track, helping make sure we don't end up with a bigger gap than can be filled again, helping us avoid any significant (and knowable) cash-flow crunches for now. We used to be more nonchalant about coming up short this time of year, thinking we can make it by the time June rolls around. Not anymore.

Because the in-depth journalism on underreported beats and unique perspectives on the daily news you turn to Mother Jones for is only possible because readers fund us. Corporations and powerful people with deep pockets will never sustain the type of journalism we exist to do. The only investors who wonā€™t let independent, investigative journalism down are the people who actually care about its futureā€”you.

And we need readers to show up for us big timeā€”again.

Getting just 10 percent of the people who care enough about our work to be reading this blurb to part with a few bucks would be utterly transformative for us, and that's very much what we need to keep charging hard in this financially uncertain, high-stakes year.

If you can right now, please support the journalism you get from Mother Jones with a donation at whatever amount works for you. And please do it now, before you move on to whatever you're about to do next and think maybe you'll get to it later, because every gift matters and we really need to see a strong response if we're going to raise the $253,000 we need in less than three weeks.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate