Judge allows lawsuit against Trump’s census citizenship question to proceed

A federal district court judge on Thursday denied a request from the Trump administration to dismiss a lawsuit challenging its decision to add a citizenship question to the 2020 census. 

Judge Jesse Furman on the U.S. District Court for the Southern District of New York said the challengers had plausibly alleged Commerce Secretary Wilbur Ross’s decision to reinstate the citizenship question was motivated at least in part by “discriminatory animus” and will result in a discriminatory effect.

He also ruled that challengers had “plausibly” alleged there is a “heightened risk in the current political climate” that the question will lead to a lower response rate “because of President Trump’s anti-immigrant rhetoric.”

New York and 16 other blue states filed a lawsuit in April, challenging the constitutionality of a question about citizenship status, arguing the question will lead to a skewed count. 

The New York Immigration Coalition, Casa De Maryland, American-Arab Anti-Discrimination Committee, ADC Research Institute and Make the Road New York also sued, and the cases were consolidated.

{mosads}In his ruling Wednesday in the two cases, Furman said evidence shows the administration departed from the “normal procedural sequence” in adding the question, including overruling career staff who strongly objected to it, failing to extensively test the reintroduction of the question and ignoring the recommendation of the advisory committee.

The question about citizenship status has not appeared on the centennial data collection form since 1950.

Ross announced in March that he was granting a request from the Department of Justice (DOJ) to reinstate the citizenship question to help the agency better enforce the Voting Rights Act. The decision led to flurry of lawsuits in courts across the country.

The results of the census are used to redraw House districts, and the number of House seats each state receives also plays a part in determining each state’s number of electoral votes. 

Given the administration’s push to reduce the number of immigrants, Democrats and civil rights advocates say the question would likely keep people in immigrant communities from responding, potentially lowering an area’s official population count. 

But Furman said it now appears it was Ross, not DOJ, that pushed for the question.

“In his memorandum, Secretary Ross stated that he ‘set out to take a hard look’ at adding the citizenship question ‘following receipt’ of a request from the Department of Justice on December 12, 2017,” he wrote.

“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.’”

Though Furman said that doesn’t necessarily mean Ross added the question to discriminate against immigrant communities, he said “it may be quite persuasive.”

The challengers argue that Trump’s discriminatory comments toward immigrants are proof of discriminatory intent. Though Furman noted Trump’s remarks weren’t related specifically to the citizenship question, he said the challengers have “plausibly” claimed that Trump was personally involved in the decisionmaking.

While Furman ruled the challengers’ case can proceed under their claims that the question violated the Due Process Clause of the Constitution and the Administrative Procedure Act, he dismissed their claim that Ross had violated the Enumeration Clause of the Constitution. The clause calls for an actual count of the population every 10 years.

Furman said the court “is compelled to conclude that the citizenship question is a permissible — but by no means mandated — exercise of the broad power granted to Congress and, in turn, the Secretary” under the Enumeration Clause. 

He based his decision in part on the fact that there’s a longstanding, historical practice of using the census for more than a mere headcount.

Furman noted that during the 19th century the census asked about occupation, the value of real estate owned and whether members of a household were “deaf,” “dumb” or “blind.” 

“By itself, the foregoing history makes it difficult to maintain that asking about citizenship on the census would constitute a violation of the Enumeration Clause,” he said. “Taking that position becomes untenable altogether in light of the undeniable fact that citizenship status has been a subject of the census for most of the last two hundred years.”

Furman warned that his decision to let the case proceed does not mean the challengers will ultimately prevail.

“As noted, the Enumeration Clause and the Census Act grant [Ross] broad authority over the census, and plaintiffs may not ultimately be able to prove that he exercised that authority in an unlawful manner,” he said.

“Put another way, the question at this stage of the proceedings is not whether the evidence supports plaintiffs’ claims, but rather whether plaintiffs may proceed with discovery and, ultimately, to summary judgment or trial on their claims.”

New York Attorney General Barbara Underwood (D) called the court’s decision a big win for New Yorkers.

“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,” she said. 

A spokesperson for the Commerce Department said the agency is pleased the court found that 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,” they said. “The Secretary’s and the Census Bureau’s priority remains conducting a complete and accurate 2020 Census.”

DOJ spokesman Devin O’Malley said the department looks forward to continuing its defense of the citizenship question’s reinstatement.

–Updated at 2:36 p.m.