A federal judge blocked the Trump Administration’s plan to put a question about citizenship on the 2020 census, which will help determine U.S. elections, congressional seats and federal funding decisions for a decade.
The ruling comes after a two-week trial in Manhattan that the government sought more than a dozen times to derail. The Supreme Court may have the last word. It’s hearing an appeal related to the trial in February in hopes of handing down a decision by June, before the Census Bureau has to finalize its questionnaire.
The ruling is a blow to what critics of the question said was a Trump administration effort to undercount Hispanics and other minorities.
“Hundreds of thousands – if not millions – of people will go uncounted in the census if the citizenship question is included,” U.S. District Judge Jesse Furman said in a 277-page opinion. “In arriving at his decision as he did, Secretary Ross violated the law,” the judge said, adding the secretary also “violated the public trust.”
The judge also ruled that Commerce Secretary Wilbur Ross’ rationale for the change — that it was to help promote enforcement of the Voting Rights Act — was “pretextual.” Furman said the decision was “arbitrary and capricious, in violation of the Administrative Procedures Act, a federal law that sets requirements for making changes to agency regulations.
The Justice Department said it was disappointed and still reviewing the ruling.
“Our government is legally entitled to include a citizenship question on the census and people of the United States have a legal obligation to answer,” Kelly Laco, a Justice Department spokeswoman, said in a statement. “Reinstating the citizenship question ultimately protects the right to vote and helps ensure free and fair elections for all Americans.”
Furman, who held the trial without a jury, dealt with the first of several lawsuits filed by dozens of states and cities to block the question from the once-a-decade survey, where it hasn’t appeared since 1950. As the first, it will encourage the plaintiffs in similar lawsuits in California and Maryland, which are likely to go to trial this year, said Margo Anderson, a retired professor of history and urban studies at the University of Wisconsin, who opposes the question.
“This ruling is a forceful rebuke of the Trump administration’s attempt to weaponize the census for an attack on immigrant communities,” the American Civil Liberties Union, which helped bring the case, said in a statement.
The states and cities, which were blocked from taking pretrial testimony from Ross, failed to prove the true intent of adding the question was to discriminate against immigrants and minorities, Furman said. But that wasn’t enough to derail the lawsuit.
The Administrative Procedures Act requires an agency to “consider all important aspects of a problem,” study relevant evidence and come to a conclusion supported by it, comply with procedures and laws and explain the facts and reasons for the decision, Furman said. Ross’ decision “fell short on all these fronts,” the judge said.
Federal law gives the commerce secretary the full authority to determine what questions will be used on the survey, Hans von Spakovsky, a senior legal fellow at the conservative Heritage Foundation in Washington who manages the group’s Institute for Constitutional Government. A citizenship question was first asked in 1820 and is currently included on the annual American Community Survey, which goes to about one out of every 36 households, he said.
The ruling will “prevent us from getting accurate census data on citizens and noncitizens from across the country — since the ACS is limited in scope — which is vital in enforcement of the Voting Rights Act, distribution of federal funds and having an informed debate about immigration policy,” von Spakovsky said.
Massachusetts Attorney General Maura Healey welcome the ruling in a statement on Twitter.
The case began when New York and a group of states, cities and public-interest groups sued in April claiming the administration’s plan to question people about their citizenship was aimed at intimidating illegal immigrants and other noncitizens and depressing their official numbers.
Underlying the plaintiffs’ case was the concern that noncitizens, mindful of the president’s rhetoric on immigrants, might decide not to answer the survey, worried the data could be used by federal immigration agents to target them or someone in their household — even if they are in the U.S. legally. About 14 percent of the U.S. population lives in households with one or more noncitizens, according to William Frey, a senior fellow at the Brookings Institution and an expert on the census, who isn’t involved in the case but opposes the use of the question.
The Justice Department filed numerous unsuccessful requests to block or delay the trial, prompting Furman to call its efforts “puzzling, if not sanctionable” and to say they showed an “extraordinary lack of respect” for judicial norms. During the trial, the government argued that it’s up to the Census Bureau, not Furman, to determine what’s on the survey, and that if fewer people in immigrant communities respond to it, officials can use other means, such as government records and statistical modeling, to estimate their numbers.
Ross, whose department includes the bureau, claimed the Justice Department needs the citizenship question to enforce the Voting Rights Act. At the Supreme Court’s hearing in February, the justices will weigh whether Ross should be required to testify as well as Furman’s decision to consider evidence outside the official Census Bureau administrative record. As a result of Furman’s ruling, the high court may decide to examine additional questions related to the census.
New York and the other plaintiffs say the government has pursued voting rights cases for decades without putting a citizenship question on the once-a-decade census sent to every household, and that its voting rights claim is just a pretext for an anti-immigration agenda. Matthew Colangelo, a lawyer with the New York State attorney general’s office, argued that including the question could “permanently impair core elements of our constitutional democracy” and that the trial’s outcome “will affect every community in this country.”
The agency plans to run a test in June to determine how the addition of the citizenship question will affect response rates and whether it will need to hire more staff for in-person follow-up at households that don’t respond.
The case is State of New York v. U.S. Department of Commerce, 18-cv-2921, U.S. District Court, Southern District of New York (Manhattan).
(c) 2019, Bloomberg · Bob Van Voris, Chris Dolmetsch