Judge allows lawsuit against citizenship question on the 2020 census to proceed

Judge Jesse Furman rejected the government’s attempt to dismiss the lawsuit.

July 26, 2018, 9:05 PM

Commerce Secretary Wilbur Ross had the authority to reintroduce the citizenship question on the 2020 census but, in exercising that authority, may have violated the rights of plaintiffs who are now suing, a federal judge ruled Thursday.

U.S. District Judge Jesse M. Furman for the Southern District of New York rejected the government’s attempt to dismiss the lawsuit, which is challenging the Trump administration's decision to add the question to the census.

Furman stated that the plaintiffs “plausibly allege that Secretary Ross’ decision to reinstate the citizenship question on the 2020 census was motivated by discriminatory animus and that its application will result in a discriminatory effect.”

Seventeen states, six cities, the U.S. Conference of Mayors and several immigrant rights advocacy groups claimed in a lawsuit filed in April that asking citizenship status as part of the census is unlawful and could undercount populations, thereby threatening billions in federal funds which relies on accurate population counts.

Effectively, Furman ruled, Ross had the power to add the question but Furman's allowing the plaintiffs to question the purpose behind the decision.

“The citizenship question is permissible -- but by no means mandated -- exercise of the broad power granted to Congress and, in turn, the secretary pursuant to the Enumeration Clause of the Constitution,” Furman wrote in his decision.

However, Furman wrote that Ross “cannot exercise his authority in a manner that would violate individual constitutional rights, such as the right to equal protection of the laws.”

Plaintiffs sufficiently argued in the lawsuit that the inclusion of the citizenship question would have a discriminatory effect in Latino, Asian-American, Arab-American and other immigrant communities of color because the non-response rate is likely to be higher in those communities, Furman wrote.

“Today’s decision is a big win for New Yorkers and everyone across the country who cares about a fair and accurate census,” New York Attorney General Barbara Underwood said in a statement.

PHOTO: Commerce Secretary Wilbur Ross, testifies on Capitol Hill in Washington, June 22, 2018.
Commerce Secretary Wilbur Ross, testifies on Capitol Hill in Washington, June 22, 2018.
Manuel Balce Ceneta/AP

The plaintiffs successfully fought to examine Trump administration documents that indicated the Commerce Department “deviated from their standard procedures in hastily adding the citizenship question,” Furman wrote.

The last time the census asked respondents about their citizenship status was in 1950. Since then, the U.S. Census Bureau and former Bureau officials have opposed periodic efforts to reinstate a citizenship question on a universal basis.

In March, Ross directed the Census Bureau to reinstate the citizenship question on the 2020 census. He said he included it to fulfill a request letter from the U.S. Justice Department, which argued it needed better citizenship data to enforce the Voting Rights Act.

President Donald Trump took credit for this direction shortly after the announcement in an email his campaign sent to supporters: “President Trump has officially mandated that the 2020 United States Census ask people living in America whether or not they are citizens."

However, on Thursday, Furman questioned that rational stating: “There is no indication in the record that the Department of Justice and civil rights groups have ever, in the 53 years since the Voting Rights Act was enacted, suggested that citizenship data collected as part of the decennial census would be helpful, let alone necessary, to litigate such claims.”

The parties will move forward with discovery as the lawsuit now progresses.