By: David Zvirman, Staff Writer
Over the past few months, the Department of Commerce’s (DOC) decision to add a citizenship question to the upcoming 2020 census sparked a lot of debate.[1] This debate culminated on January 15, 2019, when New York District Judge Jesse Furman struck down the DOC’s attempt to add such a question.[2] While this decision is only the first step in a legal battle that will likely end up before the Supreme Court,[3] it is important to look at what the decision actually held. This article will examine and summarize the findings of facts and conclusions of law in the opinion,[4] to see what it truly provides.
The Court initially found that an assertion by Secretary of Commerce William L. Ross Jr. that the question itself was not even considered until a December 2017 request came from the Department of Justice, DOJ, via letter, was inaccurate, if not an outright lie.[5] In coming to this conclusion the Court relied on emails from May 2017 where Ross requested status updates on his “months old request” for a citizenship question;[6] August 2017 emails to Ross’s Deputy Chief of Staff, showing that research was being done to find a legal justification for the addition of the question;[7] and evidence that Ross personally went to then Attorney General Sessions to request that he have the DOJ request the question be added.[8] All of this led to the Court to conclude that Ross’s claim that the question was needed by the DOJ to enforce the Voting Rights Act was untrue.[9] From the record it appeared that Ross requested the question, had his staff research a justification, then once his staff picked the best justification, try to get the DOJ to play along.[10]
The Court then went into its findings regarding the various effects the proposed question may have.[11] The Court found that the addition of the question in the 2020 census would cause an estimated net decline in self-responses among noncitizen households of at least 5.8%, and that the actual decline would likely be higher.[12] Furthermore, the Court found that the Census Bureau’s process of Non-Response Follow-Up would not cure the differential drop in self-responses and would only increase the degradation of the census results.[13] In addition, the Court also found that a citizenship question would or would likely “cause several jurisdictions to lose seats in the next congressional apportionment and that it [would] cause another set of jurisdictions to lose political representation in the next round of intrastate redistricting.”[14] This overall undercount of people, the Court found, would also lead to states losing access to federal funds that are allocated based on census data.[15] Finally, the Court held that a citizenship question would “harm the quality of the resulting census data regardless of whether it also leads to a net differential undercount of people who live in noncitizen and Hispanic households.”[16]
The Court then went on to discuss the various claims the plaintiffs[17] made, including violations of the Administrative Procedure Act, APA, and violations of Due Process.[18] Regarding Ross’s decision to include the question, the Court found that he acted arbitrarily and capriciously, in violation of the APA.[19] It found that Ross’s claims that the question would not decrease response rates was “simply untrue,” and ran counter to the Census Bureau’s own data on the issue.[20] Further, it found Ross’ justification for the question[21] was purely pretextual and was completely contradicted by the evidence on record.[22] The Court found, however, the evidence did not support the plaintiffs’ claim that Ross’s actions violated the equal protection component of the Fifth Amendment’s Due Process Clause.[23] It found the plaintiffs failed to show by a preponderance of the evidence that Ross had a discriminatory motivation in reinstating the citizenship question in the next census.[24]
Finally, the Court concluded its opinion with a discussion of the various remedies sought by the plaintiffs.[25] In its discussion the Court held that an injunction barring the DOC from including a citizenship question in the next census was appropriate.[26]
In conclusion, this is only a brief summary of the findings of Judge Furman regarding the suit over the inclusion of a citizenship question in the 2020 census. For a fuller understanding of the case itself and the conclusions made by the court please read the full court document in the link provided in footnote 4 of this article.
Sources:
[1]Elizabeth Hartfield and George Wallace, Federal judge strikes down effort to add citizenship question to census, CNN (1/15/19). Available at https://www.cnn.com/2019/01/15/politics/census-citizenship-new-york/index.html; Corinne Ramey, Trial Begins Over Proposed Census Citizenship Question, THE WALL STREET JOURNAL (11/5/18). Available at https://www.wsj.com/articles/trial-begins-over-proposed-census-citizenship-question-1541452040.
[2]Hartfield,Federal judge strikes down effort to add citizenship question to census; Quinn, Federal judge blocks Trump administration from adding citizenship question to 2020 census.
[3]SeeHartfield, Federal judge strikes down effort to add citizenship question to census.
[4]To see the full 277-page court document go to https://www.brennancenter.org/sites/default/files/legal-work/2019-01-15-574-Findings%20Of%20Fact.pdf
[5]State of New York, et al. v. United States Department of Commerce, et al., 18-CV-2921, Pg. 94-102.
[6]Id.at 95.
[7]Id.at 96.
[8]Id.at 99.
[9]Id.at 99-102
[10]Id.
[11]Id.at 109-48
[12]Id.at 119.
[13]Id.at 126.
[14]Id.at 137.
[15]Id.at 142.
[16]Id.at 146-47.
[17]The Court recognized two sets of plaintiffs in this action: (1) “Governmental Plaintiffs” consisting of a coalition of eighteen states and the District of Columbia, fifteen cities and counties, and the United States Conference of Mayors; (2) “NGO Plaintiffs” consisting of “a coalition of non-governmental organizations.” Id.at 6.
[18]Id.at 194-260.
[19]Id.at 225-236.
[20]Id.at 225-226.
[21]That it was added at the request of the DOJ to help them better enforce the VRA.
[22]State of New York, at 245-243.
[23]Id.at 253-63.
[24]Id.at 262-63.
[25]Id.at 263-75.
[26]Id.at 275.
