The 2020 decennial census is scheduled to begin on April 1, 2020, but several cases challenging the Administration’s decision to include a citizenship question in the census are putting the Administration’s June 30, 2019, “go to print” deadline at risk. The question asks, “Is this person a citizen of the United States?”
The case that is furthest along was filed in U.S. District Court for the Southern District of New York, New York, et al. v. U.S. Department of Commerce. Plaintiffs in 18 states, the District of Columbia, 15 cities and counties, the U.S. Conference of Mayors, and a group of NGOs filed suit challenging the inclusion of the citizenship question. After a bench trial, the judge, in a 277-page opinion, enjoined the U.S. Department of Commerce from including that question on the census primarily because of violations of the Administration Procedures Act (APA). But, on January 25, 2019, the Administration filed an appeal asking the U.S. Supreme Court to review the case directly because the Census Bureau needed to make its June 30th deadline. On February 15, 2019, the Supreme Court granted that request and set oral argument for April 23, 2019.
On March 6, following in the footsteps of the New York case, California federal Judge Richard Seeborg, in a 126-page opinion, blocked the Administration from adding the citizenship question to the census not only because of APA violations, but also on the basis of the Constitution. That court held that the citizenship question violated the “enumeration clause,” which requires an “actual enumeration” of the country’s population. The court said the question would discourage participation and thereby lead to an inaccurate count. The Administration has not yet acted to appeal this case.
Meanwhile, in a federal court in Maryland, the Mexican American Legislative Caucus, the Senate Hispanic Caucus, and several non-profit advocates for Latino and Asian residents are arguing that the inclusion of the citizenship question will improperly lead to an undercount of immigrants and people of color. The plaintiffs also allege a conspiracy to include the question based “on animus against Hispanics and immigrants.” The case is still pending.
All of the plaintiffs in these cases allege that a great deal is at stake because the inclusion of the citizenship question will discourage participation – particularly by immigrants – and affect:
- The boundaries of Congressional Districts;
- The number of Congressional Representatives per state;
- The number of Electoral College votes per state; and
- The amount of federal funding to states for programs, including low-income housing, medical assistance, and infrastructure projects.
Even some Census Bureau officials opined that the question will chill participation. Judge Seeborg stated, “In short, the inclusion of the citizenship question on the 2020 census threatens the very foundation of our democratic system . . . .”
We will continue to follow the progress of these litigations and provide updates as they become available.