Census citizenship question challenged by states

New York State Attorney General Eric T. Schneiderman

A week after California and the NAACP sued the Trump administration over a controversial new question about US citizenship to the 2020 census, 17 states, the District of Columbia, and six major cities filed the third major lawsuit against the administration on Tuesday, raising the stakes in the legal and political battle over the population count.

Civil rights advocates say the citizenship question is designed to inspire fear among immigrants and cause many respondents not to be counted, diminishing the political power and financial resources of the areas where they live.

New York Attorney General Eric T. Schneiderman – leading a coalition of 17 states, the District of Columbia, six cities and the bipartisan U.S. Conference of Mayors – filed a lawsuit to block the federal government from demanding citizenship information in the 2020 decennial Census.

Demanding citizenship information on the Census would suppress response in states with large immigrant populations, directly threatening those states’ fair representation in Congress and the Electoral College, as well as billions of dollars in critical federal funds for education, infrastructure, Medicaid, and more.

“One of the federal government’s most solemn obligations is a fair and accurate count of all people in the country, citizen and non-citizen alike,” said Schneiderman. “For decades, administrations from both parties have treated this constitutional requirement with the respect and reverence it deserves. Now, the Trump administration is breaking with that tradition – recklessly abandoning nearly 70 years of practice by demanding to know the citizenship status of each resident counted. With immigrant communities already living in fear, demanding citizenship status would drive them into the shadows, leading to a major undercount that threatens billions in federal funding for New York and our fair representation in Congress and the Electoral College. I’m proud to lead this coalition in the fight for a full and fair Census.”

The lawsuit, which was filed in the U.S. District Court for the Southern District of New York, was joined by the Attorneys General of New York, Connecticut, Delaware, Illinois, Iowa, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Virginia, Vermont, Washington, and the District of Columbia; the cities of New York City, Chicago, Philadelphia, Providence, San Francisco, and Seattle; and the bipartisan U.S. Conference of Mayors.

Under the Constitution, the Census Bureau has an obligation to determine “the whole number of persons in each state.”

Yet demanding citizenship information in the Census is expected to depress participation among immigrants, causing a population undercount that would disproportionately harm states and cities with large immigrant communities.

Non-citizens are counted for the purposes of federal funds, apportioning of congressional seats and Electoral College votes, and the drawing of state and local districts.

On December 12, 2017, the U.S. Department of Justice requested that the Census Bureau demand citizenship information in the 2020 census form sent to every household in the United States, even though the Census is supposed to count all persons—citizens and non-citizens alike.

The Department of Justice argued that the collection of such information was necessary to ensure proper enforcement of the 1965 Voting Rights Act. Yet as 18 other states argued in a letter sent to the Commerce Secretary in February, the demand would have precisely the opposite effect by driving down participation in immigrant communities—a concern that is even more acute in today’s political climate. The resulting undercount would deprive immigrant communities of fair representation when legislative seats are apportioned and district lines are drawn.

The lawsuit is brought under the Enumeration Clause of the U.S. Constitution, as this action by the Trump administration will impede an “actual Enumeration” required by the Constitution.

It is also brought under the Administrative Procedure Act, which permits courts to set aside unlawful or arbitrary and capricious agency decisions.

As the Census Bureau’s own research shows, the decision to demand citizenship information will “inevitably jeopardize the overall accuracy of the population count” by significantly deterring participation in immigrant communities, because of concerns about how the federal government will use citizenship information.

These concerns are amplified by Trump’s anti-immigrant rhetoric and pattern of actions that target certain communities.

In 1980, the Census Bureau rejected the addition of a citizenship question, saying, “Any effort to ascertain citizenship will inevitably jeopardize the overall accuracy of the population count. Obtaining the cooperation of a suspicious and fearful population would be impossible if the group being counted perceived any possibility of the information being used against them. Questions as to citizenship are particularly sensitive in minority communities and would inevitably trigger hostility, resentment, and refusal to cooperate.”

In 2009, all eight former directors of the Census Bureau dating back to 1979 – who served under both Democratic and Republican presidents – affirmed that a citizenship question would depress participation and lead to a significant undercount, undermining the purpose of the Census itself.

As today’s lawsuit describes, the administration’s decision is inconsistent with the Census Bureau’s constitutional and statutory obligations, is unsupported by the stated justification, departs from decades of settled practice without reasoned explanation, and fails to consider the availability of alternative data that can effectively serve the federal government’s needs.

The lawsuit also emphasizes the irreparable harm that will result from inaccuracies in the 2020 Census caused by demanding citizenship information. Hundreds of billions of dollars in federal funds are directly tied to demographic information obtained through the census, including the Highway Trust Fund and other Department of Transportation grants, Child Care Development Grants, and Medicaid. Consequently, inaccurate counts can potentially deprive states of much-needed funds designed to protect low-income and vulnerable communities.

The decennial census is also used to apportion seats in the House of Representatives, and each plaintiff state relies on population information from the Census Bureau to draw statewide redistricting plans for their Congressional and state legislative districts. Demanding citizenship information would cause disproportionate undercounts in communities with immigrant populations and therefore prevent plaintiff states from fulfilling the one-person, one-vote constitutional requirement, as well as create distributional inaccuracies in the data states use to draw district lines. 

In addition, the citizenship demand would depress Census participation within the states’ diverse immigrant and undocumented populations, leading to inaccurate responses and a significant undercount of the states’ residents. As a result, an undercount of population in states that are home to large immigrant communities will impair fair representation, a principle fundamental to the fabric of our democracy.

“A fair and accurate 2020 count is constitutionally mandated to ensure political power and resources remain with the people – where they belong. President Trump’s decision puts our amazing city of immigrants in jeopardy and threatens federal funding for infrastructure, health care and public safety in New York,” said New York City Mayor Bill de Blasio. 

“Make no mistake, the addition of a citizenship question to the 2020 census is an unconstitutional attempt to politicize the Census for partisan gains,” said Congresswoman Carolyn Maloney. “Every effort must be made to fight this thinly veiled attempt to wage an unconstitutional assault on our census. That’s why I’m proud to support this suit and I intend to lead an amicus brief of members of Congress in support of this effort. I’ve also introduced the 2020 Census IDEA act, to prevent this and any other last-minute changes that threaten the integrity of the census.”

“The goal of the U.S. census is to count every person living in this country, regardless of immigration status, so the government can most effectively serve the people. Adding an untested question on citizenship will silence noncitizens, including those with visas, and no doubt suppress the census data. Thus, states like New York with larger immigrant populations will once again feel the pinch and lose critical federal dollars. It’s a blatant attempt by this administration to undercount areas with large immigrant populations and we can’t allow that happen,” said Congressman Eliot Engel.  

“The census is one of the federal government’s fundamental obligations, and this politically-motivated change will make it harder to get an accurate count of residents within our borders and will scare many non-citizens further into the shadows for no reason. When we don’t get the census right, there are real consequences for our economy and the basic functioning of public services,” said Manhattan Borough President Gale A. Brewer. “Hate is a disease, and it twists and corrupts anything it touches, even the census.”

“We already strongly suspect that urban populations like Brooklyn have been chronically undercounted, and President Trump’s call for a citizenship question in the 2020 US Census will further undercut the accuracy of this critical count by discouraging the participation of immigrant Americans,” said Brooklyn Borough President Eric Adams. “This decennial process is hard enough without putting additional barriers in place.”

“Since becoming president, Donald Trump has he has not missed an opportunity to divide this country, building walls between the realities of the contributions that immigrants have made to our country while also spreading lies that cater to his alt-right base. This move has the potential to decrease participation in the 2020 Census in vulnerable communities, create a database that could be used to punish immigrant communities and cause New York City to lose federal resources,” said Bronx Borough President Ruben Diaz Jr.

State Senator Jose Peralta (D-Queens) said, “The citizen question on the Census 2020 is just another attack on our immigrant communities coming from Trump and his administration. No one should be using the census as a political tool, especially when the goal of the questionnaire is to get a real count of the population. These un-American, racist tactics will hurt us because it will provide a bad, inaccurate count, since many immigrants, out of fear, won’t participate.”

“The citizenship question threatens the accuracy of the census,” said Steven Rubenstein, Chairman of The Association for a Better New York. “ABNY is proud to stand with Attorney General Eric Schneiderman to fight this change to the census form that will discourage hard to count populations from participating, thereby depriving New York of our correct federal funding and congressional representation.”

“Not only will a citizenship question in the next census undermine the accuracy of the data we collect, it will put New York at risk of losing funding and representation. Even worse, it will target the immigrant communities who make the city we love diverse,” said Julie Samuels, Executive Director, Tech:NYC.

“It is impossible to overstate the importance of an accurate census count for the political and economic health of our state and our nation,” said Susan Lerner, Executive Director of Common Cause/NY. 

 

 


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