Commerce Hopes to Derail Lawsuits on Census Citizenship Question

The decision in March by Commerce Secretary Wilbur Ross to add a controversial citizenship question to the 2020 census has provoked multiple lawsuits, one of which got a key boost this week when a New York judge allowed discovery to proceed.

Judge Jesse Furman of Manhattan’s Southern District accepted the request from New York Attorney General Barbara Underwood on behalf of 18 states and more than a dozen localities to move forward with the action to obtain additional internal documents that helped determine how Commerce arrived at the decision to add the question, as the Washington Post reported.

A Commerce Department spokesman told Government Executive on Thursday that the government still hopes to prevail in this and some half-dozen related suits. “We are disappointed that the court in New York did not defer fact discovery until after a ruling on a motion to dismiss,” the spokesman said. “We are confident that the plaintiffs’ case is without merit, that any allegations of bad faith are specious, and that we will prevail in court. We look forward to continuing to work with the Census Bureau to conduct a complete and accurate 2020 census.”

The Trump administration has argued that restoring a question about citizenship last used in the 1950 census is needed to combat voter fraud, noting that it has routinely appeared as part of the annual American Community Survey that goes out to only a portion of the country.

Immigrants’ advocates and civil rights point to research by the Census Bureau itself warning that inclusion of the question deters cooperation from undocumented residents, which can mar accuracy in census results that are used to measure populations and allocate government benefits.

Commerce Secretary Ross, in a May speech at the National Press Club, said the benefits of the controversial citizenship question outweighed the fears that including it would suppress response rates in immigrant-heavy communities. He added that “61 million families have already been exposed to the citizenship question” via the American Community Survey.

But a batch of 1,300 documents released by Commerce in June in response to suits and Democratic lawmaker requests contain evidence contradicting a Ross statement to Congress that his decision to add the question was a response to Justice Department concerns about ineligible voters. As reported by NPR, memos suggest that Ross was already considering adding the question months earlier in discussions with Trump political adviser Steve Bannon and Kansas Secretary of State Kris Kobach, who led President Trump’s now-expired voter fraud investigation.

Also included was a memo from the Census chief scientist warning of higher non-response rates and heavy costs of the new question.

The demands for documents from Commerce also came from Democratic lawmakers, some of whom may try to block funding for the added question. “Even this limited document production reveals that the Trump Administration overruled the warnings of career experts at the Census Bureau, and now we need to know why,” said Rep. Elijah Cummings, D-Md., ranking member of the House Oversight and Government Reform Committee, on June 9. “For months, we have been asking our Republican colleagues to join us in obtaining documents about the Trump administration’s sudden decision to add an untested new citizenship question to the census, and for months they have been telling us to wait until this week—when all of these documents were supposed to be turned over. Unfortunately, the documents we received are severely inadequate and include only a fraction of the documents we requested in order to fulfill our constitutional oversight responsibilities. It is time for congressional Republicans to stop using private litigation as an excuse not to do our job in Congress.”

Panel majority member Mark Meadows, R-S.C., agreed that Commerce should turn over all documents, but envisioned a longer time frame for any probe.

Meanwhile, more than 150 civil rights groups under the Leadership Conference on Civil and Human Rights in a friend-of-the-court brief urged the federal court to strike down the added question.

Their statement said that “not only is the constitutionally mandated census central to apportioning political power at every level of government, but the data collected also influence the annual allocation of more than $800 billion in federal money, along with countless policy and investment decisions by government agencies, nonprofit organizations, and private enterprise. Given its foundational importance to American government and society, the census must be above partisan politics. The misguided decision to reverse seventy years of consistent census practice and insert an untested citizenship question undermines the integrity of the count, damages our communities, and violates the Census Bureau’s constitutional and statutory duties to conduct a full enumeration of the U.S. population.”

The New York judge gave the Commerce and Justice Departments until July 23 to produce more documents on the decision to add the question.