Federal District Judge Finds Proposed Citizenship Question on Census Unconstitutional

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In his 126 page opinion in California v. Ross, United States District Judge Richard Seeborg has found the decision of Secretary of Commerce Wilbur Ross to add a citizenship question to the 2020 census unlawful under the Administration Procedure Act and unconstitutional under the Enumeration Clause.

Recall that California filed its complaint in March 2018, including a claim that the Constitution requires the “actual Enumeration” of all people in each state every ten years for the sole purpose of apportioning representatives among the states. U.S. Const. art. I, § 2, cl. 3, and amend. XIV, § 2, and that by including the citizenship question on the 2020 Census, Defendants are in violation of the “actual Enumeration” clause of the Constitution because the question will diminish the response rates of non-citizens and their citizen relatives.  

Recall also that New York filed a similar complaint, which led to the 277 page decision in New York v. United States Department of Commerce rendered in January 2019, which is now scheduled for oral arguments at the United States Supreme Court on April 23 on the issue of whether the Secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq.  An additional issue in the New York litigation — and the issue on which the United States Supreme Court first granted certiorari — involves the refusal of Secretary Ross to be deposed regarding his rationales for adding the citizenship question.

In California v. Ross, Judge Seeborg's opinion concluded that the plaintiff state of California, as well as plaintiff counties and cities in California, and the organization, Black Alliance for Just Immigration, satisfied the requirements for Article III standing. Important to this determination are questions of whether there would be actual injury in fact if a citizenship question were added to the census. Judge Seeborg extensively discussed the affidavits and experts regarding the relationship between the question and people responding to the census, an issue that dovetails with the constitutional Enumeration Clause claim. Judge Seeborg generally concluded there was Article III standing.

The major portion of Judge Seeborg's opinion is devoted to the Administrative Procedure Act. Judge Seeborg's concluded that "one need look no further than the Administrative Record to conclude that the decision to include the citizenship question was arbitrary and capricious, represented an abuse of discretion, and was otherwise not in accordance with law." However, Judge Seeborg's opinion also separately analyzed "extra-record" including

the absence of any effort to test the impact of the addition of the citizenship question to the census, the deviation from the Census Bureau’s usual process for adding new questions to the census, the troubling circumstances under which the DOJ’s request letter was drafted and procured, and Sessions’ order prohibiting DOJ staff from meeting with Census Bureau officials to discuss alternative sources of data that could meet DOJ’s VRA [Voting Rights Act] enforcement needs.

As to the Enumeration Clause, Judge Seeborg wrote:

The analysis of the Enumeration Clause claim similarly involves evidence beyond the four corners of the Administrative Record. As a general proposition, the decision to include a specific question on the census is committed to the discretion of the Commerce Secretary and does not implicate the constitutional command that all persons in each state be counted every ten years. However, if the Secretary’s decision to include a question affirmatively interferes with the actual enumeration and fulfills no reasonable governmental purpose, it may form the basis for a cognizable Enumeration Clause challenge.

Importantly, in finding the Enumeration Clause violation, Judge Seeborg concluded that the inclusion of a citizenship question

will materially harm the accuracy of the census without advancing any legitimate governmental interest. This is no ordinary demographic inquiry. The record reveals that the inclusion of the citizenship question on the upcoming census will have a unique impact on the Census Bureau’s ability to count the public, to the point where the inclusion of this question is akin to a mechanics-of-counting-type issue. In short, Secretary Ross’s decision to add the citizenship question to the 2020 Census undermines the “strong constitutional interest in [the] accuracy” of the census, and does so despite the fact that adding this question does not advance any identifiable government purpose.

[citation omitted]. The remedy for this constitutional violation is not a simple vacatur as it is for the APA injunction, but a nationwide injunction against including the citizenship question on the 2020 Census:

The record in this case has clearly established that including the citizenship question on the 2020 Census is fundamentally counterproductive to the goal of obtaining accurate citizenship data about the public. This question is, however, quite effective at depressing self-response rates among immigrants and noncitizens, and poses a significant risk of distorting the apportionment of congressional representation among the states. In short, the inclusion of the citizenship question on the 2020 Census threatens the very foundation of our democratic system—and does so based on a self-defeating rationale. In light of these findings, Defendants do not get another bite at the apple. Defendants are hereby enjoined from including the citizenship question on the 2020 Census, regardless of any technical compliance with the APA.

Given the nationwide injunction, the fast approaching deadlines for preparation of the 2020 Census, and the already-scheduled April arguments before the United States Supreme Court, the DOJ attorneys will probably act quickly to seek review of this decision.

[image: Los Angeles Census materials, 1920, via]