Judge rules census citizenship question sought by Trump administration is unlawful

A federal judge on Tuesday rejected the Trump administration's plan to add a U.S. citizenship question to the 2020 census, the first ruling in a handful of lawsuits nationwide that claim the question will hurt immigrants.

U.S. District Judge Jesse Furman in Manhattan said U.S. Commerce Secretary Wilbur Ross concealed his true motives in adding the question last March, ostensibly to help the government enforce the federal Voting Rights Act. Only U.S. citizens can legally vote in federal elections.

"[Ross] failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices," Furman wrote in his 277-page opinion.

Among other things, the judge said, Ross didn't follow a law requiring that he give Congress three years notice of any plan to add a question about citizenship to the census.

Ross proposed reinstating the citizenship question last March 26, ostensibly at the request of the U.S. Department of Justice, to better police potential voter discrimination.

The plaintiffs — 18 U.S. states, 15 cities and various civil rights groups — said that asking census respondents whether they are U.S. citizens will frighten immigrants and Latinos into abstaining from the count.

That could cost their mostly Democratic-leaning communities representation in the U.S. Congress, as well as their share of some $800 billion a year in federal funding.

Census forms to be printed soon

Furman's decision will almost certainly be appealed, and could wind up before the Supreme Court this year.

Kelly Laco, a Justice Department spokesperson, said the administration was "disappointed," adding that the "government is legally entitled to include a citizenship question on the census, and people in the United States have a legal obligation to answer."

Sen. Jeff Merkley of Oregon and Washington congresswoman Pramila Jayapal were among the Democrats hailing the ruling on social media. Merkely said that the citizenship question "has no business in the 2020 Census."

Furman ruled after hearing a nonjury trial that ended in November. The Supreme Court rejected a bid by the Trump administration to halt the trial — over the objections of justices Samuel Alito, Neil Gorsuch and Clarence Thomas — but blocked the deposition of Ross.

The Supreme Court will hear oral arguments on Feb. 19 about the scope of evidence heard at the New York trial, though not on the legitimacy of the citizenship question itself.

Final census forms are due to be printed by May 2019.

There has not been a census question about citizenship status since 1950. The plaintiffs have said that in recent decades Census Bureau officials have opposed adding a citizenship question because of the risk of driving down response rates and undercounting the U.S. population. 

The U.S. Constitution mandates a census every 10 years.

It was revealed at trial that Ross chose not to heed recommendations from experts — including from within the Census Bureau itself — who said adding the question would lead to an undercount and hurt data quality.

Furman said Ross and his aides behaved "like people with something to hide," leading to the "inescapable" conclusion that they "did have something to hide."

Ross testified at a March 2018 congressional hearing that politics played no role in the decision, initially testifying under oath that he hadn't spoken to anyone in the White House on the subject.

Later, however, Justice Department lawyers submitted papers saying Ross remembered speaking in spring 2017 about adding the question with former senior White House adviser Steve Bannon and with then-Attorney General Jeff Sessions.

The ruling on the citizenship question means the Trump administration will have to keep litigating if it wants to preserve what has become one of the most controversial tenets of its hawkish immigration policies.

Trump has on several occasions promoted the theory that millions of non-citizens cast votes in the 2016 election and other votes, although studies have not found a significant voter fraud problem. The White House established a commission to tackle the issue in May 2017, but several states, suspicious of motives, balked at requests to provide voter information.

The commission was quietly disbanded in 2018.

At least five other lawsuits seeking to quash the citizenship question remain pending, including a trial that got underway last week in San Francisco.