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Analysis

The Census Citizenship Question Trial Starts Monday

Here are 5 things you should know about it.

November 1, 2018

Trial begins Monday in a Manhat­tan federal court in two of the cases chal­len­ging the Trump admin­is­tra­tion’s contro­ver­sial decision to add a citizen­ship ques­tion to the 2020 census. Here’s what you need to know:

1. What are these cases about?

In March of this year, Commerce Secret­ary Wilbur Ross announced a decision to add a citizen­ship ques­tion to the 2020 census, saying that citizen­ship data is needed to enable the govern­ment to enforce the Voting Rights Act.

Seven­teen states, the District of Columbia, several muni­cip­al­it­ies, and a coali­tion of advocacy groups have sued to block the ques­tion.

Since the outset, Secret­ary Ross’s decision has been mired in contro­versy. Census experts and community lead­ers say the ques­tion will discour­age people from filling out the census and lead to an under­count, which would have harm­ful effects for years to come. (More on those harms below.) 

There is also substan­tial evid­ence that the decision was polit­ic­ally motiv­ated and made in bad faith. Indeed, Secret­ary Ross’s story about why he decided to add the ques­tion has been slowly unrav­el­ing as the cases have developed. In the March memo announ­cing the decision to add the ques­tion, Ross claimed that he was adding the ques­tion to satisfy a Decem­ber 2017 request from the Justice Depart­ment for more citizen­ship data to enforce provi­sions of the Voting Rights Act related to the draw­ing of minor­ity districts. Ross doubled down on that claim when he told Congress under oath that the Justice Depart­ment had initi­ated the request for the ques­tion. He also told Congress that no one in the White House had been involved. 

But docu­ments that the Trump admin­is­tra­tion has turned over show Ross ponder­ing the ques­tion almost a year before he received the Justice Depart­ment’s Decem­ber 2017 request. And last June, Ross changed his offi­cial story, admit­ting that he had in fact been consid­er­ing the ques­tion since he became secret­ary in Febru­ary 2017.

There’s also evid­ence that polit­ical consid­er­a­tions drove Ross’s decision to add the ques­tion. Emails show Kris Kobach — Kansas secret­ary of state and a member of the Trump admin­is­tra­tion’s discred­ited voter fraud commis­sion — advoc­at­ing for the ques­tion to combat “the prob­lem” of count­ing noncit­izens “for congres­sional appor­tion­ment purposes.” And in a recent filing, Ross confessed that he spoke to White House adviser Steve Bannon about the ques­tion as early as spring 2017.

2. What issues will the trial cover?

The plaintiffs contend that the Commerce Depart­ment’s decision to add the ques­tion viol­ated the Admin­is­trat­ive Proced­ure Act — a law that regu­lates how federal agen­cies can make decisions — and the Fifth Amend­ment to the U.S. Consti­tu­tion, which guar­an­tees every­one equal protec­tion under the law. A few argu­ments figure prom­in­ently in their cases.

First, the plaintiffs argue that Ross’s stated reas­ons for adding the citizen­ship ques­tion were not his real reas­ons for doing so, as docu­ments, includ­ing the ones mentioned above, strongly suggest. That’s a big prob­lem for the Commerce Depart­ment because the law requires federal agen­cies to make their decisions for valid, non-pretextual reas­ons.

Second, the plaintiffs emphas­ize that the Census Bureau has not taken any of the steps it usually takes before adding a ques­tion to the census. The law requires the Census Bureau to test any poten­tial change to the census to find out whether the change could affect census response rates and accur­acy. But the Census Bureau has spent no time test­ing the citizen­ship ques­tion. The addi­tion of the citizen­ship ques­tion, in fact, came very late in the census design process.

Third, the plaintiffs claim that the Trump admin­is­tra­tion is using the ques­tion to purpose­fully discrim­in­ate against immig­rant communit­ies of color, espe­cially Latino and Asian communit­ies.

To support these argu­ments, the plaintiffs will rely heav­ily on testi­mony from experts in the fields of polit­ical science, voting rights, and Census Bureau proto­cols. Other experts includ­ing stat­ist­i­cians, civil-rights groups, busi­nesses, and former Census Bureau direct­ors have filed friend-of-the-court briefs support­ing the plaintiffs.

The Trump admin­is­tra­tion’s main defense is that the plaintiffs haven’t shown that the ques­tion will harm them, and they thus don’t have the right to bring the courts into this dispute. The admin­is­tra­tion also argues that the court should uphold Ross’s decision because he gave a facially valid reason for it (aiding in enforce­ment of the Voting Rights Act) and anything else that might have motiv­ated him behind the scenes is irrel­ev­ant.

3. What’s prob­lem­atic about adding a citizen­ship ques­tion to the census?

Census experts agree that a citizen­ship ques­tion will signi­fic­antly reduce census parti­cip­a­tion by citizens and noncit­izens alike. That’s a prob­lem because the U.S. Consti­tu­tion requires the census to count every person in the coun­try, regard­less of citizen­ship status. 

It’s also a prob­lem because the count affects virtu­ally every aspect of Amer­ican life — from the way we appor­tion seats in Congress, to how we divvy up billions of dollars in federal fund­ing, to where busi­nesses decide to open up shop. An under­count harms every­one in communit­ies where under­counts happen, regard­less of their polit­ical affil­i­ation or citizen­ship status. Resid­ents of an under­coun­ted area will inev­it­ably suffer from a loss of fund­ing for things like schools, roads, health­care, and hous­ing. And states whose popu­la­tions are under­coun­ted stand to lose repres­ent­at­ives in Congress. These prob­lems only multiply at the state level because states use census data to redis­trict not only at the congres­sional level but also at the state and local level. 

4. How do the recent appeals to the U.S. Supreme Court factor in here?

The Trump admin­is­tra­tion has asked the Supreme Court to put the trial on hold and review some of the trial court’s orders. One of those orders requires Ross to sit for exam­in­a­tion under oath, which the admin­is­tra­tion is trying to prevent. The Court’s decision on this and other issues the admin­is­tra­tion has flagged will affect only what evid­ence the plaintiffs will be allowed to use to prove their case. It won’t affect whether the trial happens or not, and it won’t determ­ine whether the plaintiffs’ legal claims are right.

5. What happens next?

The trial is sched­uled to last two weeks. The court’s ruling should arrive soon after, because the court has repeatedly said that time is of the essence. Mean­while, four other cases chal­len­ging the citizen­ship ques­tion — two in Cali­for­nia and two in Mary­land — are set for trial in Janu­ary 2019.

Whatever the trial courts decide in these cases, their decisions will undoubtedly be appealed to the federal courts of appeals and then, perhaps, the U.S. Supreme Court. Those appeals must happen rapidly if the 2020 census is to remain on track. 

(Image: Shut­ter­stock.com)