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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.