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The State of Census Lawsuits

The results will influence federal funding and political power.

The 2020 Census count is over, but legal efforts continue in order to ensure that its results are full, fair, and accur­ate. The stakes could not be higher: the 2020 Census will dictate the appor­tion­ment of congres­sional seats among the states, the redraw­ing of elec­tion districts around the coun­try, and alloc­ate $1.5 tril­lion in federal funds for the coming decade. The power and well-being of communit­ies of color — who stand to be under­coun­ted if the Trump admin­is­tra­tion’s plans come to fruition — are partic­u­larly hanging in the balance.

Here’s where census litig­a­tion stands in the run up to appor­tion­ment, which would conclude by Janu­ary 25 under current federal law.

Chal­lenges to Trump’s exclu­sion plan

The Supreme Court recently held that federal courts cannot yet rule on the legal­ity of Pres­id­ent Trump’s plan to exclude undoc­u­mented people from the Census count used to distrib­ute congres­sional seats to each state. This has paused litig­a­tion on this issue for now.

The Consti­tu­tion requires that seats in the House be appor­tioned between states based on “the whole number of persons in each state.” Accord­ingly, the appor­tion­ment base has always included all persons resid­ing in the United States irre­spect­ive of their immig­ra­tion status.

In July 2020, however, Trump announced his intent to depart from this centur­ies-old under­stand­ing, issu­ing a memor­andum declar­ing that he would exclude undoc­u­mented people from the appor­tion­ment base. It direc­ted the Commerce Depart­ment (which houses the Census Bureau) to give him two sets of numbers: the state popu­la­tion totals that federal law requires the Commerce Depart­ment to report for appor­tion­ment and data about the citizen­ship status of every person in the coun­try.

Since announ­cing the plan, the Trump admin­is­tra­tion has sent mixed messages as to whether it will be able to gather suffi­cient data to allow the pres­id­ent to exclude all undoc­u­mented people or possibly smal­ler subsets of the undoc­u­mented popu­la­tion, like people in immig­ra­tion deten­tion facil­it­ies.

The plan met swift push­back. State and local govern­ments and numer­ous immig­rant rights and racial justice organ­iz­a­tions filed lawsuits contend­ing that the plan viol­ates the Consti­tu­tion, the Census Act, the Appor­tion­ment Act, and other federal laws.

Federal district courts around the coun­try weighed in early and often for the chal­lengers. In New York v. Trump, a three-judge panel unan­im­ously held that the plan plainly viol­ated the stat­utes govern­ing the census and appor­tion­ment, writ­ing that “the merits of the parties’ dispute are not partic­u­larly close or complic­ated.” The court ruled that the plan viol­ated the Appor­tion­ment Act’s command — modeled after the Consti­tu­tion — to count “the whole number of persons in each State.” The court also determ­ined that the pres­id­ent’s order to report two sets of numbers viol­ated the Census Act’s mandate to report a single tabu­la­tion of the total popu­la­tion based on the census results.

In City of San Jose v. Trump, a three-judge panel in Cali­for­nia unan­im­ously held that the plan viol­ated the Consti­tu­tion and federal stat­utes. And another three-judge panel in Mary­land ruled unan­im­ously in Useche v. Trump that the plan viol­ated the stat­utes govern­ing the census.

Only one lower court ruled against the plan’s chal­lengers: a three-judge panel in Wash­ing­ton, DC, held 2–1 in Common Cause v. Trump that it would be more prudent for the court to wait to see how the admin­is­tra­tion imple­ments its plan before ruling on its legal­ity.

The Supreme Court heard the New York case at the end of Novem­ber and dismissed it in Decem­ber, determ­in­ing that judi­cial review was prema­ture because it is not yet known to what extent the pres­id­ent will be able to imple­ment his plan, how many people he will be able to exclude, or where among the states those people will be located, thereby making the harm to chal­lengers unclear. The Court subsequently vacated the district courts’ rulings in San Jose and Useche, order­ing those cases to be dismissed for lack of juris­dic­tion.

The Supreme Court’s actions permit Trump to try to imple­ment his plan and further threaten the integ­rity of a census that the Trump admin­is­tra­tion has repeatedly endangered.

Because the Court ruled that the plan was not yet ripe for review, chal­lengers can sue again if the pres­id­ent actu­ally tries to imple­ment it — and the plaintiffs have already indic­ated that they will do just that. Such a lawsuit would seek to ensure that immig­rant communit­ies and the broader communit­ies of which they are a part receive the polit­ical repres­ent­a­tion that the law guar­an­tees them.

Mean­while, a long-running lawsuit in Alabama seek­ing a court order exclud­ing undoc­u­mented people from the count may restart after the appor­tion­ment occurs.

Chal­lenge to Trump’s undis­closed plans for appor­tion­ment

A Free­dom of Inform­a­tion Act (FOIA) lawsuit by the Bren­nan Center may help resolve the outstand­ing ques­tions surround­ing the admin­is­tra­tion’s plan for the appor­tion­ment.

Although Trump only announced his exclu­sion policy last summer, census watch­dogs, civil rights and racial justice groups, and others long suspec­ted that the Trump admin­is­tra­tion would attempt to use the appor­tion­ment to under­mine the polit­ical power of communit­ies of color and immig­rant communit­ies, whether by using citizen­ship data or some other means. The Bren­nan Center sought to provide clar­ity on the admin­is­tra­tion’s plans by part­ner­ing with the law firm Wilmer­Hale LLP to file multiple FOIA requests in early July. We sued to enforce the requests after the federal govern­ment did not exped­i­tiously release the full scope of the docu­ments sought.

In Bren­nan Center v. U.S. Depart­ment of Commerce, the district court ordered the Depart­ment of Commerce, Census Bureau, Office of Manage­ment and Budget, and several Justice Depart­ment compon­ents to produce docu­ments on a rapid sched­ule so that the Bren­nan Center can review and make use of any respons­ive inform­a­tion before Janu­ary 25, 2021, when the appor­tion­ment process is sched­uled to conclude.

Chal­lenge to the rushed census timeline

Trump’s plan to exclude undoc­u­mented people from the appor­tion­ment count has traveled hand-in-hand with his admin­is­tra­tion’s attempts to rush the count and processing of appor­tion­ment data before he leaves office.

In April, as the coronavirus pandemic was spread­ing across the United States, the Census Bureau intro­duced a plan to protect the health and safety of the public while still ensur­ing that it could conduct an accur­ate count. This Covid-19 plan delayed the start of all count­ing meth­ods that required face-to-face contact and exten­ded the time for calcu­lat­ing the state popu­la­tion totals used for appor­tion­ment from Decem­ber 31, 2020, to April 30, 2021.

But barely two weeks after Trump announced his plan to exclude undoc­u­mented people, the Census Bureau suddenly and without explan­a­tion announced that it was cutting the time for collect­ing and processing census data in half. The bureau’s “Replan” went directly against its own state­ments about the signi­fic­ant risks a condensed census process would create for the accur­acy of the final data.

The unex­plained rush poses a grave threat to count­ing people of color in the census and provid­ing them their fair share of polit­ical repres­ent­a­tion and fund­ing for essen­tial services, because many of the steps cut short are designed specific­ally to ensure a full count of communit­ies of color.

A coali­tion of civil rights groups; Amer­ican Indian nations; local govern­ments; and local govern­ment offi­cials repres­en­ted by the Bren­nan Center, the Lawyers’ Commit­tee for Civil Rights Under Law, and the law firm Latham & Watkins LLP sued the Commerce Depart­ment and the Census Bureau in federal court in North­ern Cali­for­nia.

The lawsuit, National Urban League v. Ross, contends that the Census Bureau viol­ated its consti­tu­tional duty to make census-related decisions that “bear a reas­on­able rela­tion­ship to the accom­plish­ment of an actual enumer­a­tion of the popu­la­tion” by abandon­ing its Covid-19 plan. The suit also argues that the bureau’s unex­plained decision to cut the census short viol­ated stat­utory require­ments for agen­cies to give clear, evid­ence-based reas­ons for their actions. The real reason for the rush, the complaint alleges, was to guar­an­tee that Trump is still in office when the popu­la­tion totals are provided — by short­en­ing the census timelines, the Trump admin­is­tra­tion was trying to preserve the pres­id­ent’s oppor­tun­ity to imple­ment his exclu­sion policy and suppress the polit­ical power of communit­ies of color. (A second case, La Union Del Pueblo Entero v. Trump, is also contest­ing the timelines as part of a chal­lenge to the Trump admin­is­tra­tion’s attempts to create a file of the citizen voting age popu­la­tion for redis­trict­ing purposes.)

The court ordered the data-collec­tion phase of the census to continue through Octo­ber 15 — more than two weeks longer than the Replan’s offi­cial end date of Septem­ber 30. Only a late emer­gency ruling from the Supreme Court preven­ted the count from running until Octo­ber 31, the full time the bureau had origin­ally asked for in its Covid-19 Plan.

In the wake of the Supreme Court’s ruling, the case contin­ues, as does the census, which is now in the crucial data-processing phase where the bureau converts hundreds of millions of census responses into usable, reli­able data.

At this stage, the plaintiffs are seek­ing a court ruling rein­stat­ing the original Covid-19 plan, among other relief. Ahead of the trial set for March 2021, the court has ordered the Trump admin­is­tra­tion to produce docu­ments and mater­i­als relat­ing to the decision to replace the Covid-19 plan with the Replan and explain­ing how the bureau has actu­ally conduc­ted both data collec­tion and data processing to meet the Replan’s tighter timelines.

These legal disputes are ongo­ing. The Bren­nan Center will continue to fight for a fair and accur­ate census in and outside of the courts.

Updates on census lawsuits can be found on our regu­larly updated case pages.