Courts Deliver Trump 5 Setbacks In Census Citizenship Lawsuits

Aug 22, 2018
Originally published on August 23, 2018 9:40 am

A federal judge in Maryland is allowing a lawsuit over the hotly contested citizenship question on the 2020 census to proceed, bringing the total number of lawsuits judges have greenlighted despite the Trump administration's efforts to get them tossed out of court to five.

In an opinion released Wednesday, U.S. District Judge George Hazel rejected the Trump administration's efforts to dismiss the lawsuit filed by a group of residents from Maryland and Arizona. Hazel is allowing the plaintiffs to argue in court that using the census to ask about U.S. citizenship status in the current political climate violates the Constitution.

"It cannot be said that the Census Bureau's use of the citizenship question bears a 'reasonable relationship to the accomplishment of an actual enumeration of the population,' " Hazel wrote, referencing a U.S. Supreme Court ruling in a 1996 case about the census.

In less than one month, three federal courts have issued decisions rejecting the Trump administration's motions to dismiss five lawsuits.

The Maryland lawsuit can also proceed on the plaintiffs' claims that under the Administrative Procedure Act, Commerce Secretary Wilbur Ross — who oversees the census — misused his discretion by adding the controversial question to the census in March.

Hazel wrote that internal documents the Trump administration has already filed in federal courts for the lawsuits suggest the citizenship question was "an answer in search of a problem."

"There is evidence indicating that the Secretary and other senior administration or campaign officials were determined to include the citizenship question in the
2020 Census and sought out [the Justice Department] to provide a legally defensible reason to do so," added the judge, who is allowing the plaintiffs to participate in the depositions of Trump administration officials and additional document requests led by attorneys in the New York-based lawsuits over the census question.

The ruling in Maryland extends a legal battle that complicates preparations for the upcoming national head count required by the Constitution. The census numbers are used to redistribute congressional seats and Electoral College votes, as well as an estimated $800 billion a year in federal funds, among the states.

Residents from Maryland and Arizona filed the lawsuit against the Census Bureau and the Commerce Department in April at the U.S. District Court for the District of Maryland. The National Redistricting Foundation, a group affiliated with former Attorney General Eric Holder's redistricting organization, is coordinating the lawsuit.

They argue that including a question about U.S. citizenship status — a topic the Census Bureau has not asked all U.S. households since 1950 — will depress participation in the census among noncitizens. That could reduce the amount of federal dollars for schools, roads and other public institutions and services that are distributed on the basis of the population count.

The Census Bureau's chief scientist has warned against adding the question. Research by the bureau suggests asking about citizenship status could discourage noncitizens from taking part in the census given increased concerns about immigration enforcement under the Trump administration.

Hazel's ruling follows similar orders by federal judges in New York and California. Two cases at Manhattan federal court are making their way toward a potential trial that could start as soon as late October. At San Francisco federal court, a potential trial for a couple of separate lawsuits may begin in January.

There is no timeline so far for when the Maryland case heads to a potential trial.

In a separate decision on Wednesday, Hazel granted a deadline extension until Friday for the Justice Department to file a motion to dismiss another citizenship question lawsuit before Hazel. That case was filed in May by various groups, including La Unión del Pueblo Entero, a Texas-based community group founded by labor activists César Chávez and Dolores Huerta.

The controversial question — which asks, "Is this person a citizen of the United States?" — was added to forms for the 2020 census in March by Ross. He has testified in Congress that the Justice Department "initiated" the request for the question in December 2017 to better enforce the Voting Rights Act's provisions against racial discrimination.

But emails and memos released as part of the lawsuits contradict Ross' testimony, showing that he wanted to add the question to the 2020 census months before the Justice Department sent its formal request to the Census Bureau.

Trump administration officials are facing depositions through the next few weeks. Attorneys for the plaintiffs are expected to focus on the Trump administration's motivations for the question.

Editor's Note: A previous version of this story misstated that total number of 2020 census citizenship question lawsuits that could head to trial. In fact, there are currently six lawsuits, although the Justice Department is expected to file another motion to dismiss one of them soon.

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