In his ruling, Hazel wrote, “The unreasonableness of Defendants’ addition of a citizenship question to the Census is underscored by the lack of any genuine need for the citizenship question, the woefully deficient process that led to it, the mysterious and potentially improper political considerations that motivated the decision and the clear pretext offered to the public.”
Hazel did not find enough evidence to support plaintiffs’ claims that the government intended to discriminate against immigrants, Latinos and Asian Americans by adding the question, or that adding the question was part of a conspiracy within the Trump administration to violate the constitutional rights of noncitizens and people of color.
“We are disappointed by this ruling,” said Kelly Laco, a spokesperson for the Justice Department. “Our government is legally entitled to include a citizenship question on the census and people in the United States have a legal obligation to answer.”
The Commerce Department declined to comment.
Commerce Secretary Wilbur Ross’s March 2018 announcement of the question caused an outcry among former Census Bureau directors, statisticians, civil rights organizations and Democratic lawmakers.
Opponents said the late addition, which did not undergo the years of planning and testing that new questions usually do, would lead to undercounts among immigrant communities and affect federal funding, apportionment and redistricting. They noted that the bureau’s own analysis found that adding the question could jeopardize the survey. The government has said it needs the question to better enforce the Voting Rights Act (VRA).
After two federal judges in New York and California this year ordered the government to stop its plans to add the question, the Supreme Court is set to take up the question on April 23. It will be one of the last oral arguments the high court hears this term.
Although three district judges have ruled, the case comes to the high court in an unusual posture: No appeals court has reviewed any of the decisions, which is usually a prerequisite for Supreme Court consideration. Both sides agreed there was no time for that because the forms must be sent to the printer and the issue of adding the citizenship question must be decided by the end of June, when the Supreme Court’s term ends.
In all three trials, the Trump administration was found to have violated the Administrative Procedure Act, which governs how federal agencies develop and issue regulations. In addition, the Maryland and California judges found the question to be unconstitutional because it would hinder the Constitution’s mandate of an “actual enumeration” of the population every 10 years.
The lawsuits contended that Ross ignored long-established protocol for adding a question and went against expert advice critical of the plan.
A key element was the secretary’s shifting statements about the origin of the request for the question to be added. Ross told Congress last spring that he was responding to a December 2017 request from the Justice Department, but the lawsuits uncovered emails indicating he was the one who asked the department to make the request.
Emails also showed Ross had discussed the addition months earlier with Stephen K. Bannon when Bannon was White House chief strategist, as well as with Kris Kobach, then the secretary of state of Kansas.
In his ruling, Hazel found that the government’s rationale for adding the question to be “a mere pretext.”
“The Secretary’s own statements, along with the emails and documents contained in the Administrative Record, establish that the Secretary was pursuing a citizenship question with urgency long before he had any awareness of the purported VRA-enforcement rationale, which the record shows was manufactured by his staff,” he wrote.
“At best, the Secretary ignored clear evidence that the citizenship question would harm the distributive accuracy of the Census for some mysterious reason known only to him. At worst, the Secretary intended to negatively affect the distributive accuracy of the Census by reducing immigrant response rates to the Census. Both possibilities disregard the need to accomplish an actual enumeration of the population — the constitutional purpose of the Census.”
Plaintiffs in the Maryland case had additional claims. One, LUPE v. Wilbur Ross et al., accused the government of conspiracy, alleging the government added the question “to depress the count of immigrant communities of color, thereby decreasing this population’s impact on and benefit from apportioned political power,” and that Ross “engineered the Voting-Rights-Act rationale with the assistance of the Department of Justice to cloak Defendants’ true purpose.”
The other lawsuit in the Maryland trial, Kravitz et al v. United States Department of Commerce et al., said the question would harm a broad swath of people — including U.S. citizens — living in areas such as Prince George’s County that have a high proportion of immigrants and minorities and are vulnerable to being undercounted.
Prince George’s residents have said they fear the question would cause them to lose services they depend on, such as road enlargement and special education programs.
Hazel found plaintiffs had demonstrated a “substantial risk” that the addition of the question would lead to an undercount of Hispanics and noncitizens that would cause vote dilution from redistricting and malapportionment of congressional seats, as well as a loss of federal funding in their areas.
The Maryland trial was the only one that established that individuals would be harmed by the question, said Shankar Duraiswamy, an attorney with Covington and Burling who is lead counsel for the plaintiffs in the Kravitz case.
“I think it makes the impact of the question on individuals and communities that have high levels of Latinos and noncitizens particularly concrete,” he said.
“Some will lose a congressional seat and all live in areas that will see their voting power diluted because of the redistricting process within their states,” he said. “They will be drawn into overpopulated voting districts so their votes will count less than people in other parts that have fewer Latinos and noncitizens.”
Friday’s ruling sends a strong message to the Supreme Court, said Thomas Wolf, counsel with the Democracy Program at the Brennan Center for Justice at New York University.
“The justices of the Supreme Court will have to think long and hard before reversing rulings against the citizenship question from three separate courts,” he said.
The Trump administration — in general, and particularly in this case — has been eager to get the Supreme Court involved. It feels it has a better chance with the conservative majority on the court than from more liberal judges in district and appeals courts. The strategy was vindicated last term when the Supreme Court upheld Trump’s travel ban for people from certain Muslim-majority countries after defeats in lower courts.
Robert Barnes contributed to this report.