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Maryland trial on census citizenship question focuses on disenfranchisement in its first few days

Commerce Secretary Wilbur Ross has agreed to testify about the 2020 Census citizenship question on March 14  before the House Committee on Oversight and Reform.
Commerce Secretary Wilbur Ross has agreed to testify about the 2020 Census citizenship question on March 14 before the House Committee on Oversight and Reform. (Manuel Balce Ceneta/AP)

In a trial that began in Maryland this week over the Trump administration’s plan to add a citizenship question to the 2020 Census, public policy experts, statisticians, immigrant leaders and a former Census Bureau director said the question was likely to produce a less accurate count, and lawyers accused the government of conspiring to deny minority groups their equal rights.

The trial, which opened Tuesday in the U.S. District Court for the District of Maryland, in Greenbelt, addresses two of seven lawsuits challenging the addition of the question, which Commerce Secretary Wilbur Ross announced in March.

Ross’s announcement, which came days before a deadline to inform Congress about the contents of the decennial census, caused an outcry among statisticians, former Census Bureau directors, civil rights organizations and Democratic lawmakers.

Opponents said the late addition of the question without the testing that new questions usually undergo 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 accuracy of the survey. The government has said that it needs the question to better enforce the Voting Rights Act.

Testimony in the Maryland trial, which is expected to conclude next week, continued as the Census Bureau on Thursday released the results of public comment on the 2020 Census. Of more than 148,000 comments, 92 percent pertained to the citizenship question and 99 percent of those opposed the question.

Denise Hulett, lead attorney with the Mexican American Legal Defense and Educational Fund, which represents several plaintiffs in the case, including the nonprofit La Union del Pueblo Entero (LUPE), said the survey results “validated what we have been saying about the urgency of the matter and what we’ve been proving in court — that the citizenship question is going to affect the Census Bureau’s ability to get an accurate count. The injury is not speculative at all.”

Last week, a federal judge in New York ruled that the government must stop its plans to add the question; the government has appealed to the Supreme Court to quickly bypass its normal procedures and decide on whether the question can be added.

A similar trial challenging the question is underway in California. The government had sought to have all three trials dismissed.

In all three, the Trump administration is accused of failing to follow the Administrative Procedures Act, which governs the process by which federal agencies develop and issue regulations. But plaintiffs in one of the Maryland cases, LUPE v. Wilbur Ross et al. , also accuse the government of conspiracy.

The suit alleges 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 addressed in the Maryland trial says the question would affect 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.

At the trial, former Census Bureau director John Thompson testified that Ross had ignored long-established protocol for adding a question and had gone against expert advice that decried the plan.

Thompson, who resigned from the bureau in 2017, said he disagreed with Ross’s assertion that the count would be more accurate with the citizenship question than without it, calling it “inconsistent with the research,” and added that “there is no evidence that the secretary considered factors that must be considered” when adding a question.

Douglas Massey, a Princeton University sociologist, testified that the timing of Ross’s announcement was odd: “My expertise as a demographer made me very suspicious when the question was proposed for the census with only two days to go” before Congress had to be informed of its contents, he said. “It raised my suspicions that something very strange was going on.”

Typically, the wording, placement and other aspects of questions go through months of extensive refining and testing before being added to the census.

Juanita Valdez-Cox, executive director of LUPE, said she lives in an area of Texas that is eight miles from the Mexico border, where residents are largely Mexican American and most receive federal entitlements such as food stamps, Section 8 housing and Title 1 school benefits — funding that could be reduced if residents are undercounted in 2020.

Her organization is encouraging people in her area to fill out the survey, but adding the citizenship question would scare not only noncitizens from doing so but also citizens who live in the many households that include noncitizens, she said. Every household fills out one form and must list all residents.

“They’re very concerned and they’re very fearful,” Valdez-Cox said. “How can one person that’s a citizen respond to the questionnaire not knowing what’s going to happen if they share that information if the grandmother’s there and the mother’s there and they don’t have documents?”

Because of fears stoked by the citizenship question, she said LUPE has needed to divert resources from other areas to perform additional outreach in an attempt to convince people to fill out the census.

In cross-examination, lawyers for the government sought to show that some of the harms alleged by the witnesses were not caused by the addition of the citizenship question.

Responding to a request for comment on the trial, Justice Department spokeswoman Kelly Laco said, “Secretary Ross, the only person with legal authority over the census, reasonably decided to reinstate a citizenship question on the 2020 Census in response to the Department of Justice’s request for better citizenship data, to protect voters against racial discrimination. Not only has the government asked a citizenship question in the census for most of the last 200 years, 41 million households have already answered it on the American Community Survey since 2005.”

But Thompson and other witnesses testified that the existence of a citizenship question on the ACS, a longer questionnaire that goes to far fewer households, does not mean that the question would be appropriate on the census.

One focus of litigation against the question has focused on Ross’s shifting statements about the origin of the request for it to be added. He told Congress in the spring that he was responding to a December 2017 request from the Justice Department, but documents released in the lawsuits indicated Ross asked the department to make the request, and that he had discussed the addition with Stephen K. Bannon when he was White House chief strategist, as well as with Kris Kobach months earlier when he was the Kansas secretary of state.

Since taking control of the House this month, Democrats appear to be making good on vows to fight the question. Ross, whom the Supreme Court shielded from testifying in the New York trial, has agreed to appear at a March 14 hearing before the House Committee on Oversight and Reform, according to Rep. Elijah E. Cummings (D-Md.), the committee’s chairman.