The state of California sued the Trump administration Monday night, arguing that the decision to add a question about citizenship in the 2020 Census violates the U.S. Constitution. The state’s attorney general acted just after the Commerce Department announced the change in a late-night release.
The action was followed Tuesday by an announcement from New York Attorney General Eric T. Schneiderman that he will lead a multi-state lawsuit to preserve what he said was a fair and accurate Census.
The suits are just the start of what is likely to be a broader battle with enormous political stakes that pits the administration against many Democratic states, which believe that the citizenship question will reduce the response rate for the census and produce undercounts. As a result, opponents say, states with significant immigrant populations stand to lose seats in state legislatures and Congress, along with electoral college votes in presidential elections and federal funding based on census counts.
Republicans gained a significant advantage in redrawing maps after the 2010 Census, as The Washington Post’s Aaron Blake has reported. Democrats worry about a repeat.
California Attorney General Xavier Becerra was among several Democrats who vowed to challenge the addition of the question.
Commerce Secretary Wilbur Ross said, among other things, that the data could help identify potential voting-rights violations by providing more accurate information than currently available about the proportion of a congressional district’s population that is eligible to vote by virtue of holding citizenship. Information about citizenship currently comes from a survey that samples a small percentage of the population.
In raw political terms, it has been estimated that an undercount feared by Democrats could cost California at least one seat in the House of Representatives and, on the national level, shift political power from cities to more rural communities with the benefits falling to the Republican Party, as The Post’s Michael Scherer has written.
The administration’s plans were not a surprise. ProPublica, the nonprofit investigative journalism organization, disclosed in December that the Justice Department had asked the Census Bureau to make the change. And some Republicans in Congress tried to force a similar change for the 2010 census.
The Constitution requires a census, or “actual enumeration,” every 10 years to apportion representation in Congress. Apportionment is based on the “number of free persons” in each state. California’s lawsuit alleges the change violates the constitutional requirement of “actual Enumeration” of every person in every state, every 10 years.
“It is long settled that all persons residing in the United States — citizens and non-citizens alike — must be counted to fulfill the Constitution’s ‘actual Enumeration’ mandate,” the lawsuit stated. Becerra also argued the move violated the Administrative Procedure Act’s prohibition against “arbitrary and capricious” agency action.
“The census numbers provide the backbone for planning how our communities can grow and thrive in the coming decade,” Becerra said in a statement. “California simply has too much to lose for us to allow the Trump Administration to botch this important decennial obligation. What the Trump Administration is requesting is not just alarming, it is an unconstitutional attempt to discourage an accurate census count.”
House and Senate Democrats last week introduced bills that would require more time and vetting before a new question could be added, and on Tuesday , Rep. Elijah E. Cummings, the Ranking Member of the House Committee on Oversight and Government Reform, called for hearings on the citizenship question.
“I personally spoke with Secretary Ross about this issue, and I am very disappointed that he appears to be disregarding the views of Republican and Democratic experts—including six former Census Directors—and is instead rushing ahead with a politically-motivated decision that will jeopardize the full, fair, and accurate count our Constitution demands,” he said in a statement. “The Oversight Committee has jurisdiction over the Census, and I call on Chairman Gowdy to hold hearings as soon as possible on this issue, as well as other troubling examples of politicization at the Census Bureau under President Trump.”
In a statement announcing the multi-state suit, Schneiderman said, “The Trump Administration’s reckless decision to suddenly abandon nearly 70 years of practice by demanding to know the citizenship status of each resident counted cuts to the heart of this sacred obligation – and will create an environment of fear and distrust in immigrant communities that would make impossible both an accurate Census and the fair distribution of federal tax dollars. This move directly targets states like New York that have large, thriving immigrant populations –threatening billions of dollars in federal funding for New York as well as fair representation in Congress and the Electoral College.”
The Commerce Department, in a memorandum, portrayed the move as a way to better enforce Section 2 of the Voting Rights Act, which protects minority population voting rights. Asking census respondents if they are citizens would help the government gather currently unavailable data on the population of people who are eligible to vote, the memorandum said.
Commerce Department officials said that a Census Bureau analysis failed to provide “definitive, empirical support” that adding a citizenship question would reduce response rates, producing the sort of undercount feared by Becerra.
“The Department of Commerce is not able to determine definitively how inclusion of a citizenship question on the decennial census will impact responsiveness,” Ross wrote in his memo. “However, even if there is some impact on responses, the value of more complete and accurate data derived from surveying the entire population outweighs such concerns.”
In an attempt to minimize any impact on response rates, Ross directed the Census Bureau to place the citizenship question last on the census form.
“The citizenship data provided” to the Justice Department as it reviews remapping for violations of voting rights “will be more accurate with the question than without it, which is of greater importance than any adverse effect that may result from people violating their legal duty to respond” to the census, Ross wrote.
Critics disputed the government’s claims that effects would be minimal. Former U.S. attorney general Eric H. Holder Jr., who serves as chairman of the National Democratic Redistricting Committee, said in a statement that the decision could lead to “devastating, decade-long impacts on voting rights and the distribution of billions of dollars in federal funding.”
“We will litigate to stop the Administration from moving forward with this irresponsible decision,” Holder wrote. “The addition of a citizenship question to the census questionnaire is a direct attack on our representative democracy.”
“Make no mistake — this decision is motivated purely by politics,” Holder added. “In deciding to add this question without even testing its effects, the Administration is departing from decades of census policy and ignoring the warnings of census experts.”
House Minority Leader Nancy Pelosi (D-Calif.) said in a statement: “The Trump Administration’s late night announcement of a new citizenship question violates the clear constitutional mandate to provide an accurate count of all people living in the United States. This detrimental fear will inject fear and distrust into vulnerable communities, and cause traditionally undercounted communities to be even further under-represented, financially excluded and left behind.”
Indeed, the Commerce Department’s announcement was met with significant criticism from census experts on Monday night. Terri Ann Lowenthal, a census expert and former congressional staffer who worked on census oversight, called the move a mistake and predicted a number of legal challenges from advocacy groups.
“My biggest worry is the growing risk that public confidence in the census will drop significantly,” Lowenthal said. “Between evidence that the administration is manipulating the census for political gain, and fear that the administration will use the census to harm immigrants, confidence in the integrity of the count could plummet. And the census is only as good as the public’s willingness to participate.”
Former Census Bureau director Kenneth Prewitt said the decision “makes for a stormy situation given the unique visibility of the census.”
“We have no idea how the untested insertion of a citizenship question will affect public cooperation. My guess? We will have a less accurate census than the nation could have had,” Prewitt said.
The citizenship question will be similar to the one included since 2005 on the American Community Survey, which is sent annually to a sample of about 2.6 percent of the population. The Justice Department currently uses data from that survey to enforce the Voting Rights Act but says the data is “insufficient in scope, detail, and certainty” for use in identifying voting rights violations, Ross wrote.
The census regularly asked about citizenship between 1820 and 1950, when the question was removed. In December, the Justice Department requested that the Census Bureau reinstate the question in the 2020 census.
California would be hit particularly hard by the change because of its high proportion of foreign-born and undocumented residents, as Becerra’s lawsuit states.
“Undercounting the sizeable number of Californian non-citizens and their citizen relatives will imperil the State’s fair share of congressional seats and electoral college electors and will cost the State billions in federal funding over the next decade,” the attorney general’s lawsuit says.
In an opinion piece Monday in the San Francisco Chronicle, Becerra and California Secretary of State Alex Padilla described the move as “truly insidious” and an “extraordinary attempt by the Trump administration to hijack the 2020 census for political purposes.” An undercount, Becerra and Padilla argued, could jeopardize crucial community services such as homeland security funds, natural disaster preparation, and health care and infrastructure resources.
The National Association of Latino Elected and Appointed Officials Educational Fund said the addition “would have catastrophic consequences for Latinos and all Americans.”
“The stakes are too high for a failed 2020 Census, and we will not sit idly by as those with [malicious] intentions seek to thwart a fair and accurate count of immigrants, Latinos and all Americans,” the organization said in a statement.
“The fight has just begun, and we will not stop until we have exhausted all avenues to provide the Census Bureau with the fix and certainty it needs to tackle its most ambitious task yet, counting the largest American population in history.”
Heather Long and Tara Bahrampour contributed to this report.