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Judge allows census lawsuit, citing evidence of Trump’s ‘animus toward immigrants of color’

The Justice Department's request to add a citizenship question on the 2020 U.S. Census was granted. Here's how that could affect voting districts. (Video: Joyce Koh, Daron Taylor/The Washington Post)

A federal judge on Thursday allowed a lawsuit to move forward against the Trump administration over its controversial decision to add a question about citizenship in the 2020 Census.

Judge Jesse Furman of Manhattan’s Southern District said the plaintiffs gave plausible evidence that U.S. officials intended to discriminate against immigrant communities, driven by President Trump’s incendiary statements about immigrants of color.

The plaintiffs, which include 18 states, the District of Columbia, several cities and advocacy groups, argued that including a question about citizenship would cause many immigrants to refuse to fill out the census, a risk they say is “heightened in the current political climate because of President Trump’s anti-immigrant rhetoric.” This refusal to cooperate, critics say, could trigger an undercount that would deprive communities of their share of federal funding for crucial government services such as schools, roads and bridges.

The Commerce Department asked the judge to dismiss the lawsuit, arguing in part that the court lacked jurisdiction over it, but Furman refused, saying the courts “have a critical role to play in reviewing the conduct of the political branches.

Furman ruled that Commerce Secretary Wilbur Ross did in fact have the authority to add a citizenship question on the census. But the way in which he carried out that authority, the judge said, may have violated the plaintiffs’ rights to equal protection under the law.

Ross’s decision to add the citizenship question, the judge said, “was motivated at least in part by discriminatory animus” and by President Trump himself. Shortly after Ross made the announcement, in March, the Trump reelection campaign sent emails to supporters crediting the president with mandating the change.

Trump’s census, citizenship decision ignites legal and political battle

Furman wrote that several statements made by Trump in the months before and after Ross’s decision “could be construed to reveal a general animus toward immigrants of color.”

Among the examples listed in the lawsuit was when Trump referred to immigrants from Haiti, El Salvador and African countries as “those people from shithole countries,” a comment he later denied. There was Trump’s claim, in February, that certain immigrants “turn out to be horrendous . . . They’re not giving us their best people, folks.”

And there was the president’s remark, in May, about certain “people coming into the country, or trying to come in.” “You wouldn’t believe how bad these people are,” Trump said. “These aren’t people, these are animals . . . ”

Furman acknowledged that none of those statements related specifically to the citizenship question. “But the law is clear that the mere ‘use of racial slurs, epithets, or other racially charged language,” Furman said, “can be evidence that official action was motivated by unlawful discriminatory purposes.”

The judge’s opinion marked the latest example of Trump’s anti-immigrant words working against his administration in court.

Time and time again, Trump’s incendiary rhetoric — particularly his tweets — have proven to be thorns in the side of his administration in court. In legal fights over Trump’s executive actions, such as his travel ban, transgender military ban and sanctuary cities ban, rulings have repeatedly cited how Trump’s words undercut the administration’s legal arguments, as The Washington Post’s Derek Hawkins has reported.

The court battle over the citizenship question has pitted the administration against many Democratic jurisdictions, with large immigrant populations, who worry the change could cause them to lose crucial funding and political representation. The decennial census has not asked a question about citizenship of the entire population since 1950, although citizenship status has been asked on surveys among samples of U.S. households.

Ross defended the change, saying 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. He concluded that “the value of more complete citizenship data outweighed concerns regarding non-response.”

The decision quickly triggered legal challenges from across the country; at least six lawsuits have been filed contesting it. Earlier this month, a court order required the Trump administration to provide vital documents and information on how the decision to demand citizenship information was made.

Ross said in a sworn testimony in March that the Justice Department had initiated the change. But documents released earlier this week contradicted that, providing further evidence that Ross was pushing to add a citizenship question to the 2020 Census much earlier, and much more actively, than he indicated. The documents also revealed deeper involvement of senior administration officials, including Trump’s former chief strategist Stephen K. Bannon, in pushing for the question, The Post’s Tara Bahrampour reported.

Wilbur Ross actively pushed to add citizenship question to 2020 Census, documents show

Furman’s decision Thursday to allow the case, State of New York et al vs. U.S. Department of Commerce et al, to proceed does not mean the plaintiffs will ultimately be successful in their challenge, he said. It was not a ruling on the merits of the case.

A Commerce Department spokesman said in a statement to Reuters that the department was “pleased the court found that Secretary Ross has broad authority over the Census,” and was “confident” it would ultimately prevail in the legal fight.

But New York Attorney General Barbara D. Underwood, one of the key leaders of the lawsuit, celebrated the judge’s ruling.

“Today’s decision is a big win for New Yorkers and everyone across the country who cares about a fair and accurate Census,” Underwood said in a statement. “As we’ve argued, the Trump administration’s plan to demand citizenship status as part of the Census is unlawful — and it would potentially cause a huge undercount that would threaten billions in federal funds and New York’s fair representation in Congress and the Electoral College.”

A tweet from Underwood seemed to capture the ongoing sentiment of Democratic attorneys general around the country.

“This fight is on,” she said.

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