(Reuters) - A 70-page ruling Thursday by U.S. District Judge Jesse Furman of Manhattan casts doubt on the rationale U.S. Commerce Secretary Wilbur Ross has offered for asking U.S. residents about their citizenship in the 2020 census.
When Ross announced the addition of a citizenship question in a public memo last March, he said he began to weigh the issue at the behest of the Justice Department, which suggested the data would be useful in Voting Rights Act enforcement. The Commerce secretary offered the same explanation in sworn congressional testimony.
Judge Furman in his ruling called that rationale a “pretext” and said the Commerce Department’s actions in advance of the decision to add a citizenship question should “spark suspicion.”
A Commerce Department spokesman said in an emailed statement that nothing in the record before Judge Furman “changes the sound rationale (Ross) articulated in March ... Executive branch officials discussing important issues prior to formulating policy is evidence of good government, and the Secretary’s previous statements are consistent with that fact.”
Thursday’s ruling allows 18 state attorneys general and several immigration rights groups to move ahead with litigation to block the Trump administration from adding the question.
Among the claims that will proceed is an allegation by the advocacy groups that the Trump administration violated the Fifth Amendment’s Equal Protection Clause because it had a discriminatory motive for asking U.S. residents about their citizenship in the 2020 census. The advocacy groups’ theory is that the administration knew the question would discourage census reporting by Latino, Asian, Arab and other immigrant communities, thereby depriving those communities of political representation and federal funding based on census numbers.
The Commerce Department said in its motion to dismiss that there’s no evidence to back the groups’ assertions. It also said there’s plenty of historical precedent for asking residents about citizenship in the census.
Judge Furman concluded that the groups had raised sufficient allegations of the Trump administration's discriminatory intent. Under the U.S. Supreme Court’s 1977 decision in Arlington Heights v. Metropolitan Housing Development Corp. (97 S.Ct. 555), judges can infer such intent from circumstantial evidence, including the official decisionmaking process that led to the allegedly discriminatory action.
Secretary Ross initially said the Commerce Department process began in December 2017, after the Justice Department requested the addition of a citizenship question. According to the March 2018 memo from Ross to a Commerce Department undersecretary, which Furman cites, the Justice Department said it needed "census block level" citizenship data to protect minority voting rights. Ross said in the March memo, which was issued publicly, that after ”a comprehensive review process led by the Census Bureau,” he determined that “the need for accurate citizenship data and the limited burden that the reinstatement of the citizenship question would impose outweigh fears about a potentially lower response rate.”
Ross also told Congress that the Justice Department sparked his examination of the citizenship question. In sworn testimony (2018 WLNR 8951469) before the Ways and Means Committee of the U.S. House of Representatives on March 22, the Commerce secretary told lawmakers that the Justice Department had “initiated the request for inclusion of the citizenship question.” Judge Furman cited Ross's testimony in a footnote in Thursday's ruling.
According to the judge, the evidence in the case before him shows “the sequence of events was exactly opposite” Secretary Ross’s initial account. The record, Judge Furman said, shows that Ross and Commerce staff began to consider adding a citizenship question long before the Justice Department’s inquiry in December 2017.
Ross himself, Judge Furman said, "admitted" in a June 21 declaration that he started to weigh the citizenship question “soon after" his appointment as Secretary of Commerce in February 2017, 10 months before the Justice Department’s Voting Rights Act query.
In fact, according to Secretary Ross’s declaration last month, it was the Commerce Department - not the Justice Department - that came up with the idea that citizenship data “would be useful for enforcement of the Voting Rights Act.” Ross said in the June 21 declaration that he and his staff told DOJ that if it agreed, it should formally ask Commerce to include a citizenship question on the census.
In May 2017, Ross and a Commerce staffer exchanged emails about getting DOJ on board. Ross wrote that he was “mystified why nothing have (sic) been done in response to my months old request that we include the citizenship question.” The director of the Commerce Department’s office of policy and strategic planning wrote back, “We need to work with Justice to get them to request that citizenship be added back as a census question.”
Judge Furman cited the emails, which DOJ produced just a few days ago, in Thursday’s opinion. He also said the just-produced administrative record showed that the Trump administration did not follow typical Commerce Department protocols in deciding to add the citizenship question. Secretary Ross overruled career employees at the Census Bureau, who said the citizen question would compromise the quality of the census count, Judge Furman said. In addition, the judge said, the department did not engage in “the lengthy consideration and testing that usually precede even minor changes to the census questionnaire; in fact, it was added without any testing at all.”
To Judge Furman, the record suggested “pretext.” The Commerce Department spokesman disputed that conclusion.
“Secretary Ross clearly explained why he chose to reinstate the citizenship question on the 2020 Decennial Census in his March 26, 2018 decision memorandum,” Commerce said in its email statement. ”The documents reinforce that executive branch officials worked together to ensure that Secretary Ross received all of the information necessary to make an informed decision after taking a hard look at the question and considering all facts relevant as shown in the documents provided to the court and the public. These documents also demonstrate that the citizenship question was one of many important census issues that the Secretary began considering shortly after his arrival.”
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