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Schneiderman files suit to block federal government from demanding citizenship info in census

April 3, 2018 Brooklyn Daily Eagle
New York Attorney General Eric Schneiderman (shown) filed a suit Tuesday against the Trump administration’s plan to demand citizenship information in the 2020 census, saying the administration must treat the census with “the respect and reverence it deserves.” Eagle file photo by Paul Frangipane
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New York Attorney General Eric T. Schneiderman — leading a coalition of 18 Attorneys General and six cities and the bipartisan U.S. Conference of Mayors — filed a lawsuit Tuesday to block the Trump administration from demanding citizenship information in the 2020 decennial census.

Demanding citizenship information on the census would depress turnout in states with large immigrant populations, directly threatening those states’ fair representation in Congress and the Electoral College, as well as billions of dollars in critical federal funds for education, infrastructure, Medicaid and more.

“One of the federal government’s most solemn obligations is a fair and accurate count of all people in the country, citizen and non-citizen alike,” Schneiderman said. “For decades, administrations from both parties have treated this constitutional requirement with the respect and reverence it deserves. Now, the Trump administration is breaking with that tradition — recklessly abandoning nearly 70 years of practice by demanding to know the citizenship status of each resident counted.

“With immigrant communities already living in fear, demanding citizenship status would drive them into the shadows, leading to a major undercount that threatens billions in federal funding for New York and our fair representation in Congress and the Electoral College. I’m proud to lead this coalition in the fight for a full and fair census,” he said.

The lawsuit, which was filed Tuesday morning in the U.S. District Court for the Southern District of New York, was led by Schneiderman and joined by the Attorneys General of New York, Connecticut, Delaware, Illinois, Iowa, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Virginia, Vermont, Washington and the District of Columbia; the cities of New York City, Chicago, Philadelphia, Providence, San Francisco and Seattle; and the bipartisan U.S. Conference of Mayors.

Under the Constitution, the Census Bureau has an obligation to determine “the whole number of persons in each state.” Yet demanding citizenship information in the census is expected to depress participation among immigrants, causing a population undercount that would disproportionately harm states and cities with large immigrant communities. Non-citizens are counted in the census for the purposes of federal funds, apportioning of congressional seats and Electoral College votes, and the drawing of state and local districts.

“New York City is joining Attorney General Schneiderman’s lawsuit to stop President Trump from this unprecedented move to politicize the census. A fair and accurate 2020 count is constitutionally mandated to ensure political power and resources remain with the people – where they belong. President Trump’s decision puts our amazing city of immigrants in jeopardy and threatens federal funding for infrastructure, health care and public safety in New York,” said Mayor Bill de Blasio.

On Dec. 12, 2017, the U.S. Department of Justice requested that the Census Bureau demand citizenship information in the 2020 census form sent to every household in the U.S., even though the census is supposed to count all persons — citizens and non-citizens alike. The Department of Justice argued that the collection of such information was necessary to ensure proper enforcement of the 1965 Voting Rights Act.

Yet as Schneiderman and 18 other states argued in a letter sent to the Commerce Secretary in February, the demand would have precisely the opposite effect by driving down participation in immigrant communities — a concern that is even more acute in today’s political climate. The resulting undercount would deprive immigrant communities of fair representation when legislative seats are apportioned and district lines are drawn.

The lawsuit filed today is brought under the Enumeration Clause of the U.S. Constitution, as this action by the Trump administration will impede an “actual Enumeration” required by the Constitution. It is also brought under the Administrative Procedure Act, which permits courts to set aside unlawful or arbitrary and capricious agency decisions.

As the Census Bureau’s own research shows, the decision to demand citizenship information will “inevitably jeopardize the overall accuracy of the population count” by significantly deterring participation in immigrant communities, because of concerns about how the federal government will use citizenship information. These concerns are amplified by President Donald Trump’s anti-immigrant rhetoric and pattern of actions that target immigrant communities.

In 1980, the Census Bureau rejected the addition of a citizenship question, saying, “Any effort to ascertain citizenship will inevitably jeopardize the overall accuracy of the population count. Obtaining the cooperation of a suspicious and fearful population would be impossible if the group being counted perceived any possibility of the information being used against them. Questions as to citizenship are particularly sensitive in minority communities and would inevitably trigger hostility, resentment and refusal to cooperate.”

In 2009, all eight former Directors of the Census Bureau dating back to 1979 — who served under both Democratic and Republican presidents — affirmed that a citizenship question would depress participation and lead to a significant undercount, undermining the purpose of the census itself.

As the lawsuit describes, the administration’s decision is inconsistent with the Census Bureau’s constitutional and statutory obligations, is unsupported by the stated justification, departs from decades of settled practice without reasoned explanation, and fails to consider the availability of alternative data that can effectively serve the federal government’s needs.

The lawsuit also emphasizes the irreparable harm that will result from inaccuracies in the 2020 census caused by demanding citizenship information. Hundreds of billions of dollars in federal funds are directly tied to demographic information obtained through the census, including the Highway Trust Fund and other Department of Transportation grants, Child Care Development Grants and Medicaid. Consequently, inaccurate counts can potentially deprive states of much-needed funds designed to protect low-income and vulnerable communities.

The decennial census is also used to apportion seats in the House of Representatives, and each plaintiff state relies on population information from the Census Bureau to draw statewide redistricting plans for their Congressional and state legislative districts. Demanding citizenship information would cause disproportionate undercounts in communities with immigrant populations and therefore prevent plaintiff states from fulfilling the one-person, one-vote constitutional requirement, as well as create distributional inaccuracies in the data states use to draw district lines.

In addition, the citizenship demand would depress Census participation within the states’ diverse immigrant and undocumented populations, leading to inaccurate responses and a significant undercount of the states’ residents. As a result, an undercount of population in states that are home to large immigrant communities will impair fair representation, a principle fundamental to the fabric of our democracy.

—Information from the Attorney General’s Office


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