By Nicholas Iovino
SAN FRANCISCO – The Trump administration’s push to add a citizenship question to the 2020 Census suffered a major setback Wednesday when a federal judge issued a second nationwide injunction against the policy, finding it would “threaten the very foundation of our democracy.”
U.S. District Judge Richard Seeborg is the second federal judge in less than two months to find U.S. Commerce Secretary Wilbur Ross used a bogus reason to justify adding a question that evidence suggests will suppress immigrant and Latino participation in the decennial survey.
California and six cities, including Los Angeles and San Jose, sued the Commerce secretary after he decided to add the question to the census in March last year. The state and cities say an undercount could lead to a reduction in federal funds and congressional representation.
A May 2017 email from Ross stating he was “mystified” nothing had been done to advance his “months-old request” to add a citizenship question was the primary piece of evidence for pretext cited in Seeborg’s ruling.
After that email was sent, Ross’s subordinates embarked on “a cynical search to find some reason, any reason, or an agency request to justify that preordained result,” Seeborg wrote in his 126-page decision.
In December 2017, the Justice Department sent a letter stating that it needed citizenship data to help enforce the Voting Rights Act. That letter came only after the Department of Homeland Security and Justice Department, initially, refused to request the data.
According to evidence cited in the record, then-Attorney General Jeff Sessions intervened after a private phone conversation with Ross and ordered the Justice Department to pen the letter.
Sessions then forbade his subordinates from meeting with Census Bureau staff to discuss the request or alternatives for obtaining citizenship data, Seeborg wrote in his ruling.
“It is clear from the administrative record that Secretary Ross’s purported reliance on the DOJ letter was nothing more than a pretext designed to provide cover for Secretary Ross’s unexplained desire to add the citizenship question to the census,” Seeborg wrote.
The judge also found adding a citizenship question would actually defeat the stated purpose of obtaining accurate citizenship data because evidence shows the question would will deter immigrants and Latinos from participating, leading to an undercount of noncitizens.
Seeborg’s ruling also gave opponents of the citizenship question a broader victory than the one obtained in a parallel lawsuit in New York in January. While both judges found the decision to add the question was arbitrary and capricious, Seeborg further ruled the question violates the U.S. Constitution’s enumeration clause, which requires an accurate count of the U.S. population every 10 years.
Seeborg found evidence of the question’s impact on Latino and immigrant participation, compounded by the current political climate and debate over President Donald Trump’s hard-line immigration policies, would undermine the “strong constitutional interest” in obtaining an accurate count.
He cautioned that his ruling does not suggest that a citizenship question could never be added to the decennial survey, as it was in 1950 and census surveys prior to that.
But when evidence shows adding a question will hurt accuracy to the point of jeopardizing funding and congressional representation for states and localities, “the government must identify a legitimate governmental purpose that is sufficiently weighty to justify this significant harm to the census,” Seeborg concluded.
The judge also cited the Supreme Court’s 2013 decision striking down parts of the Voting Rights Act in Shelby County v. Holder as evidence that a government action’s constitutionality can change over time depending on social and political circumstances.
“The fact that the citizenship question may have been perfectly harmless in 1950, or that may be harmless again in the year 2050 is of little consequence to the Secretary’s constitutional obligations with respect to the accuracy of the 2020 census,” Seeborg wrote.
California Attorney General Xavier Becerra praised the ruling as a victory that will safeguard fair representation and federal funding for California and its communities.
“Justice has prevailed for each and every Californian who should raise their hands to be counted in the 2020 census without being discouraged by a citizenship question,” Becerra wrote in an emailed statement. “We look forward to a 2020 census free of partisanship, where every person can be counted equally and without prejudice.”
The Justice Department did not immediately respond to an email seeking comment Wednesday.
Because the 2020 census survey must be finalized this summer, the Supreme Court agreed last month to hear a challenge against U.S. District Judge Jesse Furman’s Jan. 15 ruling against the citizenship question. It was the first time in 15 years the high court chose to hear a case not yet reviewed by an intermediate appeals court.
The justices could decide to add Seeborg’s ruling to the scope of their review. The Supreme Court is expected to hear oral arguments on the case in late April and issue a decision before the end of June.