Census & Citizenship Question Lawsuits
SNAPSHOT: Why do these cases matter to LWVMN and to Minnesota?
Federal courts are hearing cases to determine whether the addition of the citizenship question to the census violate federal law or the constitution. The outcome of these cases will affect how likely and severe an undercount for the census in Minnesota will be.
The Supreme Court decided that the circumstances around the addition of the citizenship question to the census violated the Administrative Procedure Act. This provides some legal grounds to prevent the citizenship from being added to the upcoming census. However, the Department of Commerce may still have the opportunity to defend the citizenship question.
If the citizenship question is not added to the census, then the risk for an undercount in Minnesota will be lower. LWVMN and its allies will still need to work hard to ensure Minnesotans are accurately counted, but the work will not be as hard as it could have been.
However, much of the damage of the proposed citizenship question has already been done. Many Minnesotans are fearful of the census, concerned about government retribution, especially based on historical traumas caused by government actors against immigrants, indigenous peoples, and communities of color.
But for Minnesota, nothing changes. Minnesotans want a complete count to ensure Minnesota has good political representation, equal access to federal funding, and accurate demographic data for planning purposes. We want to keep 8 congressional representatives. We want to get our fair share of federal funding for roads and highways, for school lunch programs, for rural assistance programs. This is our census, our path to power, and for us, every person counts, and must be counted.
A network of the State Demographer, local government, business, and the nonprofit community will be pushing hard to ensure we get an accurate count. We will be working with local communities to encourage participation in the census and ensure Minnesotans feel safe—and are safe—when responding to the census survey.
LAWSUITS BY INDIVIDUALS
Residents of Maryland and Arizona Sue Commerce Department
In spring of 2018, residents of Maryland and Arizona sued the Department of Commerce and Secretary of Commerce Wilbur Ross. They alleged that the Department’s decision to add the citizenship question to the census violates the federal Administrative Procedure Act, the Enumeration Clause of the U.S. Constitution, and the Due Process Clause of the Fifth Amendment. The Administrative Procedure Act sets out specific procedural requirements for administrative action by federal departments. The Enumeration Clause requires the federal government to count the number of people in each state for reapportionment and redistricting every decade. The Due Process Clause of the Fifth Amendment provides that no person shall be deprived of life, liberty, or property, without due process of law, which also includes equal protection under the law.
First, the residents argue that the citizenship question was intended to cause a discriminatory undercount. Second, the residents argue that the citizenship question was implemented without appropriate assessment of its potential impact on census response rates. Third, the residents argue that regardless of intent or procedural assessment, the addition of the citizenship question also would have an actual effect of producing an undercount, violating the constitutional requirement to conduct an accurate count of every person.
District Court Decision & Federal Government’s Appeal
In April 2019, the district court agreed that the addition of the citizenship question violated both the Administrative Procedure Act and the Enumeration Clause. However, the district court ruled against the residents on their claim about a violation of equal protection under the Due Process Clause. The court did not believe there was sufficient evidence of discriminatory intent. After that decision, the federal government appealed to the U.S. Court of Appeals for the Fourth Circuit. The federal government asked the appellate court to overturn the district court’s finding that the citizenship question violated the Administrative Procedure Act and the Enumeration Clause.
New Evidence Uncovered
In late May 2019, a daughter was sorting through her recently deceased father’s personal items, including digital files on some hard drives. Her father was former Republican strategist. She discovered new documents showing that her father, the strategist, wrote a study in 2015 demonstrating that adding a citizenship question to the census would cause an undercount, and eventually could be used to cause redistricting that favored Republicans and non-Hispanic whites. He then proposed the census question to the Department of Justice and Department of Commerce.
Effect of the New Evidence on the Litigation
Soon after this discovery, the residents asked the district court to reconsider its finding that the citizenship question did not violate the equal protections of the Due Process Clause. They argued that the newly discovered documents showed the intent to cause a discriminatory undercount. They also asked the court to allow for the residents to continue to search for more evidence of this discriminatory intent. The district court found that the newly discovered documents did in fact "connect the dots between a discriminatory purpose—diluting Hispanics’ political power—and Secretary Ross’s decision[,]" and that the federal government’s reasons for adding the citizenship question were a pretext to mislead the public and the courts. The district court opened up the Due Process Clause claim again so that the residents could search for more evidence of discriminatory intent.
On June 25, 2019, the Fourth Circuit sent part of the federal government’s appeal back to the district court, agreeing that the district court should be able to evaluate the residents’ equal protection claims. One appellate judge also noted that under legal precedent, discriminatory intent does not need to be proved by direct evidence. Discriminatory intent can also be inferred through relevant facts.
Future of these Cases
After additional research and litigation on the Fifth Amendment claim regarding equal protection and due process, the district court judge will make a determination on that claim. Then, the Fourth Circuit will make a determination on the appealed issues regarding the Enumeration Clause and the Administrative Procedure Act. Additionally, the Supreme Court decision regarding the citizenship question on the census will likely affect how the courts proceed in these cases regarding the claims under the Administrative Procedure Act, potentially preempting those claims. However, the Supreme Court decision should not affect the claims regarding the Enumeration Clause or the Fifth Amendment.
LAWSUIT BY STATE AND LOCAL GOVERNMENTS
Nationwide Coalitions Sue Commerce Department
In the spring of 2018, a coalition of states, cities, and mayors also challenged the Commerce Department’s decision to add the citizenship question to the census. This coalition includes the State of Minnesota. Like the case brought by individuals, the coalition alleged that the citizenship question violated the federal Administrative Procedure Act, the Enumeration Clause, and equal protections under the Due Process Clause of the Fifth Amendment.
District Court Decision & Federal Government’s Appeal
In July of 2018, the district court dismissed the claim that the census question violated the Enumeration Clause. The district court held that the Department of Commerce did have the authority and power to add the question under the Enumeration Clause. However, the court allowed the claims under the Administrative Procedure Act and the Fifth Amendment to proceed.
In January 2019, the district court reasoned in a 227-page opinion that the citizenship question did not violate the Fifth Amendment. In deciding against the Fifth Amendment claim on discriminatory intent, the Court determined that there was not sufficient evidence to demonstrate a discriminatory purpose. However, the district court found that the census question did violate the Administrative Procedure Act.
The federal government was then able to appeal this decision directly to the Supreme Court of the United States. The federal government has asked the Supreme Court to overturn the district court’s decision that the census question violated the Administrative Procedure Act. A large number of organizations, including the League of Women Voters of the United States, submitted amicus briefs to the Supreme Court in support of the coalition.
Late Notifications to the Supreme Court
Parties to the litigation sent a letter to the Supreme Court in the law few days before the Supreme Court issued its opinion, stating that “changed circumstances” could have “material impact” on the merits of the case. First, they notified the Supreme Court of the new evidence discovered and provided in the case brought by individuals. Additionally, U.S. Census Bureau researchers recently published a paper in their individual capacities, i.e., not as Census Bureau officials. Their paper demonstrates that the census question would affect noncitizens’ responses and reduce the overall count by 2.2%. That means the undercount would be over eight million people, which is larger than the entire state of Minnesota, and nearly three times the size of Iowa. If all those individuals were their own state, they’d have 12 seats in Congress.
Additionally, the federal government sent a letter asking the Supreme Court to decide that the citizenship question did not violate the Administrative Procedure Act, but to decide that the question also did not violate the Fifth Amendment. This request shocked many in the legal world, because the Fifth Amendment claims were not before the Supreme Court. As election law expert and professor Rick Hasen noted, “The issue has not been fully briefed. It was not the subject of oral argument. It involves evidence for which there has been no fact-finding. For the Supreme Court to decide the issue on this basis is the definition of lawlessness. It is not how the Supreme Court normally does business, and the [federal government] should know better.”
Supreme Court Decision
The Supreme Court determined that the district court was correct in deciding that the Department of Commerce was not providing a truthful reason for why it wanted to implement the citizenship question. The Supreme Court sent the case back to the district court to allow the Department of Commerce a second chance at providing a truthful answer for their reason for adding the census question. The district court will then have to determine whether that new answer is not arbitrary under the Administrative Procedure Act. Meanwhile, another case in the Fourth Circuit continues, where plaintiffs are challenging the citizenship question on the basis of equal protection under the Due Process Clause of the Fifth Amendment.
It is important to note that the Supreme Court decision is based only on the claim that the citizenship question violates the Administrative Procedure Act. Lower courts, like the courts in the lawsuit by individuals, may still find that the citizenship question is unlawful based on other legal theories, such as a violation of the Fifth Amendment or the Enumeration Clause.