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Judge rules census question lawsuit can proceed

Commerce Secretary Wilbur Ross testifies on Capitol Hill

Commerce Secretary Wilbur Ross testifies on Capitol Hill in Washington on June 22. Credit: AP / Manuel Balce Ceneta

A Manhattan federal judge on Tuesday rebuffed the government’s bid to throw out a lawsuit challenging a citizenship question on the 2020 census, finding “strong” evidence Commerce Secretary Wilbur Ross acted in “bad faith” in saying it was needed for voting-rights enforcement.

New York, other states and localities and advocacy groups have challenged the addition of the question, arguing that it is geared toward diminishing participation in the census by immigrants here, lawfully and unlawfully, affecting congressional apportionment and federal funding formulas.

U.S. District Judge Jesse Furman said initial claims by Ross that the question was sought by the Justice Department for voting-rights enforcement were “potentially untrue” and undermined by later disclosures that Ross had weighed the change for months and asked Justice to weigh in.

The judge said the plaintiffs were entitled to explore the real reasons behind the change through expanded document production and depositions of Commerce and Justice officials.

“It now appears the idea of having a citizenship question started with Secretary Ross and not the Justice Department,” Furman said, noting the plaintiffs made a “strong“ showing that they may find evidence the voting-rights claim was a “pretext” and material “indicative of bad faith.”

During the 2 1/2 hour hearing, government lawyers argued that any undercount from the question would stem from individuals disregarding their legal duty to fill out the census form, not from government action, and said courts shouldn’t “second guess” Ross’s judgment about what data to collect.

Justice Department attorney Brett Shumate said the question was no different from other demographic data, like race and sex, had been included in census short forms until 1950 and had been included in the “long forms” distributed to one-sixth of residents as recently as 2000.

“It is a value judgment and a policy judgment as to what information the government should collect,” Shumate said, arguing that Congress could step in if it is dissatisfied. “There is no legal standard for the court to apply as to whether it is appropriate or not.”

But a lawyer for New York said any census questions likely to interfere with the prime mission the Constitution assigns to the census — an accurate count — merited scrutiny, and said the Commerce Department itself admitted a citizenship question would reduce initial response rates.

“That fact highlights the extreme and outlandish nature of the defendant’s conduct here,” said the state lawyer, Elena Goldstein.

“Whether it was unconstitutional in 1970 when the world was different is not before the court,” she told Furman. “. . . This question will inevitably jeopardize the count .  .  . and impact immigrant and Hispanic communities.”

Furman said he would issue a full ruling in the next two weeks on the government’s motion to dismiss, but at least some parts of the suit will survive, justifying continued document production about the decision making. Suits are also pending in California and Maryland.

New York Attorney General Barbara Underwood called the ruling a “major win,” warning that the question would change “decades of policy” and “threaten billions in federal funds and New York’s fair representation in Congress and the Electoral College.”


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