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Federal judge rules census citizenship question lawsuit can proceed

New York, other states and advocacy groups that sued contend a citizenship question will skew the counts because immigrants here illegally and others may fear to return the form.

Commerce Secretary Wilbur Ross, who added a citizenship

Commerce Secretary Wilbur Ross, who added a citizenship question to the census, is shown in Washington on July 16.  Photo Credit: AP/Manuel Balce Ceneta

A federal judge in Manhattan on Thursday cited remarks from President Donald Trump that could show “animus toward immigrants of color” as he gave the go-ahead to a lawsuit challenging the addition of a citizenship question to the upcoming census as an effort to undercount immigrants.

U.S. District Judge Jesse Furman, who signaled his intent to let the suit proceed at a hearing last month, said the citizenship question was within Commerce Secretary Wilbur Ross authority but Trump’s remarks supported a claim the administration might have acted out of bias.

He singled out the president’s comments identifying some immigrants as “horrendous” and “animals” and calling those from statistically impoverished nations “people from shithole countries.”

“Plaintiffs identify several statements made by President Trump himself in the months before and after Secretary Ross announced his decision that . . . could be construed to reveal a general animus toward immigrants of color,” the judge wrote.

The ruling marked the latest case in which judicial distaste for Trump’s comments has served as ammunition to attack administration actions in court — including his travel ban, eliminating protection for young people who came to the United States illegally as children, and ending temporary protected status for immigrants from Haiti and elsewhere.

The census is required by the Constitution, Counts of “persons” present illegally and legally affect Congressional apportionment and distribution of federal funds.

New York, other states and advocacy groups that sued contend a citizenship question will skew the counts because immigrants here illegally and others may fear to return the form. Ross has argued it was requested by the Justice Department to aid voting rights enforcement, and statistical adjustments could correct any increase in nonresponse by immigrants.

Furman rejected the claim that a citizenship question violated the Constitution, saying it had been asked in different forms until 2000 and Ross had wide authority to gather demographic information. “Citizenship status has been a subject of the census for most of the last two hundred years,” he wrote.

But he said there was “plausible” evidence to support efforts to prove two other claims — that Ross was using the Justice Department as a “pretext” and had improper reasons for acting, and that the question’s inclusion reflected discriminatory intent.

Furman drew Trump into the case despite admitting that none of the president’s remarks actually related to the census, and Trump hadn’t made the decision on a citizenship question. The president’s re-election campaign, the judge noted, said Trump “officially mandated” it after Ross adopted it.

“The statements help to nudge . . . plaintiffs’ claim of intentional discrimination across the line from conceivable to plausible,” Furman wrote.

The judge emphasized that he was not ruling on the citizenship question or deciding if the discrimination allegation was true, only that further evidence could be collected to try to prove the claim.

New York Attorney Gen. Barbara Underwood nonetheless declared the ruling a “big win.” A Commerce spokesman praised the ruling that Ross had authority to ask about citizenship and said he was “confident” Furman will decide Ross’s discretion was “lawfully exercised.”

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