Supreme Court to Review Census Citizenship Question

In April the Supreme Court will hear argument in a case that will determine whether a citizenship question will appear in the 2020 census. A decision in Department of Commerce v. New York is expected by the end of June, in time presumably to include or exclude the question from the print version of the census.

In January a federal district court held that a question about citizenship may not be included in the 2020 census. Because time is of the essence, instead of following regular procedure and appealing this ruling to the Second Circuit, the federal government asked the Supreme Court to review the district court’s decision immediately. While the Court is already accepting cases to be heard next term it agreed to hear the census case this term. 

In March 2018 Secretary of Commerce Wilbur Ross issued a memorandum stating he would add the question (for the first time since 1960). He claimed the Department of Justice (DOJ) which wanted the data to enforce the Voting Rights Act’s prohibition against diluting the voting power of minority groups. The Census Bureau “strenuously” objected warning “that adding a citizenship question would harm the quality of census data and increase costs significantly and that it would do so for no good reason because there was an alternative way to satisfy DOJ’s purported needs that would not cause those harms.”

A number of state and local governments and nonprofits sued the Secretary claiming that adding this question is arbitrary and capricious in violation of the Administrative Procedure Act (APA). The APA prohibits federal agencies from acting in a manner that is arbitrary and capricious or not in accordance with law.

The court found numerous APA violations in the manner in which the question was added to the census. For example, “[Ross] failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices — a veritable smorgasbord of classic, clear-cut APA violations.”

Judge Furman summarizes the significance of having an accurate census for state and local governments in his 277-page opinion:  “[The census] is used to allocate hundreds of billions of dollars in federal, state, and local funds. Even small deviations from an accurate count can have major implications for states, localities, and the people who live in them — indeed, for the country as a whole.”