A federal judge in New York on Thursday denied the Trump administration's request to dismiss a lawsuit over the inclusion of a citizenship question in the 2020 census, finding that the challengers "plausibly" alleged that the decision to include the question was motivated by "discriminatory animus."
In a 70-page opinion, US District Judge Jesse Furman cited evidence presented by the plaintiffs that the administration deviated from standard procedures, that Commerce Secretary Wilbur Ross's official reason for including the question was a pretext, and that President Donald Trump's reelection campaign had said the president "officially mandated" the move.
This is the first major ruling out of the multiple lawsuits filed across the country challenging Ross's decision to add the controversial citizenship question to the decennial census.
Furman did not rule on the merits of the case, but rather that the plaintiffs had brought enough of a case to survive the first round of challenges from the government. The judge ruled in two cases that had been consolidated — one filed by the New York attorney general's office along with 17 states and Washington, DC, and another filed by immigrant advocacy groups.
"Today’s decision is a big win for New Yorkers and everyone across the country who cares about a fair and accurate Census. We are gratified that the court is allowing our lawsuit to move forward. This decision also follows a court order earlier this month that required the Trump administration to provide vital documents and information on how the decision to demand citizenship information was made," New York Attorney General Barbara Underwood said in a statement.
Commerce Department spokesperson Kevin Manning said in a statement that as the case proceeds, the evidence would show that Ross "lawfully exercised his discretion."
"The Department of Commerce is pleased the court found that Secretary Ross has broad authority over the Census. We are confident that this includes the authority to reinstate a citizenship question and that Plaintiffs’ remaining claims will be dismissed after discovery shows that the Secretary lawfully exercised his discretion to do so. The Secretary’s and the Census Bureau’s priority remains conducting a complete and accurate 2020 Census," Manning said.
Justice Department spokesperson Devin O'Malley said in a statement that, "The Justice Department looks forward to continuing its defense of the citizenship question’s reinstatement."
Other lawsuits over the citizenship question are also pending in Maryland and California. The challengers, which include Democratic state attorneys general, immigrant advocacy groups, the NAACP, and other groups, argue that including the question would hurt the accuracy of the count because immigrant and minority communities may not be willing to participate. Data from the census is not available to immigration authorities, but advocates say that wouldn't ease fears within communities that are already wary of any interaction with the federal government.
Furman wrote that the plaintiffs in New York had also "plausibly" alleged that the risk of scaring off immigrant communities from participating was higher because of what the challengers described as Trump's "anti-immigrant rhetoric."
The last time the census asked every person responding to indicate citizenship was in 1950, according to the opinion. Furman noted that Census Bureau officials had rebutted efforts to add the questions back in, until this year. Ross in March directed the bureau to reinstate the question for the 2020 census — planning for the count begins years in advance. Ross pointed to a letter from the Justice Department saying that more detailed citizenship data was needed to enforce voting rights.
Furman rejected the government's argument that the court couldn't review Ross's decision — that the case raised a "political question" that judges should not wade into. The judge said that although it was true that Congress gave broad discretion to the commerce secretary in administering the census, the US Supreme Court and other lower courts had previously heard a number of census-related challenges over the years.
"The need for judicial deference does not justify judicial abdication," Furman wrote.
The judge did not rule out the possibility of a citizenship question in the future, noting that similar questions had been part of past counts. He dismissed a claim filed under the Enumeration Clause of the US Constitution — the section that mandates the census — finding that all three branches of government had already concluded that the census could include questions not directly related to a headcount.
Claims about Ross's power under the enumeration clause could not proceed, Furman ruled, but claims about how he had exercised that power and why he did so could. The plaintiffs argued that the administration had violated the equal protection guarantees of the Fifth Amendment by acting with discriminatory intent against immigrant and minority communities and including a citizenship question that would have a discriminatory effect. Furman wrote that the challengers laid out enough allegations to keep that claim alive.
The plaintiffs pointed to Trump's anti-immigrant comments and argued that although Ross was the formal decision-maker, Trump's own reelection campaign had told supporters that the president "officially mandated" the move. None of Trump's statements — such as referring to migrants as "animals" and describing certain places as "shithole countries" — were directly about the census, but the judge wrote that racial slurs or racially charged language can serve as evidence of a public official's motivation.
Furman also dismissed the administration's invocation of the US Supreme Court's ruling earlier this year upholding Trump's travel ban executive order. There was no reason to think the court's deference to the president on national security and foreign affairs issues in that case — related to his power to exclude foreign nationals from the United States — should apply in a census-related challenge, Furman wrote.
"In fact, even with its 'circumscribed judicial inquiry,' the Hawaii Court itself considered 'extrinsic evidence' — namely, President Trump’s own statements," Furman wrote. "If anything, therefore, Hawaii cuts against Defendants’ arguments rather than in their favor."