On March 26, 2018—many years into preparation and testing for the 2020 Census—the Secretary of the U.S. Department of Commerce ordered the Census Bureau to add a citizenship question to the Census, turning a blind eye to the overwhelming evidence that this question will deter participation by immigrants across the country who do not want an official record of their immigration status and fear that their responses will be used by the government to harm them and their families. The Secretary also announced that the government would use administrative records to double-check the accuracy of responses to the citizenship question. The State of New York and others sued the Department of Commerce in federal district court for violating the Constitution’s Census Clause, which requires an “actual Enumeration” of all persons in this country, the Census Act, and the Administrative Procedure Act (“APA”).

In January 2019, following a trial on the merits, the district court ruled that the citizenship question violated federal law and enjoined its use.  In a careful and well-reasoned 277-page opinion, the district court held that plaintiffs had standing to sue and that the citizenship question violated the APA for multiple, independent reasons.  The court held that Secretary Ross violated Section 6(c) of the Census Act, which mandates data collection through administrative records to the “maximum extent possible.”  The court further found the addition of the citizenship question was “arbitrary and capricious,” concluding that Ross “alternately ignored, cherry-picked, or badly construed the evidence in the record before him; acted irrationally in light of the evidence and his own stated decisional criteria; and failed to justify significant departures from policy and practice.”  Finally, the Court found that Ross’s rationale that the citizenship question would help better enforce the Voting Rights Act was pretextual.

The Department of Justice asked the Supreme Court to hear the case, and in February 2019, the Court agreed.  In April, CAC filed a friend-of-the-court brief on behalf of current members of Congress and bipartisan former members of Congress in support of New York and its co-plaintiffs. In our brief, we make three arguments.  First, we explain that the Constitution requires the federal government to count all people living in the United States, whether they are citizens or noncitizens, whether they were born in the United States or in a distant part of the world.  The total-population standard—chosen by our Constitution’s Framers more than two centuries ago and reaffirmed in the Fourteenth Amendment following a bloody civil war—was considered crucial to ensuring equal representation.  Second, we argue that, to ensure that the constitutionally required count of all persons remains predominant, Congress has sharply limited the authority of the Secretary of Commerce to add new questions to the Census.  Under Section 6(c), Congress has mandated that the Secretary “acquire and use” information from administrative sources “[t]o the maximum extent possible” instead of “conducting direct inquiries.” Adding the new citizenship question contravenes this explicit requirement.  Third, we argue that the need to enforce the Voting Rights Act does not justify the Secretary’s blatant violation of Section 6(c).  Since the passage of the Voting Rights Act in 1965, the Census has never asked all persons to report their citizenship status.  This is a specious justification for undercutting what the Constitution mandates: a count of all the people, regardless of their citizenship status.

In a 5-4 decision, the Supreme Court held that the decision to add a citizenship question to the census was pretextual, concluding that the Administration’s claim that including the citizenship question would help enforce the Voting Rights Act was “contrived” and did not provide the “reasoned explanation” required of agencies. The Court further explained that, based on the administrative record, the “V[oting] R[ights] A[ct] played an insignificant role in the decisionmaking process” and that Secretary Ross’ “explanation for agency action . . . is incongruent with what the record reveals about the agency’s priorities and decisionmaking process.” For that reason, the Supreme Court remanded the issue back to the agency for further consideration. The Administration subsequently announced that it would begin printing the forms for the 2020 Census without a citizenship question.