Voting Rights and Democracy

New York, et al. vs. U.S. Department of Commerce, et al.

In New York, et al. vs. U.S. Department of Commerce, et al., the U.S. Supreme Court is considering whether the addition of a citizenship question to the 2020 Census violates the Constitution or federal law.

In Brief

The Constitution requires the federal government to count all people living in the United States.
Curbing manipulation of the Census by the political branches was one of the main reasons for including the Census Clause in the Constitution.
A citizenship question does not serve any Census-related purpose, would hurt under-counted communities, and does not help enforce the Voting Rights Act.

Case Summary

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.

Case Timeline

  • June 15, 2018

    CAC files amicus brief with the Southern District of New York

    S.D.N.Y. Amicus Brief
  • July 3, 2018

    The district court hears oral argument

  • July 26, 2018

    The district court rejects the Defendants’ request to dismiss the lawsuit

  • January 15, 2019

    The district court rules on the merits

  • January 25, 2019

    The government asks the Supreme Court to hear the case without an appeal to the Second Circuit

  • February 15, 2019

    The Supreme Court agrees to hear the case

  • April 1, 2019

    CAC files an amicus brief with the U.S. Supreme Court

    U.S. Sup. Ct. Amicus Brief
  • April 23, 2019

    The Supreme Court will hear oral arguments

More from Voting Rights and Democracy

Voting Rights and Democracy
April 24, 2019

OP-ED: The Census Case Will Define the Roberts Court

More than two centuries ago, the Constitution’s Framers decided the United States would be the...
By: David H. Gans
Voting Rights and Democracy
April 23, 2019

Supreme Court conservatives appear ready to OK Trump’s census citizenship question

Los Angeles Times
The Supreme Court’s conservative justices appeared ready on Tuesday to uphold the Trump administration’s plan...
Voting Rights and Democracy
April 23, 2019

RELEASE: Court’s Conservatives Send Troubling Signals On Integrity Of 2020 Census

“The integrity of the 2020 Census is clearly at issue in this case, but nothing...
By: Brianne J. Gorod, David H. Gans, Elizabeth B. Wydra
Voting Rights and Democracy
April 13, 2019

Inside Trump administration’s mysterious plan to secure a 2020 census citizenship question

USA Today
Wilbur Ross had just started running the Department of Commerce, but he was growing impatient...
Voting Rights and Democracy
April 11, 2019

Annotated Guide to the Amicus Briefs in the Supreme Court’s Citizenship Question Cases

Brennan Center for Justice
As the Supreme Court takes up challenges to the 2020 Census citizenship question, almost 50...
Voting Rights and Democracy
April 12, 2019

Lincoln Ideas Forum: Voting Rights at Lincoln’s Cottage

Host: Grateful American™ Foundation
Join us as we bring together experts, scholars, and the public in an exploration of...
Participants: Brianne J. Gorod, Lillian Cunningham (Moderator), Robert Tsai, Elaine Weiss, Jason Torchinsky