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 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, along with nineteen other states, thirteen cities, and the United States Conference of Mayors, 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.

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 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.  We then explain that Congress’s power to determine the “manner” of conducting the Census does not permit an end run around the requirement to count all persons, citizens and noncitizens alike.  Curbing manipulation of the Census by the political branches was one of the main reasons for including the Census Clause in the Constitution.  Last, we explain that a citizenship question does not serve any Census-related purpose, and that the Trump administration’s claim that it helps to enforce the Voting Rights Act is false.  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.

The district court rejected the Defendants’ request to dismiss the lawsuit, refusing to hold that Secretary Ross’s decision to add a citizenship question was insulated from judicial review. On the question of whether the addition of a citizenship question violates the Enumeration Clause of the Constitution, the court found that a citizenship question is a “permissible . . . exercise of the broad power granted to Congress . . . in the Enumeration Clause,” stressing that the federal government has long gathered demographic data as a part of the Census.

While the court ruled that Secretary Ross has the authority under the Enumeration Clause to include a citizenship question, the court permitted two challenges to Secretary Ross’s decision to go forward: (1) plaintiffs’ claim that his decision to add a citizenship question was arbitrary and capricious in violation of the Administrative Procedure Act (APA), and (2) plaintiffs’ claim that the citizenship question was motivated by discriminatory animus in violation of the equal protection guarantee contained in the Due Process Clause of the Fifth Amendment.

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 an explicit statutory mandate that required data collection through administrative records to the “maximum extent possible.”  The court further found the addition of 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. For those reasons, the district court vacated Ross’s decision to include a citizenship question on the 2020 census and remanded the matter to the Secretary of Commerce.

Case Timeline

  • June 15, 2018

    CAC files amicus brief

    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 23, 2019

    The Supreme Court will hear oral arguments

More from Voting Rights and Democracy

Voting Rights and Democracy
March 19, 2019

VIDEO: CAC Celebrates Women’s History Month

As Constitutional Accountability Center celebrates Women’s History Month, we champion the women along America’s Arc...
Voting Rights and Democracy
U.S. Supreme Court

Rucho v. Common Cause; Lamone v. Benisek

In Rucho v. Common Cause and Lamone v. Benisek, the Supreme Court is considering whether partisan gerrymandering by the states in the drawing of congressional districts violates the Elections Clause, the First Amendment, or the...
Voting Rights and Democracy
January 21, 2019

OP-ED: The Voting Rights Act is in tatters. Let’s honor King’s legacy by saving it.

The Washington Post
Amid all the paeans to the memory of the Rev. Martin Luther King Jr. that...
By: David H. Gans
Voting Rights and Democracy
November 19, 2018

OP-ED: How Congress Can Use Its Constitutional Powers to Guarantee Voting Rights for All

Take Care Blog
In collaboration with Election Law Blog, Take Care is pleased to present a series of posts offering thoughts on...
By: David H. Gans
Voting Rights and Democracy
U.S. District Court for the Northern District of California

California v. Ross; City of San Jose v. Ross

In California v. Ross and City of San Jose, et al. v. Ross, a federal district judge considered whether the addition of a citizenship question to the 2020 Census violates the Census Clause of the...
Voting Rights and Democracy
U.S. District Court for the District of Maryland

Kravitz vs. U.S. Department of Commerce

In Kravitz, et al. vs. U.S. Department of Commerce, et al., a federal district judge is considering whether the addition of a citizenship question to the 2020 Census violates the Census Clause of the Constitution.