Groups File Amicus Brief in SCOTUS 2020 Census Citizenship Case

Today, the Lawyers' Committee for Civil Rights Under Law, Public Counsel, and Manatt Phelps & Phillips LLP filed an amicus brief on behalf of their clients, the City of San Jose and the Black Alliance for Just Immigration, in Department of Commerce v. New York, 18-966, a case arising in New York Federal Court and being heard before the Supreme Court in April, in which the lower court ruled that the Administrative Procedure Act bars the inclusion of a citizenship question on the 2020 census.

The brief argues that Secretary of Commerce Wilbur Ross's decision to add a citizenship question to the 2020 census was both unlawful under the Administrative Procedure Act and unconstitutional as it will lead to an undercount of Latino and immigrant populations. As the brief states: "There is no legitimate justification for imperiling the accuracy of the census by depriving communities with concentrations of those populations of their right to equal representation and of their proportionate share in the substantial federal funding that is based on the census."

In the brief, the groups also state that the decision was outside all norms of administrative decision-making: "It is difficult to identify a comparable situation in our case-law, where the administrative record so clearly shows that a cabinet officer decided on a course of action and then post hoc orchestrated a charade of administrative regularity to make it seem as if his decision were not preordained." The Secretary's decision is impossible to sustain, the brief argues, because Secretary Ross said that asking the question was more important than any risks to the accuracy of the census. When he made that decision, however, Secretary Ross knew providing citizenship data to the Department of Justice (DOJ), who he said had asked for the data, was not a high priority to DOJ because he had to persuade the department to ask him to ask the question, intervening personally with then-Attorney General Sessions. Additionally, Secretary Ross's own scientists at the Census Bureau had told him that the risks to the accuracy of the census from adding the question were severe.

The Lawyers' Committee, and co-counsel Public Counsel and Manatt Phelps & Phillips, LLP, represent the City of San Jose and the Black Alliance for Just Immigration.

Ezra Rosenberg, Co-Director of the Lawyers' Committee for Civil Rights Under Law's Voting Rights Project: "We're confident that, upon reviewing this extraordinary record of administrative misfeasance, that the Court will reach the same result as did both the California and New York trial courts: Secretary Ross's decision to add the citizenship question was not only contrary to the advice of his scientific advisors, but also will result in a census count that will prejudice people of color, whose communities will not receive their full share of federal funding which is based on an accurate count."

Sam Liccardo, Mayor, San Jose, CA: "Secretary Ross's decision to add a citizenship question to the 2020 Census undermines our belief that in San Jose everyone counts. We are hopeful that upon review, the Court will find the Trump Administration's proposed changes violate the Administration Procedure Act and the Enumeration Clause of the United States Constitution, and would threaten critical funding for the essential services - such as healthcare, housing, and education - upon which all our residents depend."

Nana Gyamfi, Executive Director of the Black Alliance: "We welcome the Supreme Court's decision to address the procedural and constitutional challenges to the 2020 Census citizenship question. The trial court in our case saw through Commerce Secretary Ross's 'sham' justification for the question, and confirmed that the citizenship question is nothing other than an unlawful and racist attempt to discourage the participation of Black and Brown immigrants in the 2020 Census. We look forward to the Supreme Court affirming our trial court's decision and the importance of accurately counting Black immigrants. Black immigrants need the representation and resources determined by the Census, including funding for education and public health, and any efforts designed to deter us from being accurately counted in the 2020 Census must be rejected."

John Libby, Partner at Manatt, Phelps & Phillips: "The Court has asked the parties in the New York case to brief and argue the question of whether the addition of a citizenship question violates the Constitution's Enumeration Clause even though that claim was not tried in New York. As amici we can present evidence from our trial record that the question will clearly violate the Constitution and will lead to an undercount of Latino and immigrant communities."

The Lawyers' Committee for Civil Rights Under Law and its co-counsel brought their own suit against Secretary Ross in California federal court in 2018, which had ruled in their favor, finding that Secretary Ross's decision violated the Administrative Procedure Act and the Enumeration Clause of the United States Constitution -- a decision not reached by the New York court -- because adding the citizenship question would lead to an under-count of communities of color and immigrants. Such an under-count would, in turn, lead to a loss of congressional representation and a fair share of federal funding for jurisdictions with heavy concentrations of these communities.

The judge in the case City of San Jose, et al. v. Ross had issued an order permanently stopping Ross from adding the citizenship question to the 2020 Census. The Department of Justice has sought expedited review in the case, but the U.S. Supreme Court has yet to rule on DOJ's request. In the meantime, the Court has agreed to entertain whether the constitutional issue could be an alternate ground for relief, along with the Administrative Procedure Act claim, in the New York case.

Oral argument in the New York case is set for April 23.

Read the full brief here.