Today, Virginia Attorney General Mark R. Herring-as part of a coalition of 18 Attorneys General, six cities, and the bipartisan U.S. Conference of Mayors-filed a lawsuit to block the Trump administration from undermining the 2020 decennial census with a “poison pill” citizenship inquiry that the U.S. Census Bureau has said is likely to depress response and compromise the accuracy of the census. Demanding citizenship information would particularly depress Census turnout in states with large immigrant populations, directly threatening those states’ fair representation in Congress and the Electoral College, as well as billions of dollars in critical federal funds for education, infrastructure, Medicaid, and more.
“This poison pill from the Trump administration is about ideology, not accuracy,” said Attorney General Herring. “The Census is one of the most important things our government does. It determines how many congressional representatives and electoral votes Virginia gets, and how much federal money comes to the Commonwealth for things like healthcare, education, and transportation. There is overwhelming evidence that including this provision will cause underreporting and produce an inaccurate census, violating the Enumeration Clause in the Constitution, which calls for an actual count of all persons in the Country. In the current climate, many immigrants are already wary of the government, and there is no question that this is just another attempt to intimidate and instill fear in immigrant communities.”
The lawsuit filed today is brought under the Enumeration Clause of the U.S. Constitution, as this action by the Trump administration will impede an “actual Enumeration” of “the whole number of persons in each state,” as required by the Constitution. It is also brought under the Administrative Procedure Act, which permits courts to set aside unlawful or arbitrary and capricious agency decisions.
In their suit, the bipartisan coalition describes the reasons that the administration’s decision is inconsistent with the Census Bureau’s constitutional and statutory obligations, is unsupported by the stated justification, departs from decades of settled practice without reasoned explanation, and fails to consider the availability of alternative data that can effectively serve the federal government’s needs.
The lawsuit also emphasizes the irreparable harm that will result from inaccuracies in the 2020 Census caused by demanding citizenship information. Hundreds of billions of dollars in federal funds are directly tied to demographic information obtained through the census, including the Highway Trust Fund and other Department of Transportation grants, Child Care Development Grants, and Medicaid. Consequently, inaccurate counts can potentially deprive states of much-needed funds designed to protect low-income and vulnerable communities.
A total of $700 billion is distributed annually to nearly 300 different census-guided federal grant and funding programs. In FY2015, Virginia received over $953 million in Highway Trust Fund grants, over $131 million in Urbanized Area Formula Grants, and nearly $64 million in Child Care Development grants, all based on census data.
In addition to the significant financial implications of an inaccurate census, the decennial census is also used to apportion seats in the House of Representatives, and each plaintiff state relies on population information from the Census Bureau to draw statewide redistricting plans for their Congressional and state legislative districts. Demanding citizenship information would cause disproportionate undercounts in communities with immigrant populations and therefore prevent plaintiff states from fulfilling the one-person, one-vote constitutional requirement, as well as create inaccuracies in the data states use to draw district lines. Currently, immigrants account for 12.3 percent of Virginia’s population.
As the Census Bureau’s own research shows, the decision to demand citizenship information will “inevitably jeopardize the overall accuracy of the population count” by significantly deterring participation, particularly in immigrant communities, because of concerns about how the federal government will use citizenship information. These concerns are amplified by President Trump’s anti-immigrant rhetoric and pattern of actions that target immigrant communities.
In 1980, the Census Bureau rejected the addition of a citizenship question, saying, “Any effort to ascertain citizenship will inevitably jeopardize the overall accuracy of the population count. Obtaining the cooperation of a suspicious and fearful population would be impossible if the group being counted perceived any possibility of the information being used against them. Questions as to citizenship are particularly sensitive in minority communities and would inevitably trigger hostility, resentment, and refusal to cooperate.”
In 2009, all eight former Directors of the Census Bureau dating back to 1979 – who served under both Democratic and Republican presidents – affirmed that a citizenship question would depress participation and lead to a significant undercount, undermining the purpose of the Census itself.
The lawsuit was filed this morning in the U.S. District Court for the Southern District of New York by the attorneys general of New York, Connecticut, Delaware, Illinois, Iowa, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Virginia, Vermont, Washington, and the District of Columbia; the cities of New York City, Chicago, Philadelphia, Providence, San Francisco, and Seattle; and the bipartisan U.S. Conference of Mayors.