A federal judge in California ruled Wednesday against the Trump administration’s move to add a citizenship question to the Census.
U.S. District Judge Richard Seeborg, of the Northern District of California, said that the addition of the question was a violation of the Administrative Procedure Act. Unlike the judge in New York who also ruled against the question, Seeborg also said that the question violated the Constitution’s Enumeration Clause, which requires the “actual Enumeration” of the population every decade to be used for congressional apportionment.
In doing so, he blocked the administration from adding the question — even if it found a way to do so that was legal under the administrative law.
The Supreme Court has taken up the New York case for review and will hear arguments next month.
The legal fight over adding the question, which has not been on the decennial census that goes out to every household since 1950, has major consequences for voting rights. Census data is used to determine how many members of Congress each state gets, and also shapes how those districts, and how state and local legislative districts are drawn.
An undercount of immigrant communities, as is expected to occur if the question stays on the 2020 survey, will diminish the political power of urban, more diverse areas of the country while boosting the representation of more rural, less diverse regions. It will also skew how government resources are doled out.
Judge Seeborg said in his decision Wednesday said that “the inclusion of the citizenship question on the 2020 Census threatens the very foundation of our democratic system—and does so based on a self-defeating rationale.”
The California case was a consolidation of two lawsuits, one brought by the state of California and the other by a civil rights group and the city of San Jose.
The judge said that Commerce Secretary Wilbur Ross’ decision to add the question was “arbitrary and capricious, represented an abuse of discretion, and was otherwise not in accordance with law.”
He said the Commerce Department’s effort to get it added was a “cynical search to find some reason, any reason, or an agency request to justify that preordained result.”
The Trump administration has argued that the question would assist the Justice Department with its enforcement of the Voting Rights Act — a claim that has been refuted widely by election law experts and civil right advocates.
Judge Seeborg called the administration’s official justification a “mere pretext and the definition of an arbitrary and capricious governmental act.” He also pointed to the fact that Census Bureau experts had advised Ross against adding the question because it would discourage the participation of certain communities.
“While it is of course appropriate for an incoming cabinet member to advocate for different policy directions, to solicit support for such views from other agencies, and to disagree with his or her professional staff, this record reflects a profoundly different scenario: an effort to concoct a rationale bearing no plausible relation to the real reason, whatever that may be, underlying the decision,” the judge said.
In discussing his finding of a Enumeration Clause violation, the judge said that adding a citizenship question is “fundamentally counterproductive to the goal of obtaining accurate citizenship data about the public.”
“This question is, however, quite effective at depressing self-response rates among immigrants and noncitizens, and poses a significant risk of distorting the apportionment of congressional representation among the states,” the judge said.
For these reasons, the judge said he was imposing an injunction broader than the one handed down in the New York case, where the judge blocked the administration from adding a citizenship question for the reasons Ross announced last year.
Judge Seeborg’s decision blocks the administration from adding the question for whatever reason, even if administration managed to find a basis that complied with the Administrative Procedure Act.
“Defendants do not get another bite at the apple,” Judge Seeborg said Wednesday, with regards to his enumeration clause findings. “Defendants are hereby enjoined from including the citizenship question on the 2020 Census, regardless of any technical compliance with the APA.”
Seeborg addressed the dispute in the litigation over the so-called administrative record, which refers to the set of internal documents and communications that Ross drew upon to make his decision to add the question. Already, the question over whether courts could consider evidence beyond what was in the administrative record has gone up to the Supreme Court. The Supreme Court blocked a deposition of Ross but allowed another deposition and other additional discovery go forward.
Seeborg said his decision on the APA violation could be made based on the administrative record alone. However he said that he had the authority to look beyond the administrative record when assessing the Enumeration Clause claim.
His opinion Wednesday knocked the Trump administration for at first withholding the full administration record. The Justice Department initially turned over 1,320 pages to be part of the record, before later supplementing it additional production that made it 13,000 pages total.
“Defendants’ initial failure to disclose the full administrative record suggests bad faith in disclosing the true basis of Secretary Ross’s decision,” Seeborg said. He added that the initial set of records “mischaracterized Secretary Ross’s decision-making process and omitted critical information” about a letter the Justice Department wrote requesting the question.
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