Challenge To Census Citizenship Question Can Proceed, Judge Rules

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Kevin Daley Supreme Court correspondent
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A lawsuit challenging the insertion of a citizenship question into the decennial census can proceed to trial, a federal judge in New York ruled Thursday.

U.S. District Court Judge Jesse Furman ruled that the administration may have added the question with discriminatory intent, in violation of the Constitution’s equal protection guarantees.

Critics of the Trump administration say a citizenship question discourages illegal aliens from participating in the census, depriving states with high concentrations of foreign nationals of federal funding, seats in Congress, and electoral votes.

The court did not find that adding a citizenship question to the census is unlawful — Furman noted that the federal government has used the census to gather data about U.S. residents since the founding era, and inserted a question as to citizenship status as early as 1820. Rather, the judge found the case could proceed because of evidence that the question was inserted with discriminatory intent.

“[Plaintiffs] plausibly allege that Secretary Ross’s decision to reinstate the citizenship question on the 2020 census was motivated by discriminatory animus and that its application will result in a discriminatory effect,” Furman wrote. (RELATED: Mitch McConnell Is Ready To Play Hardball To Get Kavanaugh Confirmed)

The judge explained that several facts create the impression that the administration inserted the question with discriminatory ambitions.

First the stated rationale for Ross’ decision appears inaccurate. Though the secretary told a congressional committee that the citizenship question was added at the request of the Justice Department, a federal opens record lawsuit showed that administration officials — Steve Bannon among them — were discussing the matter early in 2017. Emails obtained in the lawsuit show Ross aides pledging to lobby DOJ on the census in May 2017.

Second, the policy process behind the decision was unconventional. Furman said that Ross “made the decision to add the question without the lengthy consideration and testing that usually precede even minor changes to the census questionnaire; in fact, it was added without any testing at all.”

New York Attorney General Barbara Underwood, who is leading a coalition of states and cities who are challenging the citizenship question in court, cast Thursday’s decision as a significant victory.

“Today’s decision is a big win for New Yorkers and everyone across the country who cares about a fair and accurate census,” she said. “As we’ve argued, the Trump administration’s plan to demand citizenship status as part of the census is unlawful — and it would potentially cause a huge undercount that would threaten billions in federal funds and New York’s fair representation in Congress and the Electoral College.”

A trial is expected to start in October.

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