Bipartisan Coalition Now Includes 18 States, D.C., 9 Cities, 4 Counties, U.S. Conference of Mayors Amended Complaint Highlights New Information on Funding Risks as a Result of Citizenship

BALTIMORE, MD – Maryland Attorney General Brian E. Frosh, part of a bipartisan coalition of 18 states plus the District of Columbia, 9 cities, 4 counties, and the U.S. Conference of Mayors – filed an amended lawsuit to block the Trump administration from demanding citizenship information in the 2020 decennial Census, adding new co-plaintiffs and bolstering the arguments in their complaint.

“The Trump Administration’s decision to demand citizenship information is an attempt to reduce the count in Maryland and other states with significant immigrant populations,” said Attorney General Frosh. “Studies conducted by the Census itself demonstrate that citizens, visa holders, green card holders and others will decline to respond. This action could reduce Maryland’s representation in Congress and will jeopardize billions of federal dollars for schools, transportation, and critical social services.”

Moreover, the complaint highlights the extensive funding and resources plaintiffs have already dedicated toward encouraging participation in the 2020 Census, which did not account for the citizenship demand. The amended complaint also highlights recent comments by Census and other federal officials, such as Census Director Ron Jarmin’s remarks before Congress last month that he expected the negative impact of the citizenship demand on response rates to be “largely felt in various sub-groups, in immigrant populations, [and] Hispanic populations.”

Jarmin went on to testify that U.S. Commerce Secretary Wilbur Ross disregarded the Census Bureau’s recommendation against including the citizenship demand.

On December 12, 2017, the U.S. Department of Justice requested that the Census Bureau demand citizenship information in the 2020 Census form sent to every household in the United States, even though the Census is supposed to count all persons—citizens and non-citizens alike.

Under the Constitution, the Census Bureau has an obligation to determine “the whole number of persons in each state.” Yet demanding citizenship information in the Census is expected to depress participation among immigrants, causing a population undercount that would disproportionately harm states and cities with large immigrant communities. Non-citizens are counted in the Census for the purposes of federal funds, apportioning of congressional seats and Electoral College votes, and the drawing of state and local districts.

The lawsuit was brought under the Enumeration Clause of the U.S. Constitution, as this action by the Trump administration will impede an “actual Enumeration” 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.

The Census Bureau’s own research shows that the decision to demand citizenship information will “inevitably jeopardize the overall accuracy of the population count” by significantly deterring participation 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.

As the lawsuit describes, 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 demand would also cause irreparable harm as a result of the hundreds of billions in federal funds that are tied to demographic information obtained through the 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 distributional inaccuracies in the data states use to draw district lines.

Additionally, the citizenship demand would depress Census participation within the states’ diverse immigrant and undocumented populations, leading to inaccurate responses and a significant undercount of the states’ residents. As a result, an undercount of population in states that are home to large immigrant communities will impair fair representation, a principle fundamental to the fabric of our democracy.

The lawsuit, which was originally filed last month in the U.S. District Court for the Southern District of New York, is led by New York Attorney General Eric Schneiderman. It was amended to add Colorado; Central Falls, RI (the site of the 2018 end-to-end test of the Census); Columbus, OH; Pittsburgh, PA; Cameron County, TX; El Paso County, TX; Hidalgo County, TX; and
Monterey County, CA as co-plaintiffs. The new co-plaintiffs join 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 U.S. Conference of Mayors in the lawsuit.