The U.S. Census Bureau, a division of the U.S. Department of Commerce, conducts a census every ten years. The census surveys the number of persons in each household and, in the process, gathers certain demographic information about those persons. The Bureau’s stated goal in administering the census “is to count every person living in the United States once, only once and in the right place.” In 2018, the Department of Commerce announced the final list of questions for the 2020 decennial census that it will submit to Congress. This would include a question asking the citizenship status of every person in every household in the US, which has not been done since 1950. The citizenship question asked, “Is this person a citizen of the United States?” and required the respondent to select one of the following responses:

1) “Yes, born in the United States”;
(2) “Yes, born in Puerto Rico, Guam, the U.S. Virgin Islands, or Northern Marianas”;
(3) “Yes, born abroad of U.S. citizen parent or parents”;
(4) “Yes, citizen by naturalization – Print year of naturalization”; or
(5) “No, not a U.S. citizen

On April 17, 2018, the city of San Jose and the Black Alliance for Just Immigration (BAJI) filed a complaint against Wilbur Ross, in his official capacity as Secretary of the U.S. Department of Commerce; the U.S. Department of Commerce; Ron Jarmin, in his official capacity as Acting Director of the U.S. Census Bureau; and the U.S. Census Bureau. The plaintiffs sought a declaration that including the citizenship question on the 2020 Census violated the Constitution’s “actual Enumeration” mandate and the Administrative Procedure Act (APA) prohibition against “arbitrary and capricious” agency action. Further, to avoid irreparable harm, the plaintiffs sought an injunction prohibiting the Bureau from including the citizenship question on the 2020 Census.

The plaintiffs claimed that that fewer people would respond to the 2020 Census if it included a citizenship question. The inaccurate data would in turn result in funding allocations that would disadvantage San Jose and its residents. The data from the 2020 Census would be used not only to allocate congressional seats but also to determine funding for public health, education, transportation and neighborhood improvements, all of which are determined based on the population as determined by the Census. An increase in the undercount of persons living in San Jose, and specifically an increased undercount of minority populations, would lead to San Jose and its residents suffering harm through both lost representation in the United States House of Representatives and millions of dollars of foregone federal funding. BAJI claimed it would also be harmed due to the diversion of essential and limited resources—including time and money—from other important matters that it ordinarily would have been addressing through dialogues, presentations, workshops, publications, technical assistance and trainings to build alliances between African American and immigrant communities, in order to educate its diverse constituents regarding issues related to the census citizenship questions. Like the residents in San Jose, the minority and immigrant communities BAJI serves would also be deterred from responding to the 2020 Census because of the citizenship question.

The complaint was filed in the US District Court of California (Northern District – San Jose Division). The case was originally assigned to Magistrate Judge Howard R. Lloyd, but San Jose did not consent to a US Magistrate Judge’s jurisdiction, and the case was randomly reassigned to U.S. District Judge Lucy H. Koh. On May 22, 2018, Judge Richard Seeborg signed an order relating this case to an earlier case assigned to him. In that case, State of California v Ross (PB-CA-0049 in this Clearinghouse), the plaintiffs also claimed that the inclusion of a citizenship question operated by design to depress an accurate count of certain immigrant communities residing in the United States, in violation of the Constitution and the APA. Thus, San Jose v. Ross was reassigned to Judge Seeborg for all further proceedings.

The defendants moved to dismiss all claims asserted against them on June 21, but the judge rejected the motion, finding that the plaintiffs had standing to challenge the decision to add a citizenship question to the 2020 Census and that the plaintiffs had properly stated claims for relief under both the Enumeration Clause of the Constitution and the APA. On November 2, 2018, the plaintiffs filed a motion for partial summary judgment, and the defendants filed a motion for summary judgment. The court found that there was a material dispute of fact regarding whether, and to what extent, the addition of the citizenship question would impact the final enumeration of the public. The judge also concluded that there were material disputes regarding whether Secretary Ross failed to “consider an important aspect of the problem” before making his decision. The judge accordingly denied both parties’ motions for summary judgment.

As of February 2019, this case is ongoing.

Esther Vinarov - 02/09/2019


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