Department of Commerce v. New York

The ACLU represented a coalition of civil rights groups, including the New York Immigration Coalition (“NYIC”), in a challenge to the U.S. Department of Commerce’s decision to add a citizenship question to the 2020 census, which the department claimed was for the purpose of facilitating enforcement of the Voting Rights Act. The suit alleged that the citizenship question would cause noncitizen households not to respond to the census, leading to an undercounting, and ultimately, underrepresentation, of communities of color. The suit alleged constitutional violations under the Enumeration Clause and the Equal Protection Clause as well as violations of the Census Act and the Administrative Procedures Act (APA). The APA creates a process by which courts can review a government agency’s justifications for taking an action and strike down the action if the decision is found to be arbitrary or capricious.

The district court found for the NYIC coalition, holding that Commerce Secretary Wilbur Ross violated the APA by acting in a manner that was arbitrary and in spite of overwhelming evidence that the question would cause undercounting of immigrant communities. The court found that the Secretary “failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices.” The court also found substantial evidence that the reasons given for the decision to include the census question were pretextual, and suggested that discriminatory intent may have been found if the plaintiffs had been permitted to gather additional evidence. Because of the mismatch between the Secretary’s stated reasons for adding a citizenship question to the census and the actual evidence on the record, the district court found the ruling to be arbitrary and capicious and vacated it under the APA.

The Trump Administration appealed the ruling to the Supreme Court, which reversed in part and affirmed in part the district court’s holding in a June 2019 decision. Then-Voting Rights Project Director Dale Ho argued on behalf of the civil-rights group plaintiffs at the Supreme Court.

The Supreme Court reversed the lower court’s finding that the Secretary violated the Census Act, but upheld the ruling that the Secretary violated the APA by providing pretextual justification for the decision. The Court concluded that the Secretary provided a sole reason for including the citizenship question—facilitating enforcement of the Voting Rights Act—yet the record showed that the Voting Rights Act played almost no part in the discussions surrounding the decision and was merely a “distraction.” The Court found that the APA required the Secretary to provide a full and honest account of the justifications for its decision, and that his failure to do so justified the district court’s ruling vacating the Secretary’s decision to include a citizenship question on the 2020 census.

The Justice Department and Secretary Ross initially announced that they would abandon the citizenship question and begin to print census forms without it, but President Trump later announced a decision to reverse course and pursue a renewed effort to include the question. In late July, the Trump administration finally abandoned plans to include the citizenship question on the census, a significant victory for voting rights advocates.