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Judge Enjoins Department of Commerce

The Department of Commerce has been enjoined by a federal judge from including the citizenship question in the upcoming Census.

The case began on March 26, 2018, when Secretary of Commerce Wilbur L. Ross, Jr., announced that he would reinstate a citizenship question in the Decennial 2020 Census. In 1960, out of a fear that the question would depress the count for already “hard to count” groups, the Census stopped including the citizenship question in the general census.

Plaintiffs in 18 states, the District of Columbia, 15 cities and counties, the U.S. Conference of Mayors and a group of NGOs filed suit in the U.S. District Court for the Southern District of New York, challenging the reinstatement of the citizenship question.

After a bench trial, U.S. District Court Judge Jesse M. Furman issued an opinion in New York, et al. v. U.S. Department of Commerce, No. 18-cv-2921 (Jan. 15, 2019), finding that Secretary Ross had violated the Administrative Procedure Act (APA) in certain ways, including 1) the decision was arbitrary and capricious; 2) the Secretary had failed to notify Congress as required by the APA; and 3) the Secretary’s reason for instituting the question, in order to enforce the Voting Rights Act of 1965, was pretextual (although the Court did not specifically find that the reason was a pretext for discrimination). Judge Furman vacated the Secretary’s decision and enjoined the Department of Commerce from including the citizenship question in the Census unless and until the legal defects are cured.

Judge Furman’s opinion is extensive (277 pages). In the opinion, he detailed the history of the Census, expressed his concern over the government’s strenuous efforts to stop the litigation, and addressed all of the issues presented. He acknowledged the opinion was quite long, but explained that he wants to be sure there is an extensive record given the certainty of an appeal.

We will continue to follow this case as it progresses through the appeal process. The length of this process could in and of itself prevent the citizenship question from being included in the 2020 Census.

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