CLC v. DOJ (Census FOIA)

CLC filed suit against the Department of Justice (DOJ) for the second time for its failure to produce any documents related to its December 2017 request to the Department of Commerce to add a citizenship question in the upcoming 2020 U.S. Census. Americans deserve to understand DOJ’s involvement in this political maneuver, which voting rights advocates fear will lead to systemic undercounting of minority populations.

Since that time, the public has learned new details about Secretary Wilbur Ross’s March 2018 decision to add the citizenship question to the 2020 Census. He initially claimed in testimony before Congress that DOJ “initiated” the request and his decision was “responding solely to the Department of Justice’s request” to add the question (supposedly to support the DOJ’s enforcement of the Voting Rights Act). Recently released documents contradict that claim, showing that Ross initiated the request. As early as August 2017 – months before DOJ’s letter – Ross bemoaned receiving “no update” from DOJ on “the issue of the census question” and suggesting he would “call the AG” to push the matter along.

Secretary Ross’s decision to add this question – despite analysis from the Census Bureau finding that it would be “very costly” and “harm the quality of the Census count” – sparked an uproar and a wave of litigation with states, cities, counties, mayors and nonprofits suing to block the question’s addition. These suits, which highlight the risk such a question poses to the integrity of the Census, have produced an interesting public record providing background to understand the Department of Commerce’s decision to add the citizenship question.

So far, however, the DOJ’s involvement remains opaque. To get answers as to the DOJ’s role in this political maneuver, CLC filed FOIA requests to DOJ in February 2018. The Civil Rights Division of DOJ denied CLC’s request, withholding every responsive document under claimed exemptions to FOIA. CLC filed a lawsuit in June 2018 to compel the Civil Rights Division to comply with its obligations under FOIA.

Two other divisions of DOJ – the Office of the Attorney General (OAG) and Justice Management Division (JMD), the office that sent the “request” – have failed to respond to CLC’s request. While the Civil Rights Division claims its documents enjoy a blanket privilege from disclosure, OAG and JMD have simply not answered. OAG and JMD’s responses are over four months late under FOIA’s legal deadlines.

To force OAG and JMD to end their delay, CLC partnered with the law firm Buckley Sandler to file a lawsuit in July 2018 in the U.S. District Court for the District of Columbia. The suit seeks to force OAG and JMD to produce any documents relating to the DOJ’s “request” to add the citizenship question.

This lawsuit comes on the heels of the U.S. District Court for the Southern District of New York’s recent decision in New York v. U.S. Dep’t of Commerce allowing the plaintiffs to go forward with their claim that Secretary Ross’s decision was motivated by intentional discrimination against minority communities. The court suggested that the DOJ agreed to provide the request as a pretext for Secretary Ross’s discriminatory decision:

• Secretary Ross’s sole proffered rationale for the decision, that the citizenship question is necessary for litigation of Voting Rights Act claims, may have been [a] pretext[] [for discriminatory intent]. For one thing, there is no indication in the record that [DOJ] and civil rights groups have ever, in the fifty-three years since the Voting Rights Act was enacted, suggested that citizenship data collected as part of the decennial census would be helpful, let alone necessary, to litigate such claims. For another, while Secretary Ross initially (and repeatedly) suggested that [DOJ’s] request triggered his consideration of the issue, it now appears that the sequence of events was exactly opposite. In his memorandum, Secretary Ross stated that he ‘set out to take a hard look’ at adding the citizenship question ‘[f]ollowing receipt’ of a request from [DOJ] on December 12, 2017. Yet in a June 21, 2018 supplement to the Administrative Record, Secretary Ross admitted that . . . he and his staff asked [DOJ] if it ‘would support, and if so would request, inclusion of a citizenship question.’ 2018 WL 3581350 (S.D.N.Y. Jul. 26, 2018) (slip op. at 63-64) (alterations in original).

The court also indicated that it was receptive to the plaintiffs’ claim that “Defendants’ decision was motivated at least in part by intentional discrimination against immigrant communities of color.” DOJ needs to disclose the records showing its involvement in this flawed and discriminatory process. Who was lobbying them to send this “request”? Why did they agree? The U.S. Census should not be weaponized for political gain. It should include all people living in the country, so that it accurately reflects growing immigrant and minority communities across the country. CLC is fighting so that the public knows the truth about the DOJ’s complicity in the politicization of the census.