CLC Sues DOJ Over Unlawful Silence in Decision-Making Process Over Census Citizenship Question

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Following a request made by the U.S. Department of Justice (DOJ), Secretary of Commerce Wilbur Ross announced in March that the 2020 U.S. Census will include a question regarding citizenship. The DOJ claims that the data from this question will help to better enforce the Voting Rights Act (VRA) and provide more accurate and in-depth information about the demographics within the United States. 

A citizenship question has not been asked by the U.S. Census Bureau since 1950, although a citizenship question was included in the long-form version of the Census that was sent to one out of every six U.S. households until after the 2000 Census. There is now a citizenship question included in the American Community Survey from the Bureau, which is an ongoing survey sent to a random sample of U.S. households. 

The addition of the citizenship question could discourage both documented, but in particular undocumented immigrants from participating in the 2020 Census. Although federal law does prohibit the Census Bureau from releasing identifying information to another individual or agency for 72 years, there are many people who don’t believe their information will remain anonymous and fear it could be used to target them by another government department. These concerns have also been exacerbated by shifts in immigration policy from the Trump administration. 

In addition to concerns about answering the citizenship question, federal law says that refusal to answer a census question or intentionally giving a false answer can result in a fine. A returned census form that is incomplete can also lead to a phone call or in-person visit, which was the case in 2010 where the Census Bureau hired more than 600,000 door-knockers. 

The Census count is used to distribute seats in the House of Representatives, draw legislative districts, and distribute federal funds. A skewed census count could not only affect the number of representatives allocated to a certain state but could also lead to the government undercounting the amount of federal funding a state receives. An inaccurate Census would negatively impact all states, but particularly states with high immigrant populations. It would also impact the ability for states to ensure minority voting protections as a whole.

John Gore, the acting assistant attorney general for the DOJ’s civil rights division, defended the citizenship question in a hearing before the House Committee on Oversight and Government Reform last Friday. He argued that the addition of the question would help to better enforce the VRA. This is demonstrably false. 

However, Gore refused to explain the reasoning behind adding the question because of the DOJ’s policy against discussing topics that are relevant to pending lawsuits. Gore stated that “since the department submitted its letter, four lawsuits have been filed against the Department of Commerce challenging its decision to reinstate a question regarding citizenship to the 2020 Census questionnaire. The Justice Department is defending these lawsuits.” 

During the hearing, Representative Carolyn Maloney (NY) requested that the committee chairman issue a subpoena that would force Gore to answer their questions. However, the motion was tabled. 

Campaign Legal Center (CLC) has been working to find out these answers. In February, CLC filed two Freedom of Information Act (FOIA) requests to both the DOJ and U.S. Census Bureau and sought expedited processing for both requests. The Civil Rights Division of DOJ denied CLC’s request on February 28, claiming the responsive documents are privileged and subsequently exempt from disclosure. 

Today CLC and the law firm Buckley Sandler filed a new federal lawsuit under FOIA challenging the failure by the DOJ to release information about the reasoning behind the addition of the citizenship question. CLC is requesting that the court order the DOJ to disclose the requested records. The public deserves to know how the census arrived at its decision to include the citizenship question. Decisions about the census are the bedrock of how our representation is distributed across the country and are critical to ensuring that such representation is fair for all residents.