The U.S. Supreme Court Should Stop Census Citizenship Question

U.S. Secretary of Commerce Wilbur Ross
U.S. Secretary of Commerce Wilbur Ross speaking at an event in West Palm Beach, Florida. Photo by Gage Skidmore via Creative Commons

On April 23, the United States Supreme Court will hear a challenge to Secretary of Commerce Wilbur Ross’s decision to ask every household in the country about the citizenship status of its members during the 2020 census.

Two separate federal courts have held that the sole justification provided by Secretary Ross – that obtaining this information is necessary for the enforcement of the Voting Rights Act of 1965 (VRA) – was pretextual, and that his decision to include the citizenship question was irrational and violated federal laws governing administrative decision-making.

The record shows that Secretary Ross arrived at the decision to include the census question early in his tenure, after conversations with political operatives Steve Bannon and Kris Kobach. Indeed, Campaign Legal Center (CLC) obtained documents through a FOIA request that demonstrated that Secretary Ross approached the Department of Justice (DOJ) and asked them to formally request that the 2020 census include a question about citizenship. Despite initial resistance, DOJ complied, but only after Secretary Ross sought the intervention of then-Attorney General Jeff Sessions.

In a letter drafted by John Gore, then-acting head of the Civil Rights Division, DOJ asserted that the citizenship question was necessary to enforce the VRA – an assertion Gore later acknowledged to be untrue in sworn deposition testimony.

CLC, along with more than 130 civil rights organizations, has signed onto an amicus brief supporting the plaintiffs at the U.S. Supreme Court, arguing not only that the citizenship question unnecessary, but that it would also severely undermine efforts to enforce the VRA and cause substantial harm to the communities the VRA is designed to protect.

Indeed, the census has not asked about citizenship on the decennial census since before the enactment of the VRA in 1965. Thus, as amici’s successful history of VRA litigation shows, citizenship data from other sources, including the Census Bureau’s American Community Survey (ACS) has capably served enforcement purposes throughout the entire history of the VRA. 

Not only did Secretary Ross fail to articulate why the citizenship question is necessary for VRA enforcement, but he also ignored overwhelming evidence that adding a citizenship question to the 2020 census would undermine the accuracy of the census by exacerbating existing challenges in counting minority and immigrant communities.

There is near-unanimous expert consensus – including among the Census Bureau’s own staff – that adding the question will provide less accurate data than what is already collected by the ACS, in addition to less accurate data on overall population. Thus, not only is adding a citizenship question unnecessary for VRA enforcement, it will actually make enforcement more difficult.

As the lower courts have found, the decision to add a citizenship question has no rational justification. CLC joins a chorus of civil rights groups asking that the U.S. Supreme Court affirm the district court decisions and prohibit Secretary Ross from including the citizenship question on the 2020 census.

Molly is a Senior Legal Counsel on CLC's Litigation team.