19 state attorneys general threaten legal action over census citizenship question

"What the Trump Administration is requesting is not just alarming, it is illegal."

Immigrants attend a DACA and TPS workshop on January 27, 2018 in Stamford, Connecticut. (CREDIT: John Moore/Getty Images)
Immigrants attend a DACA and TPS workshop on January 27, 2018 in Stamford, Connecticut. (CREDIT: John Moore/Getty Images)

Nineteen state attorneys general say requests to add a question about citizenship status to the 2020 Census would suppress participation, disproportionately affect immigrant communities, and affect the distribution of billions in federal funds. They also believe it’s against the law.

“This undercount would frustrate the Census Bureau’s obligation under the Constitution to determine ‘the whole number of persons in each state,’ threaten our states’ fair representation in Congress, dilute our states’ role in the Electoral College, and deprive our states of their fair share of hundreds of billions of dollars in federal funds that are allocated in part on decennial Census data,” the coalition of state attorneys general wrote in a letter to the Trump administration this week.

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The coalition includes Democratic attorneys general from California, New York, Massachusetts, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Mississippi, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, D.C. and Washington state, as well as Colorado’s governor. 

In December, the Department of Justice (DOJ) sent a letter to the U.S. Census Bureau claiming it needed better census data on citizenship to protect minority populations from voter discrimination. The letter, which was published by ProPublica on December 29, sparked outrage from rights activists and a former Census Bureau official who claimed such a question would suppress the participation of undocumented people who fear the information would be used for negative purposes.

Suppressing that participation would also counter the bureau’s nearly 230 year old goal of counting everyone in the country, not just citizens, according to ProPublica. Census population is updated every 10 years and impacts a range of issues, including the alignment of congressional districts and where federal dollars are distributed.

In the letter, addressed to Commerce Secretary Wilbur Ross, the coalition claims an inaccurate census could impact federal funding for certain states and incorrectly calculate the number of representatives to which each state is entitled.

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The letter also claims the DOJ’s reasoning for adding the question is unsupported by fact, making its request “arbitrary and capricious” under the Administrative Procedure Act.

The U.S. Constitution requires “counting the whole number of persons in each state,” according to the letter. However, adding such a question that would “fatally undermine the accuracy of the 2020 Census” and reduce response rates of immigrant and undocumented communities.

The coalition claims that, with the Census Bureau’s deadline to submit its final questionnaire to Congress coming up on March 31, the “threat to the accuracy of the 2020 Census is magnified by the extreme lateness of the Justice Department’s proposal.”

Even assuming that a citizenship inquiry could be designed that would not risk an unconstitutional undercount, it is far too late in the planning process for the Census Bureau to test and validate any such approach,” the signers wrote.

Should the administration choose to go forward with its plans to implement a citizenship question, it will undoubtedly be met with legal pushback.

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“What the Trump Administration is requesting is not just alarming, it is illegal,” California Attorney General Xavier Becerra said in a release this week. “…If a citizenship question is added to the 2020 U.S. Census Bureau questionnaire, [the California Department of Justice is] prepared to take any and all necessary legal action to protect a full and accurate Census. This is clearly an attempt to bully and discourage our immigrant communities from participating in the 2020 Census count.”

California Secretary of State Alex Padilla added, “We will not sit idly by while this administration undermines yet another pillar of our democracy.”