Kilmartin and Elorza Argue Citizenship Question is Unconstitutional, Arbitrary and will Fatally Undermine Accuracy of the Population Count
Attorney General Peter F. Kilmartin and Providence Mayor Jorge Elorza - part of a coalition of 18 Attorneys General, six cities, and the bipartisan U.S. Conference of Mayors - filed a lawsuit today to block the Trump administration from demanding citizenship information in the 2020 decennial Census. Demanding citizenship information will depress Census turnout in states with large immigrant populations, directly threatening those states' fair representation in Congress and the Electoral College, as well as billions of dollars in critical federal funds for education, infrastructure, Medicaid, and more. The lawsuit was opened to include the City of Providence as a plaintiff at the request of Attorney General Kilmartin.
The lawsuit, filed today in U.S. District Court for the Southern District of New York, challenges the constitutionality and arbitrariness of the decision to add the citizenship question to the 2020 decennial Census, which Attorney General Kilmartin, Mayor Elorza, and other plaintiffs argue will fatally undermine the accuracy of the population count and cause tremendous harm to the states and residents. The complaint filed with the Court is attached.
Decennial Census data is used to redraw House of Representatives districts, determines the number of seats each state receives in the United States House of Representatives and the number of electoral votes each state is provided in a presidential election, and is used to proportion federal funding to states and cities.
"Our Founding Fathers were clear when they wrote in our Constitution that the decennial census be an 'actual Enumeration' to ensure that every man, woman, and child residing within the United States be properly counted," said Attorney General Peter F. Kilmartin. "Such a count ensures equal representation in our House of Representatives, determines our influence in presidential elections, and dictates our share of federal funding for many programs in which our state and residents rely upon."
"It is in all of our interests, both citizens and non-citizens, to make sure that every person is counted," said Mayor Jorge O. Elorza. "Asking about citizenship status is sure to lead to an undercount and thus, a failed census. Including this question is reckless, unnecessary and potentially very costly. For every 1% of people who are not counted, the cost is approximately $55 million. We ask the administration to reconsider including this question and to ensure that the 2020 census is set up to succeed."
Under the United States Constitution, the Census Bureau has an obligation to determine "the whole number of persons in each state." Yet demanding citizenship information in the Census is expected to depress participation among immigrants, causing a population undercount that would disproportionately harm states and cities with large immigrant communities. Non-citizens are counted in the Census for the purposes of federal funds, apportioning of congressional seats and Electoral College votes, and the drawing of state and local districts.
On December 12, 2017, the U.S. Department of Justice requested that the Census Bureau demand citizenship information in the 2020 Census form sent to every household in the United States, even though the Constitutional requires counting all persons—citizens and non-citizens alike. The Department of Justice argued that the collection of such information was necessary to ensure proper enforcement of the 1965 Voting Rights Act. Yet as a coalition of Attorneys General argued in a letter sent to the Commerce Secretary in February 2018, the demand would have precisely the opposite effect by driving down participation in immigrant communities—a concern that is even more acute in today's political climate. The resulting undercount would deprive communities of fair representation when legislative seats are apportioned and district lines are drawn.
The lawsuit filed today is brought under the Enumeration Clause of the U.S. Constitution, as this action by the Trump administration will impede an "actual Enumeration" required by the Constitution. It is also brought under the Administrative Procedure Act, which permits courts to set aside unlawful or arbitrary and capricious agency decisions.
The lawsuit also noted the Commerce Department failed to include the citizenship question on the 2018 end-to-end test, which is currently underway in Providence County, the only county in the United States being tested. The end-to-end test is a dress rehearsal for the upcoming decennial Census, in which the Bureau tests and validates all major components, including operations, procedures, systems, and infrastructure. As a result, the test will not have assessed the content, language, layout or order of the citizenship query on the questionnaire, or the impact that the inquiry would have on response rates and accuracy.
An undercount in Rhode Island would result in the loss of tens of millions of federal funds annually, and quite possibly the loss of one of its two congressional seats. As a result of the 2010 Census, Rhode Island was allocated two seats to the House of Representatives, which it has enjoyed for more than 200 years. According to the Census Bureau estimates for 2017, the population of Rhode Island is 1,059,639. Based on these estimates, if a mere 157 persons that reside in Rhode Island are not counted in the 2020 Census, Rhode Island will lose one of its congressional seats.
The lawsuit also emphasizes the irreparable harm that will result from inaccuracies in the 2020 Census caused by demanding citizenship information. Hundreds of billions of dollars in federal funds are directly tied to demographic information obtained through the census, including the Highway Trust Fund and other Department of Transportation grants, Child Care Development Grants, and Medicaid. Consequently, inaccurate counts can deprive states of much-needed funds.
Among the programs Rhode Island receives its proportionate share of funding include:
• The federal Highway Trust Fund provides grants to states and municipalities for road construction and other surface transportation programs, which are allocated on the basis of local population estimates collected through the decennial census. In fiscal year 2015, Rhode Island received nearly $217 million in Highway Trust Fund grants.
• Under the Urbanized Area Formula Funding program, the federal Department of Transportation utilizes population figures from the most recent decennial census to calculate federal resources allocated to cities and states for planning, operating, and improving transportation. In fiscal year 2017, Rhode Island received more than $28 million in Urbanized Area Formula Grants.
• The federal Child Care and Development Fund allocates funding based on census information of the number of children below the age 13. In fiscal year 2015, Rhode Island received more than $11 million in Child Care Development grants.
As the Census Bureau's own research shows, the decision to demand citizenship information will "inevitably jeopardize the overall accuracy of the population count" by significantly deterring participation in immigrant communities, because of concerns about how the federal government will use citizenship information. These concerns are amplified by President Trump's anti-immigrant rhetoric and pattern of actions that target immigrant communities.
In Rhode Island, 22.3 percent of households did not mail back their 2010 Census questionnaire. "There is well documented anti-immigrant rhetoric from this Administration that has led to significant public distrust and fear of providing information from undocumented immigrants as well as legal immigrants who live in immigrant communities and mixed immigration-status households," added Kilmartin.
In 1980, the Census Bureau rejected the addition of a citizenship question, saying, "Any effort to ascertain citizenship will inevitably jeopardize the overall accuracy of the population count. Obtaining the cooperation of a suspicious and fearful population would be impossible if the group being counted perceived any possibility of the information being used against them. Questions as to citizenship are particularly sensitive in minority communities and would inevitably trigger hostility, resentment, and refusal to cooperate."
In 2009, all eight former Directors of the Census Bureau dating back to 1979 – who served under both Democratic and Republican presidents – affirmed that a citizenship question would depress participation and lead to a significant undercount, undermining the purpose of the Census itself.
As today's lawsuit describes, the Administration's decision is inconsistent with the Census Bureau's constitutional and statutory obligations, is unsupported by the stated justification, departs from decades of settled practice without reasoned explanation, and fails to consider the availability of alternative data that can effectively serve the federal government's needs.
The lawsuit was filed by the Attorneys General of New York, Connecticut, Delaware, Illinois, Iowa, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Virginia, Vermont, Washington, and the District of Columbia; the Mayors of New York City, Chicago, Philadelphia, Providence, San Francisco, and Seattle; and the bipartisan U.S. Conference of Mayors.