Closing Arguments in Trial on Census Question

Three weeks of testimony in a federal courtroom about the 2020 census have focused on one question: Did the Trump administration add a citizenship question to the census for political gain?

On Tuesday, the final day of the trial, opponents of the citizenship question accused the administration of deliberately trying to deter noncitizens from being counted. Lawyers representing the plaintiffs — state attorneys general, city governments and a host of civil-liberties advocacy groups — said the decision to add the question had been “reverse-engineered” to add a veneer of legality, then disguised in an official record that “likely was falsified.”

The extraordinary broadside, leveled during closing arguments, drew a muted response from Justice Department lawyers defending the government, who have argued repeatedly that Commerce Secretary Wilbur Ross had sweeping authority to alter the census as long as he followed minimal guidelines.

Judge Jesse M. Furman of U.S. District Court in New York will decide, probably within a few weeks, which version of events is correct. He will almost certainly not have the last word. The citizenship case is expected to reach the Supreme Court next year, with the justices under pressure to rule before an early summer deadline to lock in the wording of 2020 census forms for printing.

But Furman will nonetheless be weighing in on an issue with enormous stakes.

A significant undercount of minorities would skew the allotment of hundreds of billions of dollars in federal money, distort business decisions based on census data and potentially alter the reapportionment of state and local political districts and the House of Representatives in 2021. Because noncitizens live primarily in areas that vote Democratic, reduced census totals would likely increase Republican representation.

The trial, which examined reams of technical testimony on census arcana from statisticians and demographers, appeared to leave Ross and the Commerce Department on the defensive.

By its end, Justice Department lawyers had all but conceded that asking about citizenship would lead to an undercount of noncitizens and minorities. They argued instead that the government could deploy waves of extra census-takers — at additional millions of dollars in federal cost — to track those who do not respond.

And even if Ross’ decision was flawed, argued Brett A. Shumate, the defense team’s principal lawyer and a deputy assistant attorney general, the court did not have license to overturn it.

“All the secretary is required to do is provide a reasoned explanation” for adding the question, Shumate said. “He doesn’t have to choose the best option.”

But lawyers for the plaintiffs argued that Ross had only gone through the motions of weighing a decision that in fact had long been made: to preclude noncitizens and minorities from being fully represented in the head count.

Asked whether he was charging that the administration added a citizenship question to deliberately cause an undercount, one plaintiffs’ lawyer, John Freedman, replied, “Absolutely, your honor.” Freedman said later that the scant evidence in emails and other documents suggested that Ross and other administration officials were interested in the impact of a depressed count of noncitizens on the census totals used for reapportionment of the House of Representatives and other political districts in 2021.

Ross’ first recorded mention of the citizenship question came in an email in March 2017, sent days after he took office, in which a top aide replied to questions he had posed about whether noncitizens were counted in reapportionment calculations and whether previous censuses contained a citizenship question.

The two sides sparred at length during the trial over what adding the question could mean; the Census Bureau conservatively estimated this spring that it could reduce voluntary responses to the 2020 head count by 5.8 percent, or about 6 million households. That might be enough to shift a handful of congressional seats away from Democrats in states with large immigrant populations like California and Texas, one expert for the plaintiffs testified.

Shumate dismissed those estimates as unreliable Tuesday, saying that they were based on analyses of past Census Bureau surveys and not a test of the actual citizenship question under current conditions.

A central issue in the case was whether Ross’ consideration of the citizenship question violated the federal Administrative Procedures Act, which is intended to keep officials from making arbitrary decisions that are not in the public interest.

Ross originally said he had acted after the Justice Department told him it needed citizenship data to enforce the 1965 Voting Rights Act. He later admitted that he had discussed adding the question with senior Trump administration officials since at least the first months of Trump’s presidency, and that he had lobbied the Justice Department to request adding the citizenship question to the census — not the other way around. A senior Justice Department official said in a sworn deposition that data from a citizenship question was not actually required to enforce the Voting Rights Act, which has been litigated for decades without difficulty. In the weeks before Ross’ formal announcement, dozens of outside experts, from former Census Bureau directors to business and statistical groups, warned that a citizenship question would damage the accuracy and quality of the tally.

Weeks before the formal decision, the Census Bureau’s chief scientist, John Abowd, opposed adding the question and said that the bureau could meet the Justice Department’s enforcement needs more accurately and cheaply by drawing on administrative data like Social Security files.

In court arguments, Shumate said Ross’ entreaties to Justice Department officials were not an attempt to manufacture an excuse for a census decision he had already made, but were completely appropriate discussions between senior officials.

Not until the Justice Department actually requested the citizenship question last December, he said, did Ross begin to take what he called “a hard look” at the merits of the issue. When he did, Shumate said, he was not obliged to follow the advice of the Census Bureau or outside experts, but only to consider it.

The government’s critics say the effects of the decision could be tremendous. No general census has asked respondents to reveal their citizenship status since 1950. The plaintiffs contend that adding that requirement in 2020, amid the Trump administration’s high-profile campaign to block new immigrants and deport undocumented ones, will prompt even legal immigrants and minorities to boycott the census for fear of being targeted.