GREENBELT, Md. - A federal judge in Maryland ruled Friday against the government’s addition of a citizenship question to the 2020 Census, the third decision against the Trump administration on the issue.
Judge George Hazel, of the U.S. District Court for the District of Maryland in Greenbelt, found that the government violated administrative law when it decided to add the question last year. The ruling, like two earlier ones, will likely be appealed to the Supreme Court.
In his ruling, Hazel wrote, "The unreasonableness of Defendants' addition of a citizenship question to the Census is underscored by the lack of any genuine need for the citizenship question, the woefully deficient process that led to it, the mysterious and potentially improper political considerations that motivated the decision and the clear pretext offered to the public."
Hazel did not find enough evidence to support plaintiffs' claims that the government intended to discriminate against immigrants, Latinos and Asian Americans by adding the question, or that adding the question was part of a conspiracy within the Trump administration to violate the constitutional rights of noncitizens and people of color.
"We are disappointed by this ruling. Our government is legally entitled to include a citizenship question on the census and people in the United States have a legal obligation to answer," said Kelly Laco, a spokesperson for the Justice Department.The Commerce Department declined to comment.
Commerce Secretary Wilbur Ross' March 2018 announcement of the question caused an outcry among former Census Bureau directors, statisticians, civil rights organizations and Democratic lawmakers.
Opponents said the late addition, which did not undergo the years of planning and testing that new questions usually do, would lead to undercounts among immigrant communities and affect federal funding, apportionment and redistricting. They noted that the bureau's own analysis found that adding the question could jeopardize the accuracy of the survey. The government has said that it needs the question to better enforce the Voting Rights Act (VRA).
After two federal judges in New York and California earlier this year ordered the government to stop its plans to add the question, the Supreme Court is set to take up the question on April 23.
It will be one of the last oral arguments the high court hears this term, and the justices have put themselves in position to exceed their normal hour-long hearing if they decide it necessary.
Although three district judges have now ruled, the case comes to the high court in an unusual posture: No appeals court has reviewed any of the decisions, which is usually a prerequisite for Supreme Court consideration. But both sides agreed there was no time for that here, because the forms must be sent to the printer and the issue of adding the citizenship question must be decided by the end of June, which is also when the Supreme Court's term ends.
The court already has requested briefing on both issues on which Hazel sided with plaintiffs.
In all three trials, the Trump administration was found to have violated the Administrative Procedure Act, which governs the process by which federal agencies develop and issue regulations. In addition, the Maryland and California judges found the question to be unconstitutional because it would hinder the Constitution's requirement of an "actual enumeration" of the population every 10 years.
The lawsuits contended that Ross had ignored long-established protocol for adding a question and had gone against expert advice that criticized the plan.
A key element was the secretary's shifting statements about the origin of the request for the question to be added. Ross told Congress last spring that he was responding to a December 2017 request from the Justice Department, but the lawsuits uncovered emails indicating he was the one who asked the department to make the request.
Emails also showed Ross had discussed the addition months earlier with Stephen K. Bannon when he was White House chief strategist, as well as with Kris Kobach when he was Kansas secretary of state.
In his ruling, Hazel found that the government's rationale for adding the question to be "a mere pretext."
"The Secretary's own statements, along with the emails and documents contained in the Administrative Record, establish that the Secretary was pursuing a citizenship question with urgency long before he had any awareness of the purported VRA-enforcement rationale, which the record shows was manufactured by his staff," he wrote.
"At best, the Secretary ignored clear evidence that the citizenship question would harm the distributive accuracy of the Census for some mysterious reason known only to him. At worst, the Secretary intended to negatively affect the distributive accuracy of the Census by reducing immigrant response rates to the Census. Both possibilities disregard the need to accomplish an actual enumeration of the population-the constitutional purpose of the Census."
Plaintiffs in the Maryland case had additional claims. One, LUPE v. Wilbur Rosset al., accused the government of conspiracy, alleging the government added the question "to depress the count of immigrant communities of color, thereby decreasing this population's impact on and benefit from apportioned political power," and that Ross "engineered the Voting-Rights-Act rationale with the assistance of the Department of Justice to cloak Defendants' true purpose."
The other lawsuit in the Maryland trial, Kravitz et al v. United States Department of Commerce et al, said the question would harm a broad swath of people - including U.S. citizens - living in areas such as Prince George's County that have a high proportion of immigrants and minorities and are vulnerable to being undercounted. Prince George's residents have said they fear the question would cause them to lose services they depend on, such as road enlargement and special education programs.
Although Hazel did not find evidence to support the claims of conspiracy and intent to discriminate, he found plaintiffs had demonstrated a "substantial risk" that the addition of the question would lead to an undercount of Hispanics and noncitizens that would cause vote dilution from redistricting and malapportionment of congressional seats, as well as a loss of federal funding in their areas.
The Maryland trial was the only one that established that individuals would be harmed by the citizenship question, said Shankar Duraiswamy, an attorney with Covington and Burley who is lead counsel for the plaintiffs in the Kravitz case.
"I think it makes the impact of the question on individuals and communities that have high levels of Latinos and noncitizens particularly concrete," he said.
"Some will lose a congressional seat and all live in areas that will see their voting power diluted because of the redistricting process within their states," he said. "They will be drawn into overpopulated voting districts so their votes will count less than people in other parts that have fewer Latino and noncitizens."
Friday's ruling sends a strong message to the Supreme Court as they take up the case, said Thomas Wolf, counsel at Brennan Center counsel with the Democracy Program at the Brennan Center for Justice at the New York University.
"The drumbeat against the citizenship question only grows louder with today's ruling from the District of Maryland," he said. "The Justices of the Supreme Court will have to think long and hard before reversing rulings against the citizenship question from three separate courts."
But the Trump administration-in general, and particularly in this case-has been anxious to get the Supreme Court involved. It feels it has a better chance with the conservative majority on the court than more liberal judges in the district courts and courts of appeals. The strategy was vindicated last term when the Supreme Court upheld Trump's ban on travel from certain majority-Muslim countries after a string of defeats in lower courts.
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The Washington Post’s Robert Barnes contributed to this report.