On June 27, 2019, the U.S. Supreme Court affirmed the Southern District of New York ’s decision to block the addition of the citizenship question to the 2020 Census in Department of Commerce v. New York (18-966) and remanded the case for further proceedings. The Court agreed that Commerce Secretary Wilbur Ross and the Department of Commerce’s rationale for adding a citizenship question to the census was pretextual stating, “the evidence tells a story that does not match the explanation the Secretary gave for his decision.”
Based on the totality of the evidence, the Court’s decision affirms the lower court’s finding of pretext on the part of the Secretary of Commerce. Agencies must “offer genuine justifications for important decisions.” The Commerce Department’s “sole stated” rationale for including the citizenship question—better Voting Rights Act (VRA) enforcement—is “incongruent with what the record reveals.” Overwhelming evidence about the timeline of the Secretary’s decision to add the citizenship question “reveal[s] a significant mismatch between the decision the Secretary made and the rationale he provided.” Accordingly, although the Court recognized the Secretary’s right to add a citizenship question under the Census Act and Constitution, the reasoning provided is not consistent with the review required by administrative law.
The National Asian Pacific American Bar Association (NAPABA) and the Asian American Legal Defense and Education Fund (AALDEF) both support the decision of the Court in blocking the Department of Commerce from adding their untested citizenship question. In addition to the evidence of intentional discrimination, NAPABA and AALDEF both hope the lower courts will engage in a careful and deliberate reconsideration of the full record, including the newly discovered evidence.
NAPABA President Daniel Sakaguchi said: “We are pleased that the Court ultimately rejected the Department of Commerce’s argument to include the citizenship question as pretextual and ‘contrived.’ Permitting the question to be added would have resulted in a significant undercount of immigrants and communities of color, leading to discriminatory cutbacks in resources and underrepresentation in Congress, in state houses, and in local government. The courts should continue to discredit the post-hoc reasoning of the Administration in its attempts to stop a fair and accurate count. It is incumbent on community leaders and attorneys to ensure that everyone is counted as part of 2020 Census.”
AALDEF Executive Director Margaret Fung said: “We are glad that the Supreme Court agreed with what AALDEF and NAPABA asserted in our joint amicus brief opposing the census citizenship question: that ‘the VRA enforcement rationale—the sole stated reason—seems to have been contrived.’ The government never intended to better enforce the VRA, as reflected in the fact that this administration has not brought any VRA enforcement actions. Asian Americans are the fastest growing racial group in this country and the largest segment of new immigrants. We will continue the fight to ensure that everyone in our country is properly counted in the 2020 Census and that our community receives its fair share of resources and representation.”
NAPABA and AALDEF led sixty-four Asian American and Pacific Islander organizations in filing an amicus brief outlining the negative impacts the addition of the citizenship question would have on the AAPI community, due to the resulting undercount.
NAPABA and AALDEF are grateful to lead pro bono counsel Albert Giang, 2018 Recipient of the NAPABA Pro Bono Award, NAPABA Amicus Committee Co-Chair, and Partner at Boies Schiller Flexner LLP (BSF) in Los Angeles; Miguel A. Gradilla and Ziwei Hu of BSF; NAPABA Amicus Committee Co-Chair, Radha Pathak of Stris & Maher LLP; Meredith Higashi of the NAPABA Civil Rights Committee; Jerry Vattamala and Patricia Yan of AALDEF; and Navdeep Singh and the NAPABA staff for their joint efforts in this case.
A copy of the decision can be found here.
