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Memo
From: Squire Patton Boggs

Date: July 9, 2019

Subject: Update on the 2020 Census and the Citizenship Question

A census is an official count or survey of a population. The U.S. Census (“Census”), taken decennially, is
mandated by the United States Constitution. The Census is used to determine allocations of federal funds,
grants, and support to the individual states. It also helps determine the reapportionment of the Congress.
The Census is overseen by the U.S. Census Bureau, which is part of the Department of Commerce
(“Commerce”).

I. Background

In March 2018, the U.S. Census Bureau announced that it would be adding a citizenship-related question
to the 2020 census. Secretary of Commerce Wilbur Ross stated that the question was added in response to
a U.S. Department of Justice (“DOJ”) request; according to Ross, the information provided would be used
to better enforce the racial discrimination provisions of the Voting Rights Act. However, many states and
cities, as well as civil rights groups, believed that the information would be used to target non-citizens
residing in the country illegally. The acting Census Bureau chief has noted that sharing personal census
information is a felony offense, but that did little to assuage fear.

II. Potential Impact

While the Census Bureau acting director initially told lawmakers that the inclusion of a citizenship
question would not have a big impact, he did note that it could have an “important” impact on certain
communities. Since this initial assessment, the Census Bureau released a working paper that estimated the
inclusion of a citizenship question would reduce responses of non-citizen households by eight percent.

III. Department of Commerce v. New York

New York State, joined by seventeen other states, fifteen cities, and a myriad of civil rights groups filed a
case in the United States District Court for the Southern District of New York against the Department of
Commerce.

Commerce attempted to have the challenge dismissed, but the case was heard. During discovery,
information regarding conversations with Kris Kobach and Steve Bannon, two Trump strategists known
for their anti-immigration views, came to light. These revelations cast doubt on Secretary Ross’s
proffered reason for adding the citizenship question.

On January 15, 2019, U.S. District Court Judge Jesse Furman ruled in favor of the plaintiffs. Calling the
addition of the question “unlawful” due to violations of the Administrative Procedure Act, Judge Furman
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left open the possibility that the question could be included once Secretary Ross provided a “real
rationale” for adding the question. He also noted that plaintiffs did not provide enough evidence to prove
that the decision to include the question was designed to discriminate against communities of color.

a. Case Moves to the Supreme Court

On February 15, 2019, the Supreme Court issued a one-line order agreeing to hear oral arguments. In
April, during the arguments, the Justices asked why lawmakers did not take action if they wanted to stop
the inclusion of the question.

After oral arguments finished, new information came to light involving Republican strategist Thomas
Hofeller. Prior to his death, Hofeller had advocated for the addition of a citizenship question to help
Republicans gain additional seats during redistricting. Some of the information in his documents showed
an early draft of a DOJ letter to Commerce requesting a citizenship question. According to court filings,
the letter bore “striking similarities” to the eventual letter sent by DOJ, prompting questions of whether
Ross’s earlier testimony regarding the genesis of the question was false.

Questions arose as to whether or not the Supreme Court would take the new information into
consideration. A federal judge ruled that such information could be considered, if it was material.

b. Supreme Court Decision

On June 27, the Supreme Court released its decision. While it did not bar the addition of the citizenship
question, it did state that the proffered reason given “seems to have been contrived.” Commerce will now
have to provide additional rationale in order to include the question.

c. What That Means

Effectively, the Supreme Court decision will likely bar the Census Bureau from including the Census
question. Due to the size and scope of the endeavor, printing for the paper version of the Census begins
early. The government claimed a June 30th deadline for beginning that process, which is why the Supreme
Court expedited its consideration of the case. While the Administration delayed the process beyond June
30, it is reported that census forms are being printed without the citizenship question. To turn this process
around would be a significant undertaking and likely require additional resources that would have to be
appropriated by Congress. Representative Jose Serrano (D-NY), Chairman of the House Commerce-
Justice-Science Appropriations Subcommittee stated he would not support additional funds to reprint the
census forms to add the citizenship question.

Also making the job especially difficult are the recent revelations about Thomas Hofeller – any additional
legal action will have to defend against claims that his research prompted the inclusion of the question.
Also contributing to the difficulty is the Supreme Court’s schedule. The Supreme Court has now ended its
term and will not begin again until October. Any additional court action will likely work its way to the
Supreme Court, which will not hear cases until October at the earliest.

IV. Moving Forward

There are a number of possible scenarios that could take place, including (1) DOJ and President Trump
drop the case and allow the Census to move forward without the addition of the citizenship question; (2)
the question may be omitted from the paper version of the Census but included on the digital version; (3)
DOJ continues with the legal process to add the citizenship question to the Census, and the case goes to

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the Supreme Court; or (4) President Trump attempts to add a citizenship question to the Census via
executive order.

The first option appears unlikely. On July 2, the issue seemed settled: a DOJ attorney sent an email
stating that the Census Bureau would move forward with printing the Census absent the citizenship
question. However, on July 3, President Trump tweeted “The News Reports about the Department of
Commerce dropping its quest to put the Citizenship Question on the Census is incorrect or, to state it
differently, FAKE! We are absolutely moving forward, as we must, because of the importance of the
answer to this question.”

It is also unlikely that the question is omitted from the paper version of the Census but included in the
digital version. It is generally understood that the paper version and the digital version of the Census are
the same.

Based on reports from the White House and DOJ attorneys, either of the latter two options seem most
likely. Justice Department lawyers have since told a federal judge that they will try to add a citizenship
question in a way that is “consistent with the Supreme Court’s decision.” One lawyer noted that it plans
on returning to the Supreme Court for instructions “to simplify and expedite the remaining litigation and
provide clarity to the process going forward.”

However, this will not be easy. The focus will now be on intentional discrimination, versus whether the
Commerce Department has the authority to add the question. As discussed above, since the original oral
arguments at the Supreme Court, additional evidence has come to light regarding Ross’s motives for
adding the question. The DOJ replaced the lawyers working on the case with a new group, meaning the
individuals who have been dealing with this matter for the last year are now gone and a new group must
get up to speed. The new lawyers will have to explain why the June 30 deadline for printing the Census,
which was considered a part of the reason the Supreme Court accepted and decided the case so quickly,
no longer seems important.

Should Commerce try and move forward with the question, it will have to prove to the federal court
judges involved in the case that the reason given for including the question is valid. No matter the
decision at the federal court level, the case will almost certainly be brought up to the Supreme Court once
again. As discussed above, the Supreme Court does not start its new term until October 2019. The Court
then can take months to issue a decision. The official Census start date is scheduled to start on January 21,
2020 in Toksook Bay, Alaska. It is unlikely the Court will have issued an opinion by then. The Justice
Department could file an emergency petition with the Supreme Court asking for expedited review, but
that would not cause the Court to begin its term early.

Another option reportedly being considered is an Executive Order from President Trump, directing the
Commerce Department to include the citizenship question. However, this would also present challenges.
First, it would almost certainly be challenged in court, and will face the same obstacles with the Supreme
Court’s schedule. Second, there is debate over whether an Executive Order can expand Secretary Ross’s
discretion on what to include in the Census. Opponents argue that the President is not able to command
congressionally unauthorized administrative action, while proponents claim it is within the President’s
purview.

V. Conclusion

It is likely that this question will continue to be debated until the Census is officially printed. House
Democrats have declared their intention to continue the investigation into Commerce’s decision to
include the citizenship question. We will continue to monitor the situation and provide relevant updates.

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