Native American groups have joined a lawsuit filed by attorneys representing Latino and Asian American plaintiffs alleging that the addition of a citizenship question to the 2020 Census was motivated by racial animus and will result in a severe undercount of minorities, according to civil rights attorneys.
“This unprecedented politicization of the constitutional duty to enumerate all persons is a serious danger to our democracy.”
Thomas A. Saenz, MALDEF
The amended complaint filed in federal court on July 9th, also alleges that the citizenship question was the product of a conspiracy by Donald Trump, former White House advisor Steve Bannon, Kansas Secretary of State Kris Kobach, and other cabinet members and government officials to violate the civil rights of communities of color. It is the first explicit claim of a conspiracy to deprive immigrants and minorities of their constitutional rights to equal representation and fair allocation of federal funds by adding a citizenship question to the 2020 Census.
MALDEF (Mexican American Legal Defense and Educational Fund), Asian Americans Advancing Justice | AAJC (Advancing Justice | AAJC) and the Law Office of Robert P. Newman filed the original suit on May 31. The amended complaint filed July 9th adds several new organizational plaintiffs, including the California Asian Pacific Islander Legislative Caucus and the California Legislative Black Caucus, along with Native American groups who would suffer an inaccurate count of tribal members who self-identify as citizens of their Tribal Nations and may therefore respond “no” if asked whether they are citizens of the United States. All of the plaintiffs stand to lose access to federal funding and lose representation in Congress, as well as state and local government, according to the lawsuit.
“The amended complaint helps to further detail the full scope of the politically-motivated and untenable decision to add an unnecessary question, with the specific design of reducing the count of immigrant communities and specifically undercounting the growing Latino community, which Donald Trump plainly views as a significant threat to his political aims,” said Thomas A. Saenz, MALDEF president and general counsel. “This unprecedented politicization of the constitutional duty to enumerate all persons is a serious danger to our democracy.”
The conspiracy claim in the amended complaint alleges a conspiracy to deny civil rights under 42 USC Section 1985, which was originally part of the Ku Klux Klan Act of 1871 that was enacted to combat attacks on African Americans after the Civil War. The amended complaint notes several exchanges of emails and phone calls about the citizenship question between Ross and Kobach, who was vice chairman of the Trump administration’s now-defunct voter fraud commission. At least one email was sent at the direction of Bannon, the former White House aide who frequently advocated for far-right and anti-immigrant policies before he was ousted last year.
“The White House and officials from the Department of Justice conspired with Kris Kobach and Steve Bannon to advance a white supremacist agenda by erasing immigrants and the communities tied to immigrants from data that is meant to include every single resident of the United States,” said Denise M. Hulett, MALDEF national senior counsel. “The excuse – that citizenship data is needed for the government to enforce the Voting Rights Act – is simply a pre-emptive ruse to fabricate a legal justification for their conspiracy. That lying dog won’t hunt.”
The original lawsuit was filed in U.S. District Court for the District of Maryland on behalf of Latino and Asian American social service non-profits, state legislative associations, civil rights groups, voters’ rights organizations, and community partnerships that would be forced to divert resources to combat a potential severe undercount in their respective communities.
“We took our fight to the courts because it is the obligation of our government that every individual, regardless of immigration status, be counted in the census,” said John C. Yang, president and executive director, Asian Americans Advancing Justice | AAJC. “A population as diverse as the Asian American and Pacific Islander community is already hard to count; it is at further risk of being undercounted with the addition of the untested and untimely citizenship question. We cannot let partisan politics interfere with a fair and accurate census when there is so much at stake.”
Census data are crucial to allocating seats in Congress, drawing accurate election districts and ensuring equitable distribution of federal funds for a wide range of vital programs like the Supplemental Nutrition Assistance Program (SNAP), Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), Section 8 housing vouchers and special education grants.
The Census Bureau eliminated a question on citizenship from the decennial form after the 1950 Census. It has only appeared since then in questionnaires sent to a small sample of the national population. Late last year, however, the U.S. Department of Justice abruptly requested the addition of a citizenship question to the Census, arguing it was necessary to help it enforce the federal Voting Rights Act, despite no showing that the data is necessary.
The lawsuit names Ross, Jarmin, and their respective agencies as defendants. It was filed in response to an order Ross issued in late March, just days before the statutory April 1 deadline for finalizing the 2020 Census questionnaire. The complaint charges that he added the question without prior assessment of its impact on an accurate count and without adequate explanation of why the question is necessary and how the information will be used.
The lawsuit also challenges the citizenship question because it would undermine the government’s constitutional responsibility of counting every person living in the U.S. every decade. The question also violates the Administrative Procedure Act requirement to comply with the Census Bureau’s rules for testing new questions.
With anti-immigrant rhetoric from the Trump administration at a fever pitch, civil rights and voting rights experts have repeatedly expressed concerns that adding an unnecessary citizenship question will stoke fears that the data will be used to target immigrant communities and cause non-citizens to shy away from Census questionnaires.