In addition to our work in the California census case, People For the American Way Foundation and allied organizations have filed a friend-of-the-court brief in Department of Commerce v. New York, which will be argued before the Supreme Court on April 23. All communities—particularly immigrants, low-income communities, and communities of color—should enjoy the recognition, freedom, and economic and political power promised by the U.S. Constitution. In our brief, we argue that the census citizenship question gravely threatens these diverse communities and will undermine voting rights enforcement. Our introduction follows below. Click here to download a PDF copy of the full brief.
INTEREST OF AMICI CURIAE1
The Leadership Conference on Civil and Human Rights (“The Leadership Conference”) is the nation’s oldest, largest, and most diverse coalition of more than 200 national organizations committed to the protection of civil and human rights in the United States. The Leadership Conference was founded in 1950 by leaders of the civil rights and labor rights movements, grounded in the belief that civil rights would be won not by one group alone but through a coalition. The Leadership Conference works to build an America that is inclusive and as good as its ideals by promoting laws and policies that further civil and human rights for all individuals in the United States.
The Brennan Center for Justice at N.Y.U. School of Law (“The Brennan Center”) is a not-for-profit, nonpartisan think tank and public interest law institute that seeks to improve systems of democracy and justice. The Brennan Center was founded in 1995 to honor the extraordinary contributions of Justice William J. Brennan, Jr., to American law and society. Through its Democracy Program, The Brennan Center seeks to bring the ideal of representative self-government closer to reality by protecting the right to vote and promoting a full and accurate census count. The Brennan Center conducts empirical, qualitative, historical, and legal research on the census and regularly participates in voting rights cases before this Court.
Additional amici, listed in the Appendix, are grassroots, advocacy, labor, legal services, education, faith-based, and other organizations committed to the protection of civil and human rights in the United States. Amici are united by an interest in ensuring that all communities—particularly immigrants, low-income communities, and communities of color—continue to enjoy the recognition, freedom, and economic and political power to which they are entitled under the United States Constitution.
The amici who have joined together on this brief have spent decades advocating and litigating around issues concerning equal representation. Members of this coalition have vast knowledge and experience concerning the census and the uses to which it has been put, including the enforcement of voting rights. The government’s addition of a citizenship question to the 2020 census gravely threatens to both undermine the enforcement of voting rights and harm the diverse communities amici represent—communities who stand to lose the most if the 2020 census includes a citizenship question.
SUMMARY OF ARGUMENT
The central question in this case is whether the district court correctly concluded that Secretary of Commerce Wilbur Ross acted “arbitrar[ily] and capricious[ly]” in deciding to add a citizenship question to the decennial census. Pet. App. 9a-10a.2 The answer turns in part on whether Secretary Ross’s reliance on the Department of Justice’s proffered explanation for this decision—that including a citizenship question is “critical” to enforcement of the Voting Rights Act (VRA)—is “rational.” Pet. Br. 3, 13, 36; see also Pet. App. 564a (letter from Arthur Gary to Ron Jarmin justifying citizenship question as “critical to the [Justice] Department’s enforcement of Section 2 of the Voting Rights Act and its important protections against racial discrimination in voting”); Pet. App. 548a, 550a (memorandum from Wilbur Ross to Karen Dunn Kelley citing “DOJ’s request for improved [citizen voting-age population] data to enforce the VRA”).
The answer to that question is simple: There is no factual or legal basis—none—to support the position that collecting citizenship data from the decennial census is needed for VRA enforcement. In fact, modifying the short-form census to ask for the citizenship status of everyone in the country, as Secretary Ross has proposed, would undermine VRA enforcement. Despite Petitioners’ protestations to the contrary, there is no question that the DOJ’s proffered VRA rationale was “so flawed that it was arbitrary and capricious to rely on [it].” Pet. Br. 36.
Amici would know. They have been among the most experienced guardians of the VRA and the values it reflects for the past 54 years. In that time, existing citizenship data drawn from sample surveys or the long-form census sent only to small subsets of American housing units have been more than sufficient for robust, effective enforcement of the VRA. Amici are not aware of a single case in which the success of plaintiffs in a VRA enforcement action turned on the unavailability of citizenship data from the decennial census—that is, data derived from the surveys used for the constitutionally required, once-a-decade head count. Indeed, the DOJ has never, in the 54-year history of the VRA, cited a VRA-related need for citizenship data from the decennial census. What is more, even this administration’s former acting head of the DOJ’s Civil Rights Division (the division that enforces the VRA) admitted in his deposition in this case that the citizenship question is not necessary to enforce the VRA.3
Nor is there any evidence that such data would assist VRA litigation either today or in the future. As representatives of minority communities, amici recognize the practical effects the citizenship question would have on response rates in their constituencies. And from their experience enforcing and advocating around the VRA, amici understand the harmful legal consequences of a differential undercount. Based on their experience and expertise, amici know that census citizenship data would be less complete and less accurate than existing citizenship data. Collecting citizenship data on the decennial census would therefore serve the opposite of Secretary Ross’s stated purpose: It would severely undermine VRA enforcement. Indeed, a citizenship question would cause a disproportionate undercount of the very communities the VRA was enacted to protect, leading to dilution of their voting power and underrepresentation at all levels of government.
The public comments that the Census Bureau received regarding Secretary Ross’s decision reflect this broad understanding of the citizenship question’s negative consequences for the communities amici represent: A staggering 99.1 percent of the nearly 150,000 comments received related to the citizenship question (some 136,400 comments) opposed adding the question.4
Under these circumstances, Petitioners’ proffered VRA justification for the citizenship question is so implausible that it is impossible to treat it as a predicate for reasonable government action.
In short, including a citizenship question on the 2020 census will inflict grievous harm on poor people, immigrant communities, and communities of color with no countervailing benefit—and certainly not with the supposed voting rights benefit on which Petitioners stake their defense. The Court should affirm the decision below.