The Lawyers’ Committee for Civil Rights Under Law, Public Counsel, and Manatt, Phelps & Phillips Claim Sec Ross Violated Administrative Procedure Act
WASHINGTON, D.C. – The Lawyers’ Committee for Civil Rights Under Law and Public Counsel, along with pro bono law firm Manatt, Phelps & Phillips, filed a motion on Friday seeking judgment to stop Secretary of Wilbur Ross from including a citizenship question on the 2020 Census. The motion was filed in the lawsuit brought on behalf of the City of San Jose and the Black Alliance for Just Immigration against the United States Department of Commerce in the Northern District of California.
On March 26, 2018, the Department of Commerce, at the direction of Secretary Wilbur Ross, set aside decades of practice and announced the 2020 decennial census will include a question asking the citizenship status of every respondent. The question will likely deter participation in the census, resulting in an undercount of immigrant communities and communities of color.
The motion is directed to the claims brought under the Administrative Procedure Act, (“APA”), and demonstrates that the Secretary’s action was arbitrary and capricious and contrary to law. The motion is based totally on Secretary Ross’s and the Census Bureau’s own documents, which show conclusively that he ignored express legal requirements forbidding any new topics to be added to the Census after March 2017, ignored settled Census Bureau protocol for the addition of questions to the Census, disregarded the advice of the entire professional scientific staff of the Bureau that adding the question would impair the quality of the Census data, and concocted a charade that the Department of Justice asked him to add the question – when his own documents show that he asked the Department of Justice, not the other way around. As the brief filed in support of the motion says, “Defendants’ actions are so egregious that the APA violation can be proved by their words alone.”
The motion is scheduled to be heard on December 7.
“This is an important motion, intended to get an expeditious ruling from the Court to stop this ill-conceived action by Secretary Ross in its tracks,” said Ezra Rosenberg, Co-Director of the Voting Rights Project at the Lawyers’ Committee for Civil Rights Under Law. “The deviation from settled rules of administrative regularity by the Secretary in this case is extraordinary. Secretary Ross first decided, for political reasons, that he wanted this question added – no matter what the consequences on the accuracy of the Census – and then took extreme efforts to try to justify his decision after the fact. His decision was a sham.”
“The Trump Administration has broken all the rules by attempting to subvert the basic principle of the Census and our democracy— that everyone counts and is to be counted,” said Mark Rosenbaum, director of Public Counsel Opportunity Under Law, “Our motion seeks to upend the covert plan of Secretary Ross to make the Census a partisan weapon of lies and fearmongering by deliberately undercounting the American population.”
“As we inch closer to the 2020 Census, the Trump Administration is pulling out all stops in their attempt to suppress the participation of people of color, specifically black immigrants,” said Opal Tometi, Executive Director of BAJI. “We are a critical part of the American fabric and we will not allow this administration’s lies and harmful tactics to deter us from participation. No matter what, we must stand up and we must be counted.”
“In San José, everyone counts,” said Mayor Sam Liccardo of San Jose. “Adding a citizenship question to the 2020 Census will stoke fears and depress participation in diverse cities like San José, threatening hundreds of millions in funding for health, education, and other critical services upon which our entire community depends.”
“Our motion makes clear that Commerce’s own documents undermine the excuse given for adding the citizenship question to the 2020 Census,” said John Libby, Partner at Manatt Phelps & Phillips. “Secretary Ross aggressively pushed to add this question even in the face of clear evidence from his agency’s own experts that it would suppress the count of immigrants and communities of color, precisely the intended effect. It is hard to imagine a more arbitrary and capricious decision.”
On Friday, August 17, 2018, the United States District Court for the Northern District of California permitted a lawsuit challenging the 11th hour addition of a citizenship question to the 2020 Census to move forward. The Lawyers’ Committee for Civil Rights, Public Counsel with pro-bono support from Manatt, Phelps & Phillips filed the lawsuit on April 17, 2018. The defendants moved to dismiss the lawsuit on June 21, 2018. In addition, the court also rejected a similar motion to dismiss that had been filed in litigation brought by the State of California.
To view the August 17 order, click here.
For background information on the April 17 lawsuit, click here.