Department of Commerce v. New York

The United States Constitution requires a census every 10 years to count the country’s population. Under the Fourteenth Amendment, “the whole number of persons in each state” must be counted for apportionment purposes. In 2018, the Department of Commerce decided to add a question to the 2020 Census asking all respondents about their citizenship status, marking the first time such a question was asked. 

On April 3, 2018, a coalition of states and cities sued the Department of Commerce, challenging its decision to add a citizenship question to the 2020 Census. The coalition alleged that the Department of Commerce violated the Administrative Procedure Act (APA) and the Enumeration Clause. The “arbitrary and capricious” clause of the APA directs reviewing courts to strike down justifications offered by an agency that are, “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 

In a separate case filed on June 6, 2018, New York Immigration Coal. v. United States Dept of Commerce, a coalition of organizations claimed that the Department of Commerce’s decision to add a citizenship question violated the APA and Enumeration Clause and the Fifth Amendment, because the law targeted people of color. The United States District Court for the Southern District of New York consolidated the two cases. 

In June 2018, the Department of Commerce moved to dismiss the claims, which the district court granted in part on July 26, 2018. The court dismissed the Enumeration Clause claim but retained the Fifth Amendment and APA claims. 

On January 15, 2019, the district court struck down the addition of a citizenship question to the 2020 Census. While the court concluded that the Secretary of Commerce has “broad discretion” over the census, it ultimately determined that the Department of Commerce had violated the APA. The court held that the Secretary’s justification for his decision to add the citizenship question was “arbitrary and capricious,” that the Secretary had failed to report his intentions to Congress, and that his justification for adding the question, enforcement of the VRA, was pretextual. However, the district court did not accept the Fifth Amendment argument, ruling that there was insufficient evidence to show a discriminatory purpose that motivated the Secretary’s choice to add the citizenship question. 

On January 25, 2019, the defendants appealed to the United States Supreme Court, which accepted the case. On April 1, 2019, the League of Women Voters of the United States (LWVUS) joined 171 other civil rights organizations in filing an amicus brief supporting the plaintiffs. The brief described how Voting Rights Act (VRA) enforcement did not require citizenship data from the census, that the citizenship question would undermine VRA enforcement, and that the question would negatively affect people of color. The Department of Commerce had previously claimed that its justification for adding the citizenship question was to assist the Department of Justice in enforcing the VRA by collecting data on the number of US citizens. However, the Secretary of Commerce had planned to add a citizenship question since he took office and only began considering the VRA at the end of his plans. 

The Court issued its opinion on June 27, 2019, in which they partially upheld the lower court’s decision, agreeing that the reasoning given by the Secretary was pretextual and violated the APA. The Court found that the Secretary’s reasoning, that the citizenship question was added to aid the Department of Justice in VRA enforcement, “could not be adequately explained” given the evidence. The Court found that the Secretary began plans to add the citizenship question during his first few days in office, with no proof that VRA enforcement was a part of his early planning.

Further, the Department of Justice seemed uninterested in getting citizenship data for VRA enforcement; rather, their request for the addition of a citizenship question appeared to be about “helping the Commerce Department.” In fact, the Secretary had attempted to elicit requests for citizenship data from multiple agencies before convincing the Department of Justice to request the addition of the question. As such, the Court found the Secretary’s justification to be pretextual and upheld the district court’s reasoning.

After the Court’s ruling, the Department of Commerce ceased their efforts to add a citizenship question to the 2020 Census.

LWVUS was represented in this matter by the Leadership Conference on Civil and Human Rights, the Brennan Center for Justice at N.Y.U. School of Law, and WilmerHale.