Judicial Watch and Allied Educational Foundation File Brief with Supreme Court Urging it to Allow Inclusion of Citizenship Question in the 2020 Census

‘The mountain of new data generated by the decennial census question will assist private litigants and the Department of Justice in their efforts to enforce the NVRA [National Voter Registration Act] … and will overcome limitations identified by a federal court concerning the current data on citizenship’

(Washington, DC) – Judicial Watch announced today that it joined with the Allied Educational Foundation (AEF) on February 11, 2019 in filing an amici curiae brief in the United States Supreme Court, urging it to overturn the ruling of the United States District Court for the Southern District of New York blocking the Secretary of Commerce from adding a question about citizenship to the 2020 census.  The brief argues that including a citizenship question would help Judicial Watch and the government make sure only eligible citizens are on the voting rolls:

Adding a citizenship question to the decennial census would generate a massive amount of new data concerning the numbers of citizens and noncitizens in U.S. states and counties. To quibble about potential limitations in the data that would be collected is to miss the point. It cannot be the case that we are somehow better off with less

information. The mountain of new data generated by the decennial census question will assist private litigants and the Department of Justice in their efforts to enforce the National Voter Registration Act. Indeed, this data will overcome limitations identified by a federal court concerning the current data on citizenship

The Judicial Watch/AEF brief cites a decision by the U.S. District Court for the Southern District of Florida in Bellitto v. Snipes (No. 16-cv-61474), which criticized the current source for citizenship information, a limited survey called the American Community Survey.  Judicial Watch argued that getting more data about the citizen voting-age population (CVAP) is critical to enforcement of the National Voter Registration Act (NVRA) and the Voting Rights Act.

The brief also joins the Commerce Department in arguing that the lower court overstepped its bounds in blocking the Secretary of Commerce’s decision about what to include:

[A] determination about what to include on a census questionnaire is committed to agency discretion and is unreviewable under the Administrative Procedures Act (APA) [and] a court determining whether an agency action is arbitrary and capricious under the APA may not substitute its judgment for that of the agency.

This Judicial Watch/AEF filing comes in the case U.S. Department of Commerce, et al. v. State of New York, et al. (18-966), which is on emergency appeal to the Supreme Court.  The New York district court decision under appeal was a consolidation of two cases (State of New York, et al. v. U.S. Department of Commerce, et al. (18-cv-2921) and New York Immigration Coalition, et al. v. U.S. Department of Commerce, et al. (18-cv-5025)) challenging the decision of the Secretary of Commerce Wilbur Ross to add a citizenship question to the 2020 census questionnaire.  The district court held that Ross’s decision failed to “comply with the policy decisions that Congress — to which the Constitution gives authority over the census — has made and enshrined in statute, including but not limited to the preference for obtaining data through administrative records rather than through direct inquiries.”

The Judicial Watch/AEF brief responds:

[T]he Department of Justice stated that citizenship data was “critical” to its efforts to enforce Section 2 of the Voting Rights Act and that the decennial census was “the most appropriate vehicle” for asking a question about citizenship.  The Secretary of Commerce agreed.  In so acting, the Secretary rejected the argument that including a citizenship question would reduce the response rate for noncitizens.  The Secretary found that the available data did not support this suggestion and added that the value of “more complete and accurate” citizenship data outweighed the disadvantages that might arise from a lower response rate.

Judicial Watch is the national leader in enforcing the provisions of the NVRA.  In early January, Judicial Watch announced that it signed a settlement agreement with the State of California and County of Los Angeles under which they will begin the process of removing from their voter registration rolls as many as 1.5 million inactive registered names that may be invalid. This was only the third statewide settlement achieved by private plaintiffs under the NVRA – and Judicial Watch was the plaintiff in each of those cases. The other statewide settlements were with Ohio (in 2014) and with Kentucky (2018), which agreed to a court-ordered consent decree.

“Leftists hate the idea of the American people knowing more about the number of foreign nationals present in the United States, which is why they oppose a census question about citizenship,” said Judicial Watch President Tom Fitton.  “The Supreme Court should reject the lower court judicial power grab that would unlawfully restrict the Trump administration from getting more information about the residents of the United States.”

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