A federal judge for the U.S. District Court for the Northern District of California unloaded on the attempted inclusion of a citizenship question on the 2020 Census, calling Secretary of Commerce Wilbur Ross‘ decision “arbitrary and capricious.”
U.S. District Judge Richard Seeborg awarded a nationwide injunction to the plaintiffs–the State of California and the City of San Jose–in a massive 126-page order, which concluded that the inclusion of the question violated the Administrative Procedure Act (APA) and the Enumeration Clause of the Constitution.
At the very end of the tome, Seeborg added an “in short” that got to the heart of the matter.
“In short, the inclusion of the citizenship question on the 2020 Census threatens the very foundation of our democratic system—and does so based on a self-defeating rationale,” he said. “In light of these findings, Defendants do not get another bite at the apple. Defendants are hereby enjoined from including the citizenship question on the 2020 Census, regardless of any technical compliance with the APA.”
The road leading up to that “in short” was a long one for Wilbur Ross. Seeborg said that he struggled to find agencies in the U.S. government to agree with the citizenship question’s inclusion:
Nearly a year before issuing that decision, on May 2, 2017, Secretary Ross sent an email to Deputy Chief of Staff Earl Comstock stating in part “I am mystified why nothing [has] been done in response to my months old request that we include the citizenship question. Why not?” What ensued was a cynical search to find some reason, any reason, or an agency request to justify that preordained result. As to the APA, one need look no further than the Administrative Record to conclude that the decision to include the citizenship question was arbitrary and capricious, represented an abuse of discretion, and was otherwise not in accordance with law.
In response to Secretary Ross’s demand, Comstock began to search for an agency that would be willing to request the inclusion of the citizenship question in the 2020 Census. When initially approached by Comstock about the citizenship question, the Department of Justice (“DOJ”) opted not to request its inclusion in the census. Comstock then reached out to the Department of Homeland Security, which similarly declined to request the addition of the question. Only after Secretary Ross personally interceded with then Attorney General Jeff Sessions did the DOJ switch its position and request the inclusion of a citizenship question, ostensibly to assist in the enforcement of Section 2 of the Voting Rights Act (“VRA”).
Seeborg said that the defendant did not refute evidence “produced by the professional staff of the Census Bureau” that said the question would “likely result in a significant differential decline in self-response rates within noncitizen and Latino communities and that the requested data could be obtained by other means.” The judge said that Ross’ reliance on the Voting Rights Act (VRA) to justify the question was “mere pretext and the definition of an arbitrary and capricious governmental act.”
Eventually, Seeborg referenced the trial results related to the assessment of the impact of the citizenship question. New York v. United States Dep’t of Commerce, you may recall, is going to the U.S. Supreme Court. SCOTUS will review the case in advance of a judgment by the appellate court, and oral arguments are scheduled for April. U.S. District Judge Jesse M. Furman memorably said that Ross had a serious credibility problem — “Applying well-established principles to the unusual facts of these cases, the Court concludes that the question is not a close one: Secretary Ross must sit for a deposition because, among other things, his intent and credibility are directly at issue in these cases.”
“The evidence admitted in the trial of these actions demonstrates that a significant differential undercount, particularly impacting noncitizen and Latino communities, will result from the inclusion of a citizenship question on the 2020 Census, compounded by macro-environmental factors arising out of the national immigration debate,” Seeborg said.
In closing, Seeborg said that, although there has been some handwringing over nationwide injunctions, the plaintiffs checked off every box to get one.
A plaintiff seeking a permanent injunction must satisfy four requirements: “(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” The decision whether to grant injunctive relief ultimately falls within a court’s equitable discretion.
Here, Seeborg said, each of the four elements is satisfied, so a nationwide injunction is appropriate here.
“As previously noted, this Court is mindful of concerns regarding the authority and propriety of an individual district judge in one judicial district issuing an injunction of nationwide application,” he said. “In light of the unitary nature of the question at issue, by definition no injunctive relief could be limited to only one geographic area or to only certain litigants. Put simply, the citizenship question is either on or off the 2020 Census, thereby practically requiring an injunction nationwide in scope.”
[Image via Win McNamee/Getty Images]
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