The NCSL Blog

26

By Lisa Soronen

Commerce Secretary Wilbur Ross issued a memorandum earlier this year stating a citizenship question would be added to the 2020 census questionnaire.

ICommerce Secretary Wilbur Rossn In Re Department of Commerce, the Supreme Court will not be deciding whether this question may be legally added. Instead, the court will decide—among other things—whether Ross may be deposed about his motives for adding this question.

A number of state and local governments and nonprofits sued Ross, claiming that adding this question is arbitrary and capricious in violation of the Administrative Procedure Act.

In the 2018 memorandum, Ross stated that he “began a thorough assessment” of whether to add a citizenship question “[f]ollowing receipt” of a December 2017 letter from the Department of Justice (DOJ) requesting citizenship data to enforce the Voting Rights Act’s prohibition against diluting the voting power of minority groups.

But after the litigation began Ross acknowledged in another memorandum he had begun considering adding a citizenship question long before the DOJ’s letter. And, according to the challengers, the “DOJ had not submitted the December 2017 letter on its own initiative, as Ross' March 2018 memorandum suggested. Instead, the secretary and his staff had approached DOJ to ask that it ‘request inclusion of a citizenship question.’”

A federal district court ruled the challengers could depose Ross and Acting Assistant Attorney General John Gore, the DOJ’s point person on the citizenship question, and engage in additional discovery based on the “irregularity of the record” and “a strong showing of bad faith or improper behavior.” In late October the Supreme Court stayed the deposition of Ross but allowed the deposition of Gore and the additional discovery to go forward.

Commerce argues the district court should not have allowed either the depositions of Ross or Gore or the additional discovery. According to the department, “The focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court. And the orders defy equally well settled law establishing that plaintiffs challenging agency action may not probe the subjective mental processes of the agency decisionmaker, especially by compelling his testimony. Although this Court has recognized a narrow exception where the plaintiffs make ‘a strong showing of bad faith or improper behavior,’ the district court clearly erred in applying that exception here.”

Among other things, the challengers respond that the district court “reasonably found that extraordinary circumstances unique to this case provided a sufficiently strong showing of bad faith or improper conduct.” Specifically, Ross changed his story about why he first started thinking about adding the citizenship question to the census questionnaire. Also, the “Secretary’s belated revelation of a nearly yearlong decision-making process, referred to nowhere in his initial public announcement, triggered significant concerns that [the Secretary] had not provided [in the litigation record] all information that the Secretary ‘directly or indirectly considered.’”

While the Supreme Court is not deciding in this case whether to allow or disallow the citizenship question, whether it allows this testimony and additional discovery may influence how a court rules on the ultimate question.

States and local governments receive significant federal funding based on population as determined by the census. As Commerce explains: “All of the claims [against Commerce] rest on the premise that reinstating a citizenship question will reduce the self-response rate to the census because, notwithstanding the legal duty to answer the census some households containing at least one noncitizen may be deterred from doing so (and those households will disproportionately contain racial minorities).”

Related: NCSL's letter urging full funding for the census and explaining how the census data impacts state programs and funding.

Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog on judicial issues.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.