The Trump administration's decision to add a question about citizenship in the 2020 Census was met with fierce pushback from its critics Tuesday, launching a legal and political battle with enormous stakes in a fight that pits the administration against many Democratic states.
The decision announced late Monday night by Commerce Secretary Wilbur Ross has already triggered legal challenges from California and New York, with the latter promising a "multi-state" lawsuit challenging the administration.
Democratic lawmakers, who stand to lose political power if undocumented immigrants decline to take part in the decennial survey, attacked the decision Tuesday, but there is little they can do to immediately counter the move. The massive spending bill lawmakers passed last week would have been the best chance the minority party had this year to try to block the Census Bureau from moving forward with its plan, with congressional Republicans so far showing little appetite to protest the decision.
The confrontation now becomes another key factor hanging in the balance during the upcoming midterm elections, with Democrats gaining considerable leverage to scrap the Census decision should they win control of either chamber.
Critics of Commerce's move said it is part of a broader pattern of systematic attacks by the Trump administration against Democratic parts of the country on issues ranging from health care to immigration and one with major ramifications on decisions such as how congressional districts are drawn and how federal funding is spent nationwide.
"We're talking about a decade of consequences," Sen. Robert Menendez, D-N.J., who has introduced legislation trying to block the Census Bureau from asking about citizenship, said in an interview Tuesday. "There's few things you can put your finger on directly that has a decade of consequences - in this case, a pejorative consequence."
Opponents of asking the citizenship question argue that it will reduce the response rate for the census and undercount the population in areas with high numbers of undocumented immigrants, who could fear participating. As a result, opponents say, states with significant immigrant populations, which are mostly controlled by Democrats, could stand to lose seats in Congress, along with electoral college votes in presidential elections and federal funding based on census counts. Democrats could also lose seats in those state legislatures.
Administration officials defended the change to the decennial census, which hasn't asked a question about citizenship of the entire population since 1950, although citizenship status has been asked on surveys among a sample of U.S. households, such as the American Community Survey (ACS). Getting an accurate count of the voting-eligible population through the Census, the administration contended, would help identify potential voting-rights violations by providing more accurate information than now available about the proportion of a congressional district's population that is eligible to vote by holding citizenship.
"I would argue that this has been practice of the United States government," White House press secretary Sarah Huckabee Sanders said Tuesday when pressed on the decision. "The purpose is to determine individuals that are here. It also helps to comply with the Voting Rights Act. Without that information, it's hard to make those determinations."
The administration's congressional allies also defended the proposal.
"Counting the number of U.S. citizens in the country should be a high priority of the census," Sen. Tom Cotton, R-Ark., said in a statement Tuesday. "The only way to get an accurate count is to add a question about citizenship to the census itself."
Critics of the decision, including California Attorney General Xavier Becerra, were bullish Tuesday on the prospects of winning their legal challenge, noting that the Constitution requires a census, or "actual enumeration," every 10 years to apportion representation in Congress, based on the "number of free persons" in each state.
"It doesn't say all white people, it doesn't say all men, it doesn't say all property owners, it doesn't say all citizens, it doesn't say all voters," said Arturo Vargas, the executive director of the National Association of Latino Elected and Appointed Officials Educational Fund. "It says all persons."
Illinois is joining New York’s lawsuit against the U.S. Census question regarding citizenship, a spokeswoman for the Illinois attorney general’s office said Tuesday night.
“The Census is a fundamental part of our democracy,” Attorney General Lisa Madigan said in a statement. “We must encourage every person in our country to participate, instead of putting up barriers to prevent people from being counted. I will take legal action to protect immigrant communities in Illinois and ensure they are represented fairly and accurately.”
The administration is almost certain to face more legal challenges. Former U.S. Attorney General Eric Holder Jr., who serves as chairman of the National Democratic Redistricting Committee, threatened a suit to halt the decision. And Dale Ho, the director of the American Civil Liberties Union's Voting Rights Project, said his organization is evaluating all options.
Justice Department spokeswoman Kerri Kupec said Tuesday in response to the California lawsuit that DOJ "looks forward to defending the reinstatement of the citizenship question, which will allow the Department to protect the right to vote and ensure free and fair elections for all Americans."
Justice requested that the question be added to the Census and Ross was not enthusiastic about the idea, according to two people who had conversations with him about it and spoke on the condition of anonymity since the discussion were private. The Commerce secretary, however, said he kept an open mind, carefully studying the issue before coming to his decision.
"When the request came in from the Department of Justice I directed the analysis to begin and took a hard look at the question. After careful consideration, I came to my conclusion," Ross said in a statement. "During the whole time we were studying the issue, no one in the administration put pressure on me."
On Capitol Hill, Democrats were furious at the administration's decision but acknowledged they had little recourse, for now, to kill the Census move legislatively. There are a handful of Democratic bills circulating in Congress, but they stand almost no chance in the GOP-controlled chambers.
Rep. José Serrano of New York, the top Democrat on the House panel that oversees Commerce funding, said he will introduce language that will prevent funding from being spent to ask the citizenship question, or print the Census with the question included. The House Appropriations Committee will began drafting spending bills for the next fiscal year in the coming weeks.
Technically, the next leverage point for Democrats is Sept. 30, when current government funding expires, but Congress in recent years have instead passed stopgap spending measures, punting big spending and related policy decisions until past the election.
"This certainly would be a top priority for many of us" if Democrats win control of the House, said Rep. Judy Chu, D-Calif., the chairwoman of the congressional Asian Pacific American Caucus. "Remember that our Democratic caucus is majority-minority now . . . we all have a stake in making sure that there is an accurate count for the Census."
Democrats are pressuring their GOP counterparts to conduct more oversight of Commerce's decision now. Rep. Elijah Cummings of Maryland, the top Democrat on the House Oversight and Government Reform Committee, called for hearings into the issue. The panel's chairman, Rep. Trey Gowdy, R-S.C., has set up a briefing with Commerce and Census officials on the issue in April, his spokeswoman, Amanda Gonzalez, said.
Even successful litigation or a move by Congress might not be able to address issues that arise from the administration's decision, experts and critics warned, noting that the controversy over adding a citizenship question at a time when many immigrants are already leery of being targeted could have a lasting impact.
"We also know that there are people in this country - citizens and noncitizens - who fear questions from the federal government," Serrano said Tuesday. "Why would you take this time to ask questions that could bring fear to people, or keep them away from reporting that they're here, that they want to be counted?"
Questions about citizenship appeared on the decennial count in varying forms in the 19th century and into the 20th. The disappearance of the citizenship question after 1950 caused no outcry, said Margo Anderson, a professor of history and urban studies at the University of Wisconsin at Milwaukee and author of "The American Census: A Social History."
"By 1950, there wasn't a great foreign-born population anymore, so the issue wasn't that important," she said. "I cannot find anyone kicking up a fuss, saying, 'Oh my gosh, we're taking this off?' . . . That's an indication that this was not a very important issue. There were a lot of issues that were on the agenda in the 1960s, but this wasn't one of them."
In an attempt to minimize any impact on response rates, Ross directed the Census Bureau to place the citizenship question last on the census form. But critics of the plan say that making substantive changes to the decennial survey this late in the cycle is unprecedented in modern history.
The sample survey being tested in Rhode Island has no citizenship question. The consequences of not testing a question would be grave, Anderson said.
"You're flying blind," she said. "You don't know whether there are unforeseen issues."
Anderson said even if Congress and the administration were to provide additional funding at this late date to test the effect of a citizenship question on response rate, "They might not like the results they get."
The Washington Post's Samantha Schmidt, Heather Long, Philip Rucker, Scott Clement and Matt Zapotosky contributed to this report.