Judge to Rule Within Weeks on Census Citizenship Question

A New York judge who plans to rule in the next few weeks on whether to ban a citizenship question from appearing on the 2020 census said Tuesday he was surprised the U.S. government failed to concede the question will cause many people not to participate.

During oral arguments at the conclusion of a trial, U.S. District Judge Jesse M. Furman confronted a lawyer for the Justice Department over testimony this month by two experts, including one testifying for the federal government, that at least 5.8 percent of households where a non-citizen lives might opt out of participating in the census.

Furman said he was "a little surprised" the U.S. government insisted there was no proof the census would be affected.

Justice Department lawyer Brett Shumate confirmed the U.S. government was not conceding as a legal matter that it was fair to trace anything to the citizenship question.

"It's still speculation at this point," Shumate said. "The benefits of adding the question to the census outweigh the cost."

Shumate also said that the country's political climate and other factors would likely affect how people answer census questions, making it impossible to know how the citizenship question might enter the equation.

The trial began earlier this month after over a dozen cities, states and organizations sued to stop the Commerce Department from adding the question. Similar lawsuits are before judges elsewhere in the country.

The lawsuits contend Commerce Secretary Wilbur Ross acted arbitrarily and capriciously to add the question and it must be stricken.

Otherwise, they say, immigrants will be discouraged from participating, diluting political representation and federal dollars for states that tend to vote Democratic.

Shumate argued Ross had wide discretion to add the question for the first time since 1950, saying Ross acted appropriately and consulted properly with Census Bureau staff members and others before announcing his decision earlier this year.

Matthew Colangelo, a lawyer with the New York State attorney general's office, said Ross violated rules and ignored the advice of government census experts on how to make such a change.

"The secretary knew what he wanted to do and looked for a way to do it," Colangelo said.

Colangelo told Furman his ruling must be based on everything from the trial. The Justice Department insists it must stem from the administrative record established before lawyers searched for additional evidence and experts.

Colangelo said the administrative record was "at best misleading" and possibly falsified.

"The secretary of Commerce is not above the law," he said.

Furman said he'll probably rule within weeks unless the U.S. Supreme Court decides to entertain the Justice Department's latest request to stop him.