Trump Citizenship Question Goes on Trial on Eve of Crucial Vote

(Bloomberg) -- A trial over the Trump administration’s use of a citizenship question on the next U.S. census for the first time in 70 years gets under way Monday in Manhattan, with dozens of states and cities arguing the move is a bald power grab.

The trial, starting the day before a momentous midterm election, could help rewrite the nation’s political map for a decade. Census results are used to apportion seats in Congress and divvy up the Electoral College votes that pick the president. The data are also used to distribute hundreds of millions of dollars a year in federal aid to states and localities.

The administration has said it will show that it decided to add the question -- “Is this person a citizen of the United States?” -- to the 2020 census to improve enforcement of the Voting Rights Act. It says any changes to the once-a-decade survey are well within the constitutional authority of the Census Bureau, part of the Commerce Department. Commerce Secretary Wilbur Ross testified before Congress in March that he was acting in response to a Justice Department request.

Plaintiffs, led by New York Attorney General Barbara Underwood, intend to prove that the addition of the question goes back to the outset of Donald Trump’s presidency, when Kansas Secretary of State Kris Kobach and former White House chief strategist Stephen Bannon, among others, weighed in with an anti-immigrant agenda.

The real goal, the plaintiffs say, is to dilute the political power of immigrants and noncitizens by discouraging them from participating in the census. Given the president’s language and actions on immigrants, the idea is they may fear the data could be used by federal immigration agents to target them or someone in their household, even if they are in the U.S. legally.

“People had their minds made up in February 2017,” Justin Levitt, a former deputy assistant attorney general in the Justice Department during the Obama administration, said in an interview, referring to the Trump team. Levitt, now a constitutional law professor at Loyola Law School in Los Angeles, called it “a policy plowing ahead in search of an ostensible rationale” and said “that is something that should concern all of us.”

Documents uncovered in the case show Ross was in talks with Bannon and Kobach about adding the question almost immediately after Trump took office, despite having said he wasn’t, and that the voting-rights explanation was manufactured later to lend the move legitimacy, the plaintiffs say. The U.S. argued in court filings before the trial that the claims of bias are based on “innuendo” alone.

U.S. District Judge Jesse Furman, named to the bench by Barack Obama, will oversee the two-week trial without a jury. The outcome could give either Democrats or Republicans an edge as soon as 2021 and through at least 2031, just after the next decennial census. Given the stakes, an appeal to the U.S. Supreme Court is all but inevitable.

On Friday, the high court cleared the way for the trial to start, rebuffing the government by declining to expand an earlier order that shielded Ross from being questioned under oath in advance.

To Hans von Spakovsky, a lawyer at the conservative Heritage Foundation, the addition of the citizenship question can only help resolve the nation’s anguished debate over immigration.

“The more census data you have on that, the better off you’re gonna be,” he said.

The question hasn’t been on the decennial form since 1950. The intention -- and danger -- of adding it now without testing it is transparent, said Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, which isn’t involved in the suit.

“What is at risk is an accurate census,” Saenz said. “This is the first time we’ve seen a Census Bureau politicize the census in this way, and it’s a very dangerous precedent.”

The case is State of New York v. U.S. Department of Commerce, 18-cv-2921, U.S. District Court, Southern District of New York (Manhattan).

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