A federal court on Thursday blocked a memorandum signed by President Donald Trump seeking to exclude undocumented immigrants from being counted in the census for apportionment, saying such action would violate the statute governing congressional apportionment.
A special three-judge panel out of New York wrote that the president’s argument that undocumented immigrants should not be counted runs afoul of a statute saying apportionment must be based on everyone who is a resident of the United States.
The judges found that all residents must be counted for apportionment purposes regardless of their legal status.
The ruling declared the president’s July 21 memorandum to be “an unlawful exercise of the authority granted to the President,” and it blocked the Commerce Department and the Census Bureau from including information about the number of undocumented immigrants in their reports to the president after the count is completed. The ruling is likely to be appealed to the Supreme Court.
Dale Ho, director of the ACLU’s Voting Rights Project, and one of the attorneys who argued the case, called the ruling “a huge victory for voting rights and for immigrants’ rights. President Trump has tried and failed yet again to weaponize the census against immigrant communities. The law is clear – every person counts in the census.”
The ruling came hours after a federal judge ordered the Trump administration to produce internal documents connected to its sudden decision to end the 2020 Census count a month earlier than the Census Bureau had planned.
U.S. District Judge Lucy Koh gave the government three days to file all documents and communications between mid-April, when the bureau said it would extend the count to Oct. 31 due to the pandemic, and Aug. 3, when it abruptly said the count would end Sept. 30.
By law, the state population totals that will be used to reapportion seats in the House of Representatives for the next decade must be delivered to the president by Dec. 31 of the census year.
The shortened timeline is at odds with statements from senior bureau officials who had said the bureau could no longer provide a complete and accurate count by the end of the year, and it sparked legal challenges. Koh last week temporarily blocked the bureau from winding down the count after the government said it had already started doing so, until a hearing set for Sept. 17.
Members of Congress have also expressed concern about the change in schedule, saying a rushed count will lead to an inaccurate census, particularly in areas already behind in being counted.
At a hearing of the House Oversight Committee on Thursday, Chairwoman Carolyn Maloney, D-N.Y., questioned why the administration initially asked for the Oct. 31 extension and then reversed itself, even as an internal census document showed bureau officials warning that the shortened time would significantly damage the count.
“We do not have the full story,” she said, adding that statements from White House Chief of Staff Mark Meadows implied that the administration had reversed its request to try “to control apportionment this year while [Trump] is still in office.” Census data is used to reapportion House seats every 10 years, to guide redistricting and to distribute over $1.5 trillion in federal funding.
Maloney said an undercount would harm Republican states as well as Democratic ones. Noting that such states as Alabama, Arizona, Florida, Georgia, Kentucky, Montana, North Carolina, South Carolina, Texas and Utah could be harmed by an inaccurate count, she added, “That’s why a number of Republican senators have come out in support of extending the deadlines.”
A House coronavirus relief package approved the administration’s April request for a later end to the count that would have pushed the reporting deadline for apportionment to April 30. But a draft of a Senate coronavirus package has not included mention of the change. Congressional approval is required to change the reporting date.
Census experts have noted that the shortened count is only one part of the problem: The administration’s new timeline shortens the period for analyzing and correcting problems with the data from six months to three, and cuts out crucial steps from that stage.
Thursday’s ruling by the U.S. District Court for the Southern District of New York was in response to two consolidated lawsuits over the memo – one filed by the ACLU, the New York Civil Liberties Union, the ACLU of Texas and the law firm Arnold & Porter; and one filed by New York Attorney General Letitia James along with 20 attorneys general and 14 cities and counties across the country.
Other legal challenges to the memo include one by the government watchdog organization Common Cause and several cities, groups and individuals that was filed in the U.S. District Court for the District of Columbia.
The judges in New York wrote that Trump’s memo “has created, and is likely to create, widespread confusion among illegal aliens and others as to whether they should participate in the census,” adding that the “chilling effect on census participation will likely also degrade the census data, harming state and local governments that rely on the data to carry out their public functions.”
The White House referred inquiries to the Justice Department; officials there did not immediately respond. The Census Bureau said it does not comment on ongoing litigation.