The 2020 Census count is over, but legal efforts continue in order to ensure that its results are full, fair, and accurate. The stakes could not be higher: the 2020 Census will dictate the apportionment of congressional seats among the states, the redrawing of election districts around the country, and allocate $1.5 trillion in federal funds for the coming decade. The power and well-being of communities of color — who stand to be undercounted if the Trump administration’s plans come to fruition — are particularly hanging in the balance.
Here’s where census litigation stands in the run up to apportionment, which would conclude by January 25 under current federal law.
Challenges to Trump’s exclusion plan
The Supreme Court recently held that federal courts cannot yet rule on the legality of President Trump’s plan to exclude undocumented people from the Census count used to distribute congressional seats to each state. This has paused litigation on this issue for now.
The Constitution requires that seats in the House be apportioned between states based on “the whole number of persons in each state.” Accordingly, the apportionment base has always included all persons residing in the United States irrespective of their immigration status.
In July 2020, however, Trump announced his intent to depart from this centuries-old understanding, issuing a memorandum declaring that he would exclude undocumented people from the apportionment base. It directed the Commerce Department (which houses the Census Bureau) to give him two sets of numbers: the state population totals that federal law requires the Commerce Department to report for apportionment and data about the citizenship status of every person in the country.
Since announcing the plan, the Trump administration has sent mixed messages as to whether it will be able to gather sufficient data to allow the president to exclude all undocumented people or possibly smaller subsets of the undocumented population, like people in immigration detention facilities.
The plan met swift pushback. State and local governments and numerous immigrant rights and racial justice organizations filed lawsuits contending that the plan violates the Constitution, the Census Act, the Apportionment Act, and other federal laws.
Federal district courts around the country weighed in early and often for the challengers. In New York v. Trump, a three-judge panel unanimously held that the plan plainly violated the statutes governing the census and apportionment, writing that “the merits of the parties’ dispute are not particularly close or complicated.” The court ruled that the plan violated the Apportionment Act’s command — modeled after the Constitution — to count “the whole number of persons in each State.” The court also determined that the president’s order to report two sets of numbers violated the Census Act’s mandate to report a single tabulation of the total population based on the census results.
In City of San Jose v. Trump, a three-judge panel in California unanimously held that the plan violated the Constitution and federal statutes. And another three-judge panel in Maryland ruled unanimously in Useche v. Trump that the plan violated the statutes governing the census.
Only one lower court ruled against the plan’s challengers: a three-judge panel in Washington, DC, held 2–1 in Common Cause v. Trump that it would be more prudent for the court to wait to see how the administration implements its plan before ruling on its legality.
The Supreme Court heard the New York case at the end of November and dismissed it in December, determining that judicial review was premature because it is not yet known to what extent the president will be able to implement his plan, how many people he will be able to exclude, or where among the states those people will be located, thereby making the harm to challengers unclear. The Court subsequently vacated the district courts’ rulings in San Jose and Useche, ordering those cases to be dismissed for lack of jurisdiction.
The Supreme Court’s actions permit Trump to try to implement his plan and further threaten the integrity of a census that the Trump administration has repeatedly endangered.
Because the Court ruled that the plan was not yet ripe for review, challengers can sue again if the president actually tries to implement it — and the plaintiffs have already indicated that they will do just that. Such a lawsuit would seek to ensure that immigrant communities and the broader communities of which they are a part receive the political representation that the law guarantees them.
Meanwhile, a long-running lawsuit in Alabama seeking a court order excluding undocumented people from the count may restart after the apportionment occurs.
Challenge to Trump’s undisclosed plans for apportionment
A Freedom of Information Act (FOIA) lawsuit by the Brennan Center may help resolve the outstanding questions surrounding the administration’s plan for the apportionment.
Although Trump only announced his exclusion policy last summer, census watchdogs, civil rights and racial justice groups, and others long suspected that the Trump administration would attempt to use the apportionment to undermine the political power of communities of color and immigrant communities, whether by using citizenship data or some other means. The Brennan Center sought to provide clarity on the administration’s plans by partnering with the law firm WilmerHale LLP to file multiple FOIA requests in early July. We sued to enforce the requests after the federal government did not expeditiously release the full scope of the documents sought.
In Brennan Center v. U.S. Department of Commerce, the district court ordered the Department of Commerce, Census Bureau, Office of Management and Budget, and several Justice Department components to produce documents on a rapid schedule so that the Brennan Center can review and make use of any responsive information before January 25, 2021, when the apportionment process is scheduled to conclude.
Challenge to the rushed census timeline
Trump’s plan to exclude undocumented people from the apportionment count has traveled hand-in-hand with his administration’s attempts to rush the count and processing of apportionment data before he leaves office.
In April, as the coronavirus pandemic was spreading across the United States, the Census Bureau introduced a plan to protect the health and safety of the public while still ensuring that it could conduct an accurate count. This Covid-19 plan delayed the start of all counting methods that required face-to-face contact and extended the time for calculating the state population totals used for apportionment from December 31, 2020, to April 30, 2021.
But barely two weeks after Trump announced his plan to exclude undocumented people, the Census Bureau suddenly and without explanation announced that it was cutting the time for collecting and processing census data in half. The bureau’s “Replan” went directly against its own statements about the significant risks a condensed census process would create for the accuracy of the final data.
The unexplained rush poses a grave threat to counting people of color in the census and providing them their fair share of political representation and funding for essential services, because many of the steps cut short are designed specifically to ensure a full count of communities of color.
A coalition of civil rights groups; American Indian nations; local governments; and local government officials represented by the Brennan Center, the Lawyers’ Committee for Civil Rights Under Law, and the law firm Latham & Watkins LLP sued the Commerce Department and the Census Bureau in federal court in Northern California.
The lawsuit, National Urban League v. Ross, contends that the Census Bureau violated its constitutional duty to make census-related decisions that “bear a reasonable relationship to the accomplishment of an actual enumeration of the population” by abandoning its Covid-19 plan. The suit also argues that the bureau’s unexplained decision to cut the census short violated statutory requirements for agencies to give clear, evidence-based reasons for their actions. The real reason for the rush, the complaint alleges, was to guarantee that Trump is still in office when the population totals are provided — by shortening the census timelines, the Trump administration was trying to preserve the president’s opportunity to implement his exclusion policy and suppress the political power of communities of color. (A second case, La Union Del Pueblo Entero v. Trump, is also contesting the timelines as part of a challenge to the Trump administration’s attempts to create a file of the citizen voting age population for redistricting purposes.)
The court ordered the data-collection phase of the census to continue through October 15 — more than two weeks longer than the Replan’s official end date of September 30. Only a late emergency ruling from the Supreme Court prevented the count from running until October 31, the full time the bureau had originally asked for in its Covid-19 Plan.
In the wake of the Supreme Court’s ruling, the case continues, as does the census, which is now in the crucial data-processing phase where the bureau converts hundreds of millions of census responses into usable, reliable data.
At this stage, the plaintiffs are seeking a court ruling reinstating the original Covid-19 plan, among other relief. Ahead of the trial set for March 2021, the court has ordered the Trump administration to produce documents and materials relating to the decision to replace the Covid-19 plan with the Replan and explaining how the bureau has actually conducted both data collection and data processing to meet the Replan’s tighter timelines.
These legal disputes are ongoing. The Brennan Center will continue to fight for a fair and accurate census in and outside of the courts.
Updates on census lawsuits can be found on our regularly updated case pages.
