Litigation Update: Census 2020 Citizenship Question

On January 15, 2019, Judge Jesse Furman, a U.S. district judge in New York, ruled that the Trump administration could not add a question to the 2020 census asking whether the person completing the census questionnaire is a U.S. citizen. The court stated that the Census Bureau could not ask the question in the manner currently proposed because it violates federal law. The court also determined that the reasons the administration provided for why they chose to add this question – supposedly to better enforce the Voting Rights Act – were not its real reasons.

On January 22,  the Trump Administration indicated that it intends to ask the Supreme Court to review this decision in an expedited manner, skipping over the Second Circuit. The questions for the 2020 census must be finalized by June so that paper forms can be printed in time to implement the census as required by the Constitution. The administration is asking the Supreme Court to hear the case by April or May.

As we have written in the past, an accurate census count is of major significance to nonprofits. In addition to the critical role the census plays in determining the apportionment of congressional representation, the census shapes how hundreds of billions of federal dollars are allocated. For example, federal medical assistance, “food stamps,” school lunches, and housing assistance that help members of our local communities around the country are based on the census count. This impacts many nonprofits’ bottom line as federal dollars are an important source of funding for many service nonprofits, and an undercount of people in your area will mean fewer federal resources to meet local needs.

The outcome of this litigation could have a major impact on census response rates. Inclusion of the citizenship question could depress response rates in areas with larger immigrant populations, since immigrants and those in their families understandably may feel uncomfortable completing a questionnaire in 2020 stating that they are not U.S. citizens, given President Trump’s anti-immigrant rhetoric and his administration’s family-separating, zero-tolerance immigration enforcement. This is yet another example of the importance of the federal courts in every area of policy.

Also, this is a good opportunity to remind nonprofits that litigation is an important tool to impact policy that is available to 501(c)(3) public charities and private foundations, and is not subject to the limits that apply to lobbying. Your nonprofit may not have the litigation capacity of a group like the ACLU or Legal Aid, but you may still be able to make a major impact on policies and systems that are important to your mission by being a plaintiff in a lawsuit or filing an amicus brief.

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