Dale Ho, director of the ACLU Voting Rights Project, breaks down what’s wrong with adding a citizenship question to the 2020 census… all in the time it takes for Ike Barinholtz to ride an elevator. On April 23, the Supreme Court will hear arguments in the case that will decide whether the administration can add a citizenship question to the census.
Four Japanese Americans incarcerated during World War II joined in filing a Supreme Court amicus brief supporting the challengers in the ongoing 2020 census citizenship question litigation, Dep’t of Commerce v. New York.
Amici include former Secretary of Commerce Norman Y. Mineta, Sharon Sakamoto, Eileen Yoshiko Sakamoto Okada, and Joy Sakamoto Barker, whose incarceration during World War II was facilitated by the Census Bureau’s sharing of confidential census data. They are joined by the Fred T. Korematsu Center for Law and Equality at Seattle University School of Law, the Council on American-Islamic Relations (CAIR), and their New York chapter CAIR-New York. The law firm of Akin Gump is serving as pro bono counsel for the brief.
In a lower court decision, Judge Furman of the Southern District of New York has already ruled that the citizenship question was added through a process that failed to follow proper procedures, and made several findings of fact suggesting that the government’s justifications for the question (to aid in enforcing the Voting Rights Act) may not be genuine.
In their brief, amici argue that the Supreme Court should affirm Judge Furman’s judgment and reject the government’s pretextual reasons for adding a citizenship question to the decennial census. Amici emphasize that, because public participation in the census is voluntary, the census process works only if the public trusts that the government will not misuse the information.
Though the Census Act prohibits the government from using census information for anything other than statistical purposes, amici remind the Court that plaintiffs have credible fear that the results of a citizenship question could be misused, citing one of the most heinous examples of such abuse: the Census Bureau’s central role in targeting Japanese Americans for incarceration during World War II. Amici argue that the Supreme Court must impose searching judicial scrutiny to root out any pretext for an unconstitutional census policy.
As Professor Robert S. Chang, executive director of the Korematsu Center, explains, “The shameful legacy of Japanese American incarceration during World War II shows what can happen when the courts allow themselves to be fooled by the government’s pretexts for unconstitutional policies. We urge the Court to conduct a searching review in this case to determine whether the government’s real reasons for adding a citizenship question to the census— in a process the trial judge found to be deeply flawed—support its decision or are simply a mask for a question that could deter the full participation of immigrants and communities of color.”
Ahmed Mohamed, litigation director of CAIR New York, explains, “The Court must protect the integrity of the Census. This Administration must not be given an opportunity to weaponize the census to suppress the voice of immigrants and minorities. We urge the Court to fulfill its duty and block unlawful discrimination.”
Lead pro bono counsel Pratik A. Shah, co-head of the Supreme Court and appellate practice at Akin Gump Strauss Hauer & Feld LLP, states, “By eroding public trust in the process, the Secretary’s addition of a suspect citizenship question only undermines the government’s ability to fulfill its constitutional census duty.”
Pro bono counsel on the brief are: Robert S. Chang and Lorraine K. Bannai of the Fred T. Korematsu Center for Law and Equality at Seattle University School of Law; Ronald A. Peterson of the Law Clinic at Seattle University School of Law; as well as attorneys from Akin Gump Strauss Hauer & Feld LLP, including Pratik A. Shah, as Counsel of Record, Robert H. Pees, Alice Hsu; Z.W. Julius Chen; and Geoffrey J. Derrick.
The Supreme Court will hear oral arguments in the case on April 23, 2019.
The amicus brief filed in the United States Supreme Court is available here.