NEW YORK _ "Is this person a citizen of the United States?"
The question, due to appear on the 2020 census for the first time in 70 years, has spurred a trial starting Monday in which President Donald Trump's administration is accused of trying to dilute the political power of immigrants and noncitizens by scaring them away from the once-a-decade survey.
The trial could help rewrite the nation's political map for a decade or more, since census results are used to apportion U.S. congressional seats and divvy up the Electoral College votes that determine the winners of presidential elections. The data are also used to distribute hundreds of millions of dollars a year in federal aid to states and localities.
The plaintiffs include dozens of states and cities that say the addition of the citizenship question is steeped in White House bias and hasn't undergone the usual rigorous testing. The government says it's an earnest effort to help minorities by improving enforcement of the landmark Voting Rights Act of 1965.
"The purported reason for asking this question is nonsense," Justin Levitt, a former deputy assistant attorney general in the Justice Department during the Obama administration, said in an interview.
The impact of census data on American society is so broad and deep that adding a citizenship question in the current political climate, hypercharged by the president's rhetoric, is like "detonating an explosive without testing the damage it could cause," said Levitt, now a constitutional law professor at Loyola Law School in Los Angeles. "That is wildly out of character for the Census Bureau, and wildly irresponsible."
The idea is that immigrants and noncitizens, spooked by Trump's agenda, may decline to respond to the census out of fear that 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.
Hans von Spakovsky, a lawyer at the conservative Heritage Foundation, said it's a common-sense way to improve the national debate on immigration that has been raging for over a decade.
"If you want to have an informed debate about that, then you need accurate data about how many noncitizens are in the country, and the only way we're going to get that is to put the question back on the census," von Spakovsky said. "The first president who recommended it was Thomas Jefferson, and they put it on the 1820 census."
U.S. District Judge Jesse Furman, an appointee of former President Barack Obama, will oversee the two-week trial in Manhattan 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.
Central to the case are Commerce Secretary Wilbur Ross, whose department houses the Census Bureau, and his interactions with Trump's anti-immigration associates and aides after the 2016 election. They include Kansas Secretary of State Kris Kobach, who was on Trump's failed voter-fraud commission, and former White House chief strategist Stephen Bannon.
Ross initially said he added the question to the census this past March after a request from U.S. Attorney General Jeff Sessions' Justice Department, which told him the information would help the agency enforce the Voting Rights Act. The government contends Ross' position gives him "nearly unfettered discretion over the format and content of the census," according to a recent court filing.
Plaintiffs led by New York Attorney General Barbara Underwood, who sued in April, say the plan to revive the citizenship question was always intended to depress the census response from Democratic-leaning immigrants. They say Trump officials cooked up the claim about the Voting Rights Act to make a discriminatory policy seem legitimate.
The states and cities, in a pretrial brief outlining their case, point to evidence that the question was proposed internally in late January 2017, the first month of Trump's presidency, in a draft executive order about immigration _ and long before the Justice Department brought up the Voting Rights Act.
The draft included "anti-immigrant provisions targeting illegal entries, visa overstays and unlawful employment" and made no mention of the voting law, the plaintiffs said in their filing. Ross, who was appointed in February 2017, first heard about the proposed query from Bannon and Kobach, they wrote, arguing that the two "were expressly motivated by a desire to stem the political power of immigrant communities of color."
Ross overruled the Census Bureau's own experts, who opposed adding the question "because it would lead to lower-quality citizenship data at higher cost and increased burden," the plaintiffs say. The head of the Justice Department's Civil Rights Division, John Gore, testified in a deposition that Sessions decided the agency should not "even meet with the Census Bureau to discuss alternative approaches," according to the plaintiffs' filing.
The U.S. claims the states and cities won't be able to prove any of that at trial.
"There is no evidence to demonstrate that the secretary acted in bad faith and did not actually believe the rationale set forth in his decision," the U.S. said in its filing. "Plaintiffs can only resort to unrelated innuendos."
Whatever Ross' motives, the citizenship question could well lead to an undercount of some ethnic groups, such as Hispanics and Asians, who live in households with a greater percentage of noncitizens and may fear the consequences of checking the box, said William Frey, a senior fellow with the Metropolitan Policy Program at the Brookings Institution and an expert on the census.
"That impacts, obviously, states that have large numbers of those folks, who are going to lose more congressional seats," said Frey, who isn't involved in the case. Citing the 2010 census, Frey said 14 percent of the U.S. population lives in households with one or more noncitizens.
The citizenship question was last asked on the complete count in 1950 and was eventually excluded because there weren't that many immigrants in the country, said census historian Margo Anderson, a retired professor of history and urban studies at the University of Wisconsin. Political pressure helped get the question on the long-form census sent to selected households in 1970. From there it migrated to the annual American Community Survey, which replaced the long form in 2005, she said.
It's hard to say whether its addition after seven decades will affect response rates, because nobody has tried to measure the actual impact of such a question, said Anderson, who filed an expert report for the plaintiffs in a lawsuit in federal court in San Francisco brought by the city of San Jose and the Black Alliance for Just Immigration.
"Asking sensitive questions is problematic for any general survey," she said. "And the census has to be an incredibly simple and noncontroversial exercise, because it is done on such an extensive scale." People might skip such a controversial question, she said, or skip the census altogether.
"Everything is supposed to be tested," Anderson said. "And this question has not been tested."
