Overview
In a 277-page decision today, Judge Furman vacated the Commerce Department’s decision to add a citizenship question to the 2020 census, finding that the decision was a violation of the Administrative Procedure Act. (Our prior posts on the case are here.)
Judge Furman found that Commerce Secretary Wilbur Ross justified the new question based on a rationale – that doing so would enhance enforcement of the Voting Rights Act (VRA) – that was clearly a pretext. Judge Furman stated he was unable to determine “what Secretary Ross’s real reasons for adding the citizenship question were,” but found the evidence overwhelming that “the VRA was a post hoc rationale for a decision that Secretary had already made”:
Secretary Ross committed to adding the citizenship question months before he even received the request from DOJ. By definition, Secretary Ross’s original and actual rationale could not have been promotion of better VRA enforcement because the record reveals that he had made up his mind well before DOJ even agreed to submit the request to him.In addition, Judge Furman found that his conclusion was “supported by the sheer number of ways in which Secretary Ross and his aides tried to avoid disclosure of, if not conceal, the real timing and the real reasons for the decision to add the citizenship question,” including the “curated and highly sanitized nature of the Administrative Record initially filed by Defendants in this matter,” and the “misleading, if not false, statements in the Ross Memo,” the memorandum directing that the question be added. Judge Furman thus concluded:
Those acts and statements are not the transparent acts and statements one would expect from government officials who have decided, for bona fide and defensible reasons, to change policy. Nor are they the acts and statements of government officials who are merely trying to cut through red tape. Instead, they are the acts and statements of officials with something to hide.
