Common Cause Files Brief in Challenge to Addition of Citizenship Question to 2020 Census

Today, Common Cause, joined by current and former elected and appointed Republican officials, filed an amici brief in the U.S. District Court for the Southern District of New York in support of the New York State’s challenge to the addition of a citizenship question to the 2020 Census. The brief filed in State of New York v. United States Department of Commerce, emphasizes that the United States Constitution, and subsequently the Fourteenth Amendment, guarantees the right of every resident of the United States to be represented by a member of Congress. The Commerce Department’s addition of the citizenship question, the brief argues, will cause undercounts in areas with large non-citizen populations resulting in a Congress that will not be equally apportioned by population as the Founders intended.

“Americans deserve a fair and accurate census that counts every resident. Adding a citizenship question, particularly in the current climate, will undermine the intentions and guarantees of the United States Constitution,” said Karen Hobert Flynn, president of Common Cause. “The primary purpose of the census is to ensure equal representation of every resident of the United States. We trust the court will recognize this fact and move to ensure the equal representation for every resident.”

The brief emphasizes that the failure to account for the risk of undermining the fundamental constitutional principal of equal representation violates the Fifth Amendment and the Administrative Procedure Act (APA). Because the citizenship question undermines a core constitutional principal, amici argue that is should be subject to more exacting scrutiny under the Fifth Amendment’s equal protection guarantees. Further the brief notes the substantive and procedural protections of the APA are violated because the action was undertaken without any reasoned explanation.

Fellow amici include New Hampshire State Representative Jody L. McNally, (R-District 10 Stratford), retired Republican Associate Justice of the North Carolina Supreme Court Robert Orr and former Republican Federal Election Commission Chair Trevor Potter.

Amici are represented by Gregory L. Diskant, Aron Fischer, Benjamin F. Jackson, and Jacob Newman of Patterson Belknap Webb & Tyler LLP.

To read the brief, click here.