U.S. District Judge Jesse Furman U.S. District Judge Jesse Furman. Photo: Diego M. Radzinschi

A pair of lawsuits challenging plans to include a question on the 2020 census about individuals’ immigration status survived a motion to dismiss and will be able to proceed on Administrative Procedure Act and due-process grounds, U.S. District Judge Jesse Furman of the Southern District of New York ordered Thursday.

The suits’ survival at least provides an avenue for the states and immigration organizations attempting to challenge the move by the administration of President Donald Trump to succeed, despite Furman’s decision to grant the dismissal of some of the claims.

In a statement, New York Attorney General Barbara Underwood called the decision a win for those who care about “a fair and accurate Census.”

“As we’ve argued, the Trump administration’s plan to demand citizenship status as part of the Census is unlawful—and it would potentially cause a huge undercount that would threaten billions in federal funds and New York’s fair representation in Congress and the Electoral College,” Underwood said.

Additionally, the attorney general noted an earlier preliminary decision by the same court to allow the suit to proceed, finding “strong” evidence the Trump administration acted in bad faith on the census decision.

In his extended findings released on Thursday, Judge Furman noted that from about 1820 to 1960 an immigration question, in one form or another, appeared on the census. The court found that, contrary to the assertion by the plaintiffs, Secretary of Commerce Wilbur Ross Jr. was empowered by Congress, via the U.S. Constitution’s enumeration clause, to include a citizenship question in the decennial census. Every level of federal government has “blessed this dual use of the census,” Furman said.

But just because the commerce secretary is able to include a citizenship question on the census doesn’t mean that the court isn’t able to review the reasons for doing so and how the conclusion was reached. As the court has the power to review, Furman found that Ross may have violated the Fifth Amendment rights of the immigrant rights groups in New York Immigration Coalition v. U.S. Department of Commerce.

The immigrant advocacy groups argued that Ross’ motivation on reinstating the question was motivated “by discriminatory animus and that its application will result in a discriminatory effect,” Furman said. The conclusion is supported by indications Ross deviated from standard procedures in “hastily” adding the citizenship question, while evidence also suggested Ross’ rationale for doing so was pretextual, according to the court. Additionally, statements at the time by decision-makers in the process, including one from Trump’s 2020 re-election campaign stating he issued a presidential mandate for Ross’ decision, added to the inference, Furman stated.

“New York’s 4.4 million immigrants will be counted regardless of Trump’s attempts to keep us down. Today was a big victory for all New Yorkers and we’re not going to lose a dime or our voices to D.C.,” Steven Choi, executive director of the New York Immigration Coalition, said in a statement regarding the group’s legal win.

Accordingly, Furman allowed the equal protection claims, as well as the ADA claims in both cases that the court found the defendants did not substantively challenge, to proceed, while dismissing the plaintiffs’ enumeration clause challenges to Ross’ ability to add the citizenship question.

In a statement, a spokesman for the Commerce Department said the department was pleased the court agreed on Ross’ authority.

“We are confident that this includes the authority to reinstate a citizenship question and that plaintiffs’ remaining claims will be dismissed after discovery shows that the secretary lawfully exercised his discretion to do so,” the spokesman said. “The secretary’s and the Census Bureau’s priority remains conducting a complete and accurate 2020 Census.”