La Unión Del Pueblo Entero v. Ross

• Decision Date: 09 November 2018
• Docket Number: Case No.: GJH-18-1570
• Citation: 353 F.Supp.3d 381
• Parties: LA UNIÓN DEL PUEBLO ENTERO, et al., Plaintiffs, v. Wilbur ROSS, et al., Defendants.
• Court: U.S. District Court — District of Maryland

353 F.Supp.3d 381

LA UNIÓN DEL PUEBLO ENTERO, et al., Plaintiffs,

v.Wilbur ROSS, et al., Defendants.

Case No.: GJH-18-1570

United States District Court, D. Maryland, Southern Division.

Signed November 9, 2018

Andrea E. Senteno, Pro Hac Vice, Denise Hulett, Pro Hac Vice, Burth G. Lopez, The Mexican American Legal Defense and Educational Fund, Eri Andriola, Pro Hac Vice, John C. Yang, Pro Hac Vice, Niyati Shah, Pro Hac Vice, Terry Ao Minnis, Asian Americans Advancing Justice, Washinton, DC, Robert P. Newman, Law Office of Robert P. Newman, PC, Silver Spring, MD, Julia A. Gomez, Pro Hac Vice, Mexican American Legal Defense and Educational Fund, Los Angeles, CA, Nina Perales, Pro Hac Vice, Mexican American Legal Defense and Educational Fund, San Antonio, TX, Tanya G. Pellegrini, Pro Hac Vice, Mexican American Legal Defense and Educational Fund, Sacramento, CA, for Plaintiffs.

Carol Federighi, US Department of Justice, Civil Division Federal Programs Branch, Stephen Ehrlich, Garrett Coyle, Washington, DC, for Defendants.

MEMORANDUM OPINION

GEORGE J. HAZEL, United States District JudgeThis case arises out of the Census Bureau's decision to add a citizenship question to the 2020 Census. Plaintiffs, seven individuals and twenty-six immigrant advocacy organizations, claim that asking about respondents' citizenship status will dramatically depress response rates in Plaintiffs' communities, compromising the survey's accuracy, disproportionately diluting political power, and leading to a malapportionment of federal funding.¹ Based on these allegations, Plaintiffs assert claims pursuant to the Census Clause of the United States Constitution (Counts I and IV), the Equal Protection Clause of the Fifth Amendment of the United States Constitution (Count II), 42 U.S.C. § 1985 (Count III), and the Administrative Procedures Act (APA) (Count V); and seek to enjoin the Census Bureau from including the citizenship question.² Defendants' Motion to Dismiss, ECF No. 54, and Plaintiffs' Motion for Discovery, ECF No. 70 are presently pending before this Court. No hearing is necessary. See Loc. R. 105.6. For the following reasons, Defendants' Motion to Dismiss and Plaintiffs' Motion for Discovery are both denied.

I. BACKGROUND³

This court has previously described in detail the decennial census's purpose, preparation for the 2020 census, and the citizenship question's alleged impact on similarly-situated individual plaintiffs. See Kravitz v. United States Dep't of Commerce , 336 F.Supp.3d 545, 552–55, 2018 WL 4005229, at *2–4 (D. Md. 2018). The court incorporates that background here, but also briefly reviews the factual and legal background pertinent to the new legal issues before it.

A. Factual background

The United States Constitution requires that the Congress conduct an "actual Enumeration" of the population every ten years "in such a manner as" the House of Representatives "shall by law direct." U.S. Const., Art. I, § 2, cl. 3 ("Enumeration Clause"). "Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state." U.S. Const. Am. XIV § 2 ("Apportionment Clause"). The Court refers to the Enumeration Clause and the Apportionment Clause together as the "Census Clause." The population count is used to apportion representation as well as to allocate more than $675 billion in federal funding for over 130 different federal programs and to collect demographic data. ECF No. 42 ¶ 138–39. Congress delegates the duty of conducting the decennial census to the Secretary of Commerce. 13 U.S.C. § 141 et seq. Within two and three years of the census, the Secretary must submit "a report containing the Secretary's determination of the subjects proposed to be included, and the types of information to be compiled, in such census" to Congress. 13 U.S.C. § 141(f)(1)–(2).

In the lead up to the 2020 Census on March 28, 2017, the Secretary submitted such a report to Congress; this initial report did not include citizenship as a proposed subject. ECF No. 42 ¶ 173. Plaintiffs allege that citizenship was not a proposed subject because although the Trump administration began to consider adding a citizenship question in as early as January 2017, id. ¶ 241, the Census Bureau recognized that reinstating a citizenship question would "inevitably jeopardize the overall accuracy of the population count" given that "suspicious and fearful" respondents would refuse to cooperate, concerned that the information would be used against them. Id. ¶¶ 213.

Secretary Ross began considering adding the citizenship question, "which other senior Administration officials had previously raised," "[s]oon after [his] appointment as Secretary of Commerce." ECF No. 42 ¶ 190 & n. 55 (citing Supplemental Memorandum by Secretary of Commerce Wilbur Ross, New York et al. v. Dep't of Commerce et al. No. 1:18-cv-0291-JMF (S.D.N.Y. June 6, 2018), ECF No. 189-1). Around the time when Defendant Ross was appointed Secretary of Commerce, Kansas Secretary of State Kris Kobach spoke with President Trump about adding a citizenship question because, in Kobach's view, states like California have had "congressional seats inflated by counting illegal aliens." ECF No. 42 ¶ 241. Soon after Mr. Kobach and the President spoke about the Census, in January 2017, a draft Executive Order, entitled "Executive Order on Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs" leaked through news reports. Id. ¶ 238. The draft order instructed the Director of the Census Bureau to include a citizenship question on the 2020 Census to "fulfill several campaign promises" and address "the flow of illegal entries and visa overstays." Id. ¶ 239. The draft order did not mention enforcing the Voting Rights Act—the rationale that the administration would later use to support reinstating the citizenship question. Id. ¶ 240.

In July 2017, Mr. Kobach emailed Defendant Ross to follow up about adding a citizenship question to the 2020 Census. Id. ¶ 174. Prior to the email exchange, Kobach and Ross had at least one phone conversation about adding a citizenship question. Id. The phone call took place "at the direction of" Trump Administration advisor Steve Bannon. Id. ¶ 175. Mr. Kobach's interest in the 2020 Census stemmed from his belief that the lack of a citizenship question "leads to the problem that aliens who do not actually ‘reside’ in the United States are still counted for congressional apportionment purposes." Id. ¶ 174. Plaintiffs allege that Secretary Ross and Mr. Kobach spoke on the phone again about the citizenship question at another point in July 2017. Id. ¶ 176.

Eventually, despite DOJ's initial reluctance, at Secretary Ross's request, the acting head of the Civil Rights Division of the Department of Justice, John Gore, provided the Voting Rights Act justification around November 2017—after Mr. Kobach's communications with the administration. ECF No. 42 ¶ 178, 180. Specifically, Mr. Gore drafted a letter claiming that the addition of the citizenship question was necessary to enforce Section 2 of the Voting Rights Act. Id. On November 3, 2017, Mr. Gore sent the draft letter to a Department of Justice Management Division official, Arthur Gary, and asked that the official pass it along to the Census Bureau under Mr. Gary's name. Id. ¶ 178. Mr. Gary did so. Id. ¶ 180. Notably, the Department of Justice has filed only four Section 2 Voting Rights Act enforcement actions since 2010, id. ¶ 183, and in testimony before Congress, Mr. Gore could not identify a single case brought under the Voting Rights Act that failed due to a lack of citizenship data. Id. ¶ 184.

On March 26, 2018, Secretary Ross directed the Census Bureau to include a citizenship question. ECF No. 42-1 ¶ 186. Plaintiffs allege that Defendants added the 2020 citizenship question to depress the count of immigrant communities of color, thereby decreasing this population's impact on and benefit from apportioned political power. ECF No. 42 ¶¶ 375–76. Plaintiffs contend that Secretary Ross had no basis to find the citizenship question necessary to enforce the Voting Rights Act or that the benefits of collecting citizenship data outweigh potential adverse effects on response rates. Id. ¶ 385. Relying on the above sequence of events, Plaintiffs allege that the Secretary engineered the Voting-Rights-Act rationale with the assistance of the Department of Justice to cloak Defendants' true purpose. Id. ¶ 189 n. 53.

Throughout the period when the administration was considering the citizenship question addition, President Trump made the following statements, among others, relevant to his views of the communities that Plaintiffs represent: he complained on January 11, 2018, about "these people from shithole countries" coming to the United States and added that the United States should accept more immigrants from countries like Norway, ECF No. 42 ¶ 248; (2) he commented on May 16, 2018, that "[w]e have people coming into the country, or trying to come in.... You wouldn't believe how bad these people are. These aren't people, these are animals ...," id. ¶ 250; and (3) he asserted that Democrats "want illegal immigrants, no matter how bad they may be, to pour into and infest our Country," id. ¶ 253.

According to Plaintiffs, the citizenship question will harm the individual Plaintiffs and the organizational Plaintiffs' clients, members, and constituents because Latinos, African Americans, Asian Americans, Native Americans, and Non-U.S. Citizens (collectively, "Undercount Groups") will be disproportionately undercounted in the 2020 Census. ECF No. 42 ¶ 260.⁴ The Undercount Groups are already recognized as "hard-to-count populations," id. ¶ 261, and they are more likely to be suspicious about the purpose of the decennial census and the government's use of census data than other population groups, a suspicion allegedly exacerbated by the current political...