Kravitz v. U.S. Dep't of Commerce

• Decision Date: 05 April 2019
• Docket Number: Case No.: GJH-18-1570,Case No.: GJH-18-1041
• Citation: 366 F.Supp.3d 681
• Parties: Robyn KRAVITZ, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants. La Unión del Pueblo Entero, et al., Plaintiffs, v. Wilbur Ross, et al., Defendants.
• Court: U.S. District Court — District of Maryland

366 F.Supp.3d 681

Robyn KRAVITZ, et al., Plaintiffs,

v.UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants.¹

La Unión del Pueblo Entero, et al., Plaintiffs,

v.Wilbur Ross, et al., Defendants.

Case No.: GJH-18-1041

Case No.: GJH-18-1570

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

Signed April 5, 2019

Amee M. Frodle, Pro Hac Vice, Benjamin Duke, Pro Hac Vice, Bianca Nunes, Pro Hac Vice, Dustin Cho, Jose Arvelo, Pro Hac Vice, Karun Tilak, Pro Hac Vice, Shankar Duraiswamy, Pro Hac Vice, Tina M. Thomas, Pro Hac Vice, Daniel Thurston Grant, Covington and Burling LLP, Burth G. Lopez, The Mexican American Legal Defense and Educational Fund, Washington, DC, Thomas Saenz, Pro Hac Vice, Mexican American Legal Defense and Educational Fund, Los Angeles, CA, Lawrence A. Hobel, Pro Hac Vice, Covington and Burling LLP, San Francisco, CA, for Plaintiffs.

Carol Federighi, Brett Shumate, Courtney D. Enlow, Joshua E. Gardner, United States Department Of Justice, Stephen Ehrlich, Garrett Coyle, Martin Tomlinson, Washington, DC, for Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

GEORGE J. HAZEL, United States District Judge

TABLE OF CONTENTS

I. Findings of Fact...692

A. The Secretary's Decision (Administrative Record)...693

1. Genesis of Secretary Ross's Interest in Including a Citizenship Question...693

2. Manufacturing DOJ's VRA Rationale...695

3. Census Bureau Research, Analysis, and Recommendations...698

4. Secretary Ross and Staff Persist...701

B. The Secretary's Decision (Extra-Record Evidence)...706

C. Standing...712

1. Differential Decline in Census Participation...713

2. Differential Undercount of at Least 2 Percentage Points...716

3. Effect of a Differential Undercount...722

4. Additional Harms...732

II. Conclusions of Law...733

A. Standing...736

1. Injury to Individual Plaintiffs and Members of Organizational Plaintiffs...736

2. Causation and Redressability of Individual Plaintiffs' and Member Plaintiffs' Injuries...740

3. Organizational Plaintiffs' Standing...741

B. APA Claims...742

1. The Decision to Add the Citizenship Question Was Arbitrary and Capricious and Must Be Set Aside Under APA § 706(2)(A)-(D)....743

2. Secretary Ross's Stated Rationale was Pretextual in Violation of the APA....749

C. Enumeration Clause Claims...751

D. Equal Protection and 42 U.S.C. § 1985 Claims...752

E. Remedies...755

III. Conclusion...756

Plaintiffs in these related cases challenge Commerce Secretary Wilbur Ross's decision to include a citizenship question on the 2020 Census.² Plaintiffs contend that the addition of a citizenship question violates the Administrative Procedure Act (APA) and the United States Constitution. The LUPE Plaintiffs also allege that the question was added as part of a conspiracy to violate their civil rights in violation of 42 U.S.C. § 1985. The Court held a six-day bench trial between January 22 and January 31, 2019. Pursuant to Federal Rule of Civil Procedure 52(a)(1), this memorandum opinion contains the Court's findings of fact and conclusions of law, resolving Plaintiffs' claims. For the following reasons, the Court concludes: Plaintiffs have standing to assert their claims; the decision to add a citizenship question to the 2020 Census was arbitrary and capricious in violation of the APA; the Defendants' actions violate the Constitution by unreasonably compromising the distributive accuracy of the Census contrary to the Enumeration Clause's³ mandate; and Plaintiffs did not meet their burden to prove Defendants' actions violate the Due Process Clause or amount to a conspiracy to violate civil rights because Plaintiffs failed to show that the addition of the citizenship question was motivated by invidious racial discrimination.

Discovery here was coordinated with the discovery conducted in two consolidated cases before Judge Jesse M. Furman of the United States District Court for the Southern District of New York (together, the "New York Case"), and the parallel Census cases pending before Judge Richard G. Seeborg in the United States District Court for the Northern District of California (together, the "California Case"). SeeNew York v. U.S. Dep't of Commerce , No. 1:18-cv-02921-JMF (S.D.N.Y.) (N.Y. Docket); State of Cal. v. Ross , No. 3:18-cv-01865-RS (N.D.C.A 2018) (California Docket). In those cases and here, Defendants objected to consideration of any discovery beyond the material in the Administrative Record. Given the limited time for appellate review of these matters prior to the start of the 2020 Census, this Court borrows from the approach taken by Judges Furman and Seeborg and will attempt to distinguish facts and conclusions of law based exclusively on the Administrative Record from those supported by extra-record evidence. Plaintiffs and Defendants have stipulated that the Administrative Record includes both 1) the initial materials compiled and submitted by Defendants, PX-1 (AR 1–1320) and 2) the supplemental materials, PX-3 to PX-14 (AR 1322–AR 13024), that Defendants produced in compliance with Judge Furman's order that they complete the initial administrative record, N.Y. Docket, ECF No. 199 (Jul. 5, 2018), after Secretary Ross's supplemental memorandum demonstrated that the initial record was deficient, PX-2 (AR 1321). Joint Stipulation Admitting Trial Exhibits, ECF No. 134.⁴

The Court will now begin its analysis by discussing the facts found to be proven by a preponderance of the evidence at trial, followed by the conclusions of law reached by applying those facts to the applicable legal principles, and, finally, the appropriate remedy.

I. Findings of Fact

1. To conduct the modern person-by-person Decennial Census count, the Census Bureau sends a short questionnaire with only a handful of questions to virtually every housing unit in the United States. ECF No. 103-1, Joint Stips. ¶ 20. For the 2020 Census, in addition to responding by mail, households will also be given the option to complete the questionnaire online or over the phone. Id. ¶ 22. If a household does not self respond, the Census Bureau then sends a staffer, known as an enumerator, to the housing unit to attempt to collect data via an in-person interview. Id. ¶ 23. This process is the first step in the Census Bureau's Non Response Follow Up (NRFU) operation. Id.

2. For the 2020 Census, the Census Bureau has proposed using administrative records to enumerate a limited number of those households for which there are high quality administrative data about the household if the initial NRFU visit does not result in the collection of complete data for that household. Id. ¶ 24. The Census Bureau will have enumerators attempt to recontact households for which high-quality administrative records do not exist. Id. ¶ 25. If by the third contact attempt a household has not responded, the housing unit will become "proxy-eligible." Id. ¶ 26. A proxy is someone who is not a member of the household—such as a neighbor, landlord, postal worker, or other knowledgeable person who can provide information about the unit and the people who live there. Id. ¶ 27. After three proxy attempts, a household becomes eligible for what is known as "whole-person imputation" or "whole-household imputation," in which the Census Bureau imputes the characteristics of the household, including in some circumstances the household member count. See id. ¶ 29. After the NRFU process is completed, the Census Bureau counts the responses from every household to determine the population count in each state. Id. ¶ 30. Data from the Decennial Census are reported down to the census block. Id. ¶ 31.

3. Between 1970 and 2000, the Census Bureau used both the short-form questionnaire (described above) and a long-form questionnaire (containing inquiries on the short-form questionnaire as well as additional questions), which was distributed to only a sample of the population. See U.S. CENSUS BUREAU, MEASURING AMERICA: THE DECENNIAL CENSUSES FROM 1790 TO 2000 , http://www2.census.gov/library/publications/2002/dec/pol_02-ma.pdf, 77–78, 84–85, 91–92, 99–100. During that time, the long-form questionnaire contained a citizenship question, but the short-form questionnaire did not. Id.

4. In 2005, the Census Bureau began administering the American Community Survey (ACS), a yearly survey of approximately 3.5 million households or 1 in every 38 households across the United States. ECF No. 103-1, Joint Stips. ¶ 72. The ACS replaced the long-form questionnaire. Id. ¶ 70. While the Decennial Census is intended to provide an actual enumeration for apportionment and other purposes, the ACS is intended to provide information on characteristics of the population, and the social and economic needs of communities. Id. ¶ 80. Unlike the short-form Census questionnaire, which asks only a handful of questions, the ACS asks more than 50 questions, including a citizenship question. Id. ¶ 73. The data collected by the ACS allows the Census Bureau to produce estimates of Citizen Voting Age Population (CVAP). Id. ¶ 77. CVAP data based on responses to the ACS are reported by the Census Bureau down to the census block group level. Id. ¶ 78.

A. The Secretary's Decision (Administrative Record)

5. On March 26, 2018, Secretary Ross issued a memorandum directing the Census Bureau to add a citizenship question to the 2020 Census. See PX-26 (AR 1313–20) (Ross Memo). He asserted that the decision was prompted by a December 12, 2017 letter from DOJ, requesting the addition of a citizenship question to facilitate enforcement of Section 2 of the Voting Rights Act (VRA). PX-26 (AR 1313). The Ross Memo states that DOJ needed to obtain CVAP block level data from Decennial Census data because "current data collected under the ACS are insufficient in scope, detail, and certainty to meet its purpose." PX-26 at 2 (AR 1314). Secretary Ross further states that the DOJ's "need for accurate citizenship data and the limited burden that the reinstatement of the citizenship question would impose outweigh fears about a potentially lower response...