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

• Decision Date: 22 August 2018
• Docket Number: Case No.: GJH-18-1041
• Parties: Robyn KRAVITZ, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants.
• Court: U.S. District Court — District of Maryland

336 F.Supp.3d 545

Robyn KRAVITZ, et al., Plaintiffs,

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

Case No.: GJH-18-1041

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

Signed August 22, 2018

Benjamin Duke, Pro Hac Vice, Bianca Nunes, Pro Hac Vice, Karun Tilak, Pro Hac Vice, Shankar Duraiswamy, Pro Hac Vice, Tina M. Thomas, Pro Hac Vice, Dustin Cho, Daniel Thurston Grant, Covington and Burling LLP, Washington, DC, Lawrence A. Hobel, Pro Hac Vice, Covington and Burling LLP, San Francisco, CA, for Plaintiffs.

Carol Federighi, U.S. Department of Justice, Stephen Ehrlich, Washington, DC, for Defendants.

MEMORANDUM OPINION

GEORGE J. HAZEL, United States District Judge

Every ten years, the Census Bureau takes on the herculean task of counting the entire population of the United States. The Census Bureau expends considerable resources on this task, presumably to ensure that the count is as accurate as possible because an accurate count is essential to ensure, among other things, equal representation—a hallmark of our Constitution. As the 2020 Census approaches, the Census Bureau continues to refine its plans and prepare for the next count. As a part of that refinement, earlier this year, the Census Bureau formally added a new question to the census questionnaire, one that asks respondents to indicate whether each household member is a citizen of the United States by birth or naturalization, or not a U.S. citizen. Nineteen individual residents of Texas, Arizona, Nevada, and Florida (collectively, "Plaintiffs")¹ allege that this question will dramatically depress census response rates in their local communities and disproportionally affect the overall accuracy of the population count. Plaintiffs seek to enjoin the Census Bureau from including the citizenship question in the 2020 Census and assert claims pursuant to the Census Clause of the United States Constitution (Count I) and the Administrative Procedure Act ("APA") (Count II). ECF No. 17.² Presently pending before the Court is Defendants' Motion to Dismiss, ECF No. 24, and Plaintiffs' Motion for Discovery, ECF No. 43. The Court held a Motions Hearing on July 18, 2018. See ECF No. 45. For the following reasons, Defendants' Motion to Dismiss is denied and Plaintiffs' Motion for Discovery is granted.

I. BACKGROUND³

A. Census Background

The United States Constitution mandates that the Congress conduct an "actual Enumeration" of "the whole number of persons in each state" every ten years. U.S. Const., Art. I, § 2, cl. 3 and Am. XIV § 2 (hereinafter, "Census Clause" or "Enumeration Clause"). Through the Census Act, 13 U.S.C. § 141 et seq. , Congress has delegated the duty of conducting the decennial census to the Secretary of Commerce, "in such form and content as he may determine." Id. § 141(a). In addition to counting the population, "the Secretary is authorized to obtain such other information as necessary." Id. The "actual Enumeration" resulting from the decennial census is used to apportion representatives in the U.S. House of Representatives, draw intra-state congressional and state legislative districts of equal proportion, and allocate more than $675 billion in federal funding for over 130 different federal programs. See ECF No. 17 ¶¶ 41–43. Plaintiffs are either eligible to vote or are currently applying for U.S. citizenship and intend to vote in elections following the 2020 decennial census. Collectively, Plaintiffs utilize government services funded, in part, through federal expenditures for roads and highways, the Federal Foster Care Program ("Title IV-E"), Medicaid, and Title I of the Elementary and Secondary Education Act ("Act").See, e.g., id. ¶¶ 16, 17.

While the primary purpose of the decennial census is to count the population for apportionment purposes, "the decennial census has grown considerably over the past 200 years" and is also used to collect demographic data on the population. See Dep't of Commerce v. U.S. House of Representatives , 525 U.S. 316, 341, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999) (citations and internal quotations omitted). Since the 1820 enumeration, the decennial censuses have included questions related to foreign birth, naturalization, and citizenship in varying forms. See ECF No. 24-1 at 12 (citing U.S. Census Bureau, Measuring America: The Decennial Censuses From 1790 to 2000, at 6, https://www2.census.gov/library/publications/2002/dec/pol_02-ma.pdf (hereinafter, "Measuring America") ).⁴ With the exception of the 1840 Census, all censuses from 1820 through 1950 asked all respondents for information relating to citizenship, birthplace, or both. See Measuring America at 9, 11, 13, 15. For example, the 1830 Census asked whether individuals were "foreigners not nationalized." Id. at 7. The 1930 Census asked for the place of birth of all individuals and his or her parents, the year of immigration and naturalization for all foreign-born individuals, and whether he or she was able to speak English. Id. at 59. In 1940, the Census Bureau began the practice of sampling a portion of the population for more detailed information.⁵

Starting in 1970, the Census Bureau asked respondents to complete and mail back the census questionnaire. Most households received a short form questionnaire asking a minimum number of questions ("short form"), while a smaller number received a long-form questionnaire that included additional questions ("long form"). See U.S. Census Bureau, Questionnaires, https://www.census.gov/history/www/through_the_decades/questionnaires/; see also ECF No. 17 ¶¶ 63, 75. In 1970, 20% of the population were asked to provide their birthplace, 15% were asked to provide their parents' birthplace, and 5% were asked whether the individual respondent, if foreign born, had been naturalized. Measuring America at 78. In the 1980–2000 Censuses, one in six households received the long form questionnaire and were asked whether they had been naturalized (1980) or whether they were citizens (1990, 2000). Id. at 86, 91–92, 97. Following the 2000 Census, the Census Bureau stopped using the long form questionnaire. Instead, starting in 2005, the Census Bureau began collecting monthly demographic data, including citizenship and national origin information, through the American Community Survey ("ACS"). The ACS is sent to approximately one in thirty-eight households each year. See U.S. Census Bureau, Archive of American Community Survey Questions, available at https://www.census.gov/programs-surveys/acs/methodology/questionnaire-archive.html; see also ECF No. 17 ¶ 63.

B. Preparation for the 2020 Census

On March 28, 2017, the Census Bureau submitted a report to Congress (the "March 2017 Report") indicating that the 2020 Census would ask respondents to answer questions on behalf of themselves and household members about their age, gender, race/ethnicity, and whether they owned or rented their residence. ECF No. 17 ¶¶ 72–73.⁶ Plaintiffs allege that the March 2017 Report did not include citizenship-related questions because, according to the Census Bureau, doing so "would depress response rates, particularly among certain historically undercounted groups, and would compromise the accuracy and completeness of the census count." ECF No. 17 ¶ 74; see also id. ¶¶ 76–81.

On March 26, 2018, Secretary Ross issued a memorandum setting forth his decision to include a citizenship question on the 2020 Census. Id. ¶ 88; ECF No. 1-2 ("Ross Memorandum"). Per the Ross Memorandum, the Secretary's decision was prompted by a December 12, 2017 request from the Department of Justice ("DOJ") to include the question so that DOJ could utilize census block level citizenship voting age population ("CVAP") data in order to better enforce Section 2 of the Voting Rights Act ("VRA"), which protects the voting rights of minority populations. ECF No. 1-2 at 1. According to the Ross Memorandum, the Census Bureau performed a comprehensive review of DOJ's request and found "that the 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 rate." Id. at 6.

Shortly thereafter, on March 29, 2018, the Census Bureau submitted its report to Congress in accordance with § 141(f)(2) (the "March 2018 Report") and indicated that the 2020 Census would include the citizenship question. ECF No. 17 ¶ 102; ECF No. 1-3 at 12. On June 21, 2018, after Plaintiffs filed their Amended Complaint, the Secretary clarified statements made in the earlier Ross Memorandum and indicated that he began considering the citizenship question, "which other senior Administration officials had previously raised," "[s]oon after [his] appointment as Secretary of Commerce." ECF No. 26-1 ("Ross Supplemental Memorandum"). The Secretary clarified that he and his staff "inquired whether the Department of Justice (DOJ) would support, and if so would request, inclusion of a citizenship question as consistent with and useful for enforcement of the Voting Rights Act." Id.⁷

C. Alleged Impact of the Citizenship Question

Plaintiffs allege that the Secretary's justification for adding the citizenship question is a pretext for its true aim—"to press the 2020 Census into the service of [President Trump's] anti-immigration political agenda." ECF No. 17 ¶ 82. Specifically, Plaintiffs allege that by January 31, 2017, the Trump Administration had prepared a draft Executive Order that, among other things, directed the Census Bureau to ask a citizenship question. Id. ¶ 83. Without any reference to the VRA, the Order justified the citizenship question as "fulfill[ing] several campaign promises by aligning immigration policies with the national interest" and addressing "the flow of illegal entries and visa overstays" and the "unlawful employment of aliens." Id. Additionally, President Trump's re-election campaign acknowledged that "President Trump [had] officially mandated that the 2020 United States Census ask peopl...