Nat'Lass'N v. Bureau of the Census, Case No.: PWG-18-891

• Court: United States District Courts. 4th Circuit. United States District Court (Maryland)
• Parties: NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al., Plaintiffs, v. BUREAU OF THE CENSUS, et al., Defendants.
• Docket Number: Case No.: PWG-18-891
• Decision Date: 29 January 2019

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al., Plaintiffs,
v.
BUREAU OF THE CENSUS, et al., Defendants.

Case No.: PWG-18-891

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division

January 29, 2019

MEMORANDUM OPINION AND ORDER

Every ten years, beginning in 1790, the United States has counted its population as of the first of April, as required by the Enumeration Clause of the United States Constitution. U.S. Const. art. I, § 2, cl. 3 ("Enumeration Clause" or "Census Clause"); see Franklin v. Massachusetts, 505 U.S. 788, 803 (1992). Specifically, it is the Secretary of Commerce ("Secretary") to whom the Congress has delegated the duty of conducting the decennial census, and who has broad discretion in fulfilling his duty. 13 U.S.C. § 141; Wisconsin v. City of New York, 517 U.S. 1, 19-20 (1996); La Unión del Pueblo Entero v. Ross ("LUPE"), No. GJH-18-1570, --- F. Supp. 3d ----, 2018 WL 5885528, at *2 (D. Md. Nov. 9, 2018). The results of this headcount are important in many regards, not the least of which are the apportionment of Congressional representatives and the allocation of federal resources based on population. See id.; U.S. Const. am. XIV, § 2 ("Apportionment Clause"). Congress has found that "[t]he decennial enumeration of the population is one of the most critical constitutional functions our Federal Government performs." Dep'ts of Commerce,

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Justice, & State, the Judiciary, & Related Agencies Appropriations Act ("1998 Appropriations Act"), Pub. L. No. 105-119, § 209(a)(5), 111 Stat. 2440, 2480 (1997).

Congress also has found that "[i]t is essential that the decennial enumeration of the population be as accurate as possible consistent with the Constitution and Laws of the United States." Id. (Finding No. 6). Yet, decade after decade, "[t]he census has historically undercounted racial and ethnic minorities." Am. Compl. ¶ 22, ECF No. 38;¹ see also Wisconsin, 517 U.S. at 6, 7 ("Although each [of the first twenty censuses] was designed with the goal of accomplishing an 'actual Enumeration' of the population, no census is recognized as having been wholly successful in achieving that goal. . . . Since at least 1940, the Census Bureau has thought that the undercount affects some racial and ethnic minority groups to a greater extent than it does whites."). Indeed, before the passage of the Fourteenth Amendment, the Enumeration Clause actually required a calculated undercount, counting only "three fifths of all other persons" who were not "free Persons," that is, three-fifths of the slave population. U.S. Const. art I, § 2, cl. 3.

The Fourteenth Amendment ostensibly removed the inequality by providing that "Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of the persons in each state . . . ."² Id. am. XIV, § 2 (emphasis added). Still, more than 150 years after the Fourteenth Amendment's passage, the Bureau of the Census ("Bureau") acknowledges that "racial and ethnic minorities," as well as a slew of others—"non-English speakers, lower income people, the homeless, undocumented immigrants, young and mobile people, children, LGBTQ individuals, and 'persons who are angry at and/or distrust the

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government'"—, are "'hard-to-count.'" Am. Compl. ¶ 23; see also Wisconsin, 517 U.S. at 6 ("Despite consistent efforts to improve the quality of the count, errors persist."). And, the 2020 decennial census ("2020 Census") will depart in significant ways from the manner in which the decennial census has been conducted for more than fifty years (by mailing the census questionnaire and then following up with personal visits to non-responders), as it will feature electronic surveys and online responses, heightening the need for field testing and "dress rehearsals" to ensure that the results are as accurate as possible, and the process itself protected from cybersecurity threats. See Am. Compl. ¶¶ 69-75.

In March 2018, with the 2020 Census only two years away, Plaintiffs³ filed the lawsuit now before me, focusing on the Bureau's preparedness to conduct the 2020 Census in a manner that will result in an accurate count of the United States of America's population, as the Enumeration Clause requires. This single-count complaint asserts only an Enumeration Clause violation. Compl., ECF No. 1; see Am. Compl. When Plaintiffs filed suit, the Bureau, a division of the United States Department of Commerce, was without a permanent director or deputy director. Am. Compl. 23.⁴ Further, it had "canceled essential field tests . . . and two of three 'dress rehearsal' sites," and (at least in Plaintiffs' view) it lacked "sufficient funding to address its many

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challenges." Id. Defendants⁵ did not then dispute the status of their leadership, and while the Bureau now has a director, Defendants do not dispute the status of the testing they have (or, more pointedly, have not) conducted, or the amount of funding allocated to the Bureau. And, they unflinchingly acknowledge their obligation to count the United States population accurately. Defs.' Reply 7, ECF No. 49.

What Defendants dispute in the pending Motion to Dismiss is whether Plaintiffs' Enumeration Clause claim is properly before this Court and, if so, whether they have stated a claim. Defendants argue that Plaintiffs' claim is not ripe, they lack standing to bring this litigation, the political question doctrine bars this suit, and they have not stated a claim under the Enumeration Clause. Defs.' Mot., ECF No. 43.⁶ Certainly, this suit is not the first challenge to the Bureau's plans for the 2020 Census, as other citizens and citizen groups repeatedly have sued the Department of Commerce and its Secretary, Wilbur Ross, regarding the planned 2020 reintroduction of a citizenship question to the census questionnaire. See LUPE, 2018 WL 5885528; Kravitz v. U.S. Dep't of Commerce, 336 F. Supp. 3d 545 (D. Md. 2018); California v. Ross & City of San Jose v. Ross, Nos. 18-1865-RS & 18-2279-RS (N.D. Cal. Aug. 17, 2018) (slip op.), ECF No. 47-1; New York v. U.S. Dep't of Commerce, 315 F. Supp. 3d 766 (S.D.N.Y. 2018). And, similar challenges by the defendants to the plaintiffs' claims in these other lawsuits have not

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succeeded, with this Court and two other federal district courts concluding that the plaintiffs had standing, presented claims that were not barred as political questions, and asserted claims that were adequately pleaded.⁷ Further, at least one group has achieved a favorable judgment following a bench trial. See New York v. U.S. Dep't of Commerce, Nos. 18-2921 (JMF) & 18-5025 (JMF), --- F. Supp. 3d ----, 2019 WL 190285, at *3-4, *88-90, *123 (S.D.N.Y. Jan. 15, 2019) (holding that "most, if not all, of Plaintiffs ha[d] standing to bring their claims" because they "proved by a preponderance of the evidence that they w[ould] be harmed in various ways as a result of the addition of a citizenship question on the census and that a favorable ruling will redress those harms"; claim was ripe;⁸ and inclusion of citizenship question violated Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq.; enjoining defendants from adding citizenship question to 2020 Census without first completing preliminary steps).

Yet this case is distinctly different from the other litigation to date leading up to the 2020 Census, as it does not challenge a discrete agency decision and does not include a claim under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. Indeed, unlike almost all, if not

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the entirety, of the robust body of litigation surrounding past censuses, this case challenges agency action before the Bureau has finalized its preparations for the 2020 Census. And, as relief, the Plaintiffs request nothing short of this Court injecting itself directly into the final planning of the Census to superintend the process.

The crux of this suit is Plaintiffs' belief that the Bureau should have done more to prepare for the 2020 Census than it has at this time. But, ripeness bars Plaintiffs' claim for injunctive relief with respect to the method and means of conducting the 2020 Census, at least at this time. The claim will be dismissed without prejudice to being reinstated at a later time. But, Plaintiffs' claim that there are insufficient funds available for the Bureau to conduct the 2020 Census, which, they allege, also will result in an Enumeration Clause violation, may be ripe for declaratory relief (assuming an evidentiary basis exists to support their allegations). And, it is plausible that this Court could fashion declaratory relief that would make it likely that sufficient funds will be appropriated to enable the final planning and execution of the 2020 Census to take place. Therefore, I find that Plaintiffs have standing, and I will deny Defendants' Motion to Dismiss as to their insufficient-funding claim for declaratory relief. This claim will proceed, and targeted discovery will be permitted to determine whether there is an evidentiary basis for the declaratory relief they seek.

Background Why the Census Is Conducted

When the United States Constitution was drafted in 1787, the Framers "believed the correct apportionment of political power would be the 'fundamental ... instrument' of this republican government." Robert R. McCoy, A Battle on Two Fronts: A Critique of Recent Supreme Court Jurisprudence Establishing the Intent and Meaning of the Constitution's Actual Enumeration

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Clause, 13 Cornell J.L. & Pub. Pol'y 637, 655 (2004). Thus, the "constitutional goal" was "equal representation" (although, as noted, "equal representation" did not account for slaves). Franklin v. Massachusetts, 505 U.S. 788, 804 (1992). The Framers vigorously debated the representation the States should have in the federal legislature. See Sincock v. Duffy, 215 F. Supp. 169, 186 (D. Del. 1963) (noting that "[t]he Constitutional Convention was...