New York v. U.S. Dep't of Commerce

• Court: U.S. District Court — Southern District of New York
• Writing for the Court: JESSE M. FURMAN, United States District Judge
• Citation: New York v. U.S. Dep't of Commerce, 351 F. Supp. 3d 502 (S.D. N.Y. 2019)
• Decision Date: 15 January 2019
• Docket Number: 18-CV-5025 (JMF),18-CV-2921 (JMF)
• Parties: State of NEW YORK, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants. New York Immigration Coalition, et al., Plaintiffs, v. United States Department of Commerce, et al., Defendants.

351 F.Supp.3d 502

State of NEW YORK, et al., Plaintiffs,

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

New York Immigration Coalition, et al., Plaintiffs,

v.United States Department of Commerce, et al., Defendants.

18-CV-2921 (JMF)

18-CV-5025 (JMF)

United States District Court, S.D. New York.

Signed January 15, 2019

Sania Waheed Khan, Ajay Paul Saini, Danielle Fidler, Elena Stacy Goldstein, Elizabeth Morgan, Laura Jane Wood, Matthew Colangelo, Lourdes Maria Rosado, New York State Office of the Attorney General, David Eli Nachman, DLA Piper US LLP, Diane Omotayo Lucas, Kramer Levin Naftalis & Frankel, LLP, Brian Alexander de Haan, Allen & Overy, LLP, Tonya Jenerette, Corporation Counsel, Special Federal Litigation Division, Gail Phyllis Rubin, New York City Law Depart. Office of the Corporation Counsel, Sabita Lakshmi Krishnan, New York City Law Department, New York, NY, Scott J. Kaplan, Oregon Department of Justice, Portland, OR, Mark Francis Kohler, Connecticut Office of the Attorney General, Hartford, CT, David J. Lyons, Ilona Kirshon, Delaware Department of Justice, Wilmington, DE, Valerie M. Nannery, Robyn Renee Bender, Office of The Attorney General For The District of Columbia, Washington, DC, Matthew J. Martin, Office of The Illinois Attorney General, Andrew Worseck, Christie Starzec, Margaret Sobota, City of Chicago Law Department, Chicago, IL, Nathanael Blake, Office of the Iowa Attorney General, Des Moines, LA, John Robert Grimm, Maryland Office of the Attorney General, Baltimore, MD, Jonathan Benjamin Miller, Office of Attorney General, Boston, MA, Jacob Campion, Office of the Minnesota Attorney General, St. Paul, MN, Rachel Wainer Apter, New Jersey Office of the Attorney General Department of Law and Public Safety, Div. of Law, Trenton, NJ, Melissa Medoway, New Jersey Office of the Attorney General, Newark, NJ, Tania Maestas, NM Office of the Attorney General, Santa Fe, NM, Matthew Robert McGuire, Michelle Kallen, Office of the Attorney General, Richmond, VA, Benjamin Daniel Battles, Julio A. Thompson, State of Vermont Office of the Attorney General, Montpelier, VT, Laura Kristine Clinton, Washington State Attorney General, Gary T. Smith, Peter S. Holmes, Seattle City Attorney's Office, Seattle, WA, Benjamin H. Field, Eleanor Ewing, Michael Wu-Kung Pfautz, Michael Fischer, Pennsylvania Office of Attorney General, Philadelphia, PA, Jeffrey Dana, City of Providence Office of The City Solicitor, Adam Roach, Rhode Island Attorney General, Providence, RI, Dennis J. Herrera, Erin Lee Kuka, Mollie Mindes Lee, San Francisco City Attorney's Office, San Francisco, CA, John Daniel Reaves, John Daniel Reaves, Attorney, Ryan Young Park Boies, Schiller & Flexner LLP, Washington, DC, Yvonne S. Hilton, Matthew McHale, City of Pittsburgh Law Department, Pittsburgh, PA, Rolando L. Rios, Law Office of Rolando L. Rios, San Antonio, TX, Jacqueline Melmed, Governor's Office, State of Colorado, Denver, CO, Matthew Timothy Jerzyk, City of Central Falls, Central Falls, RI, Richard Coglianese, Alexandra Pickerill, Lara Baker-Morrish, Zachary M. Klein, City Attorney's Office, Columbus, OH, Ian R. Kaplan, Jo Anne Bernal, El Paso County Attorney, El Paso, TX, William Merrill Litt, County of Monterey, Salinas, CA, for Plaintiffs.

Brett Shumate, Carlotta Wells, Carol Federighi, Kate Bailey, Alice Shih LaCour, Garrett Joseph Coyle, Joshua E. Gardner, Martin M. Tomlinson, Stephen Ehrlich, DOJ-Civ, Washington, DC, Dominika Natalia Tarczynska, United States Attorney's Office Southern District of New York, New York, NY, for Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

JESSE M. FURMAN, United States District Judge:

TABLE OF CONTENTS

BACKGROUND

A. History and Purposes of the Census...519

B. The Secretary's Authority Over the Census...521

C. The History of a Citizenship Question on the Census...524

D. Testing and Adding New Questions to the Census...526

E. Secretary Ross's Decision and This Litigation...527

SECRETARY ROSS'S DECISION...530

A. The Initial Administrative Record Submission...530

1. The December 12, 2017 DOJ Letter...530

2. The Census Bureau's Preliminary Analyses and Recommendations...532

3. Secretary Ross's February 12, 2018 Meeting with the Census Bureau...536

4. The Census Bureau's Analysis of Alternative D...536

5. Communications with Stakeholders...539

6. Secretary Ross's March 26, 2018 Memorandum...542

7. Secretary Ross's Testimony Before Congress...545

B. The Supplemental Administrative Record and the Trial Record...547

1. Secretary Ross's Early Interest in Adding the Citizenship Question...549

2. Comstock's Search for a Rationale and an Agency to Request the Question...550

3. Secretary Ross and His Aides Persist in Their Efforts...552

4. Secretary Ross's Intervention with the Attorney General...554

5. AAAG Gore Ghostwrites the DOJ Letter...555

6. The Attorney General Forbids DOJ to Meet with the Census Bureau...557

7. Efforts to Downplay Deviations from the Census Bureau's Standard Processes...558

a. Secretary Ross's Claim that the Question Was Well Tested...560

b. The Commerce Department Revises the Census Bureau's Description of the "Well-Established Process" for "Adding or Changing Content on the Census"...562

c. Secretary Ross's Description of His Dealings with Nielsen...563

d. Comstock's Testimony About the Census Bureau's Analyses...565

8. The Genesis of the DOJ Letter Was Kept from the Census Bureau...566

9. Findings Regarding the Timing of, and Reasons for, Secretary Ross's Decision...567

STANDING...572

A. General Legal Standards...573

B. Findings of Fact Related to Standing...576

1. Background...577

2. The Citizenship Question Will Cause a Differential Decline in Self-Response Rates...578

3. NRFU Operations Will Not Cure the Differential Drop in Self-Response Rates...583

4. Effects of the Citizenship Question on Apportionment Among and Within States...5935. Effects of the Citizenship Question on Funding to, and Within, States...596

6. Effects of the Citizenship Question on the Quality and Accuracy of Census Data...599

7. Secretary Ross's Decision Has Caused Plaintiffs to Divert Resources...600

C. Conclusions of Law Related to Standing...604

1. Associational Standing...604

2. Injury in Fact...606

a. Diminished Political Representation...607

b. Loss of Government Funds...608

c. Harm to the Quality and Accuracy of Data...610

d. Diversion of Resources...615

e. Loss of Privacy...618

3. Traceability and Redressability...619

RIPENESS...625

ADMINISTRATIVE PROCEDURE ACT CLAIMS...628

A. General Legal Standards...628

B. The Scope of Review...630

C. Discussion...635

1. Secretary Ross's Decision Was Not in Accordance with Law...636

a. The Section 6 Violation...636

b. The Section 141(f) Violation...641

2. Secretary Ross's Decision Was Arbitrary and Capricious...647

a. Secretary Ross's Explanations Ran Counter to the Evidence Before the Agency...647

b. Secretary Ross Failed to Consider Several Important Aspects of the Problem...651

c. Secretary Ross Failed to Justify Departures from the OMB Guidelines and the Census Bureau's Standards and Practices...654

3. Secretary Ross's Rationale Was Pretextual...660

THE DUE PROCESS CLAUSE CLAIM...664

A. Applicable Legal Principles...665

B. The Scope of Review...667

C. Discussion...669

REMEDIES...671

A. General Legal Principles...671

B. Discussion...673

1. Vacatur and Remand...673

2. Injunctive Relief...675

3. Declaratory Relief...678

CONCLUSION...679

The Constitution provides that "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. amend. XIV, § 2. To that end, it mandates that an "actual Enumeration" be conducted "every ... ten Years, in such Manner as [Congress] shall by Law direct," an effort commonly known as the census (or, more precisely, the decennial census). Id. art. I, § 2, cl. 3. By its terms, therefore, the Constitution mandates that every ten years the federal government endeavor to count every single person residing in the United States, whether citizen or noncitizen, whether living here with legal status or without. The population count derived from that effort is used not only to apportion Representatives among the states, but also to draw political districts and allocate power within them. And it is used to allocate hundreds of billions of dollars in federal, state, and local funds. Given the stakes, the interest in an accurate count is immense. Even small deviations from an accurate count can have major implications for states, localities, and the people who live in them — indeed, for the country as a whole.

Since its inception in 1790, the decennial census also has been used for another purpose: to collect demographic data about the population of the United States, including information about respondents' race, sex, and age, and whether they own or rent their homes. Most relevant here, the government collected data about people's citizenship status from all households in the country in every census between 1820 and 1950 (with the exception of 1840). In 1960, however, the government stopped asking a citizenship question of every respondent, and for decades thereafter the official position of the Census Bureau was that reintroducing such a question was inadvisable because it would depress the count for already "hard-to-count" groups — particularly noncitizens and Hispanics — whose members would be less likely to participate in the census for fear that the data could be used against them or their loved ones. Every Secretary of Commerce (to whom Congress has long delegated significant authority over the census) adhered to that position — until early last year. On March 26, 2018, Secretary of Commerce Wilbur L. Ross, Jr. announced that he was reinstating the citizenship question on the 2020 census questionnaire, purportedly in response to a request from the Department of Justice ("DOJ") for better citizenship data to assist in its enforcement of Section 2 of the Voting Rights Act of 1965 ("VRA"). See 52 U.S.C. §...