State v. Ross

Citation358 F.Supp.3d 965
Decision Date06 March 2019
Docket NumberCase No. 18-cv-01865-RS,18-cv-02279-RS
Parties STATE of California, et al., Plaintiffs, v. Wilbur ROSS, et al., Defendants. City of San Jose, et al., Plaintiffs, v. Wilbur L. Ross, et al., Defendants.
CourtU.S. District Court — Northern District of California

358 F.Supp.3d 965

STATE of California, et al., Plaintiffs,
v.
Wilbur ROSS, et al., Defendants.


City of San Jose, et al., Plaintiffs,
v.
Wilbur L. Ross, et al., Defendants.

Case No. 18-cv-01865-RS
18-cv-02279-RS

United States District Court, N.D. California.

Signed March 6, 2019


358 F.Supp.3d 972

Gabrielle Downey Boutin, Noreen Patricia Skelly, R. Matthew Wise, Office of the Attorney General Department of Justice, Sacramento, CA, Margaret Louise Carter, Daniel R. Suvor, O'Melveny & Myers LLP, Valerie Louise Flores, Kathleen Alice Kenealy, City Attorney's Office for the City of Los Angeles, Todd Grabarsky, Los Angeles, CA, Anna Theresa Ferrari, California Department of Justice, Charles Lagrange Coleman, III, David Ilan Holtzman, Holland & Knight LLP, San Francisco, CA, Harvey Levine, City Attorney's Office for the City of Fremont, Fremont, CA, Michael John Mais, City Attorney's Office for the City of Long Beach, Long Beach, CA, Erin Brianna Bernstein, Maria Bee, Malia McPherson, Oakland City Attorney's Office, Oakland, CA, John Michael Luebberke, City Attorney's Office for the City of Stockton, Stockton, CA, for Plaintiffs (18-cv-01865).

Carlotta Porter Wells, Carol Federighi, Kate Bailey, Brett A. Shumate, Martin Tomlinson, Stephen Ehrlich, Marsha S. Edney, United States Department of Justice, Elizabeth B. Wydra, Constitutional Accountability Center, Washington, DC, for Defendants.

John Frederick Libby, Emil Petrossian, John W. McGuinness, Olufunmilayo O. Showole, Salvador E Perez, Manatt, Phelps and Phillips, LLP, Mark Dale Rosenbaum, Los Angeles, CA, Andrew Claude Case, Manatt, Phelps, and Phillips, New York, NY, Dorian Lawrence Spence, Pro Hac Vice, Ezra D. Rosenberg, Jon Greenbaum, Lawyers' Committee for Civil Rights Under Law, Washington, DC, Nora Valerie Frimann, Office of the City Attorney, City of San Jose, San Jose, CA, Ana G. Guardado, Manatt, Phelps & Phillips, LLP, San Francisco, CA, for Plaintiffs (18-cv-02279).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

RICHARD SEEBORG, United States District Judge

358 F.Supp.3d 973

TABLE OF CONTENTS

I. SUMMARY OF DECISION...973

II. BACKGROUND...976

III. STANDING...977

A. Legal Standard...977

B. Findings of Fact Related to Standing...977

C. Conclusions of Law Related to Standing...1002

1. Injury-in-Fact...1002

2. Traceability...1006

3. Redressability...1007

IV. APA CLAIM...1007

A. Legal Standard...1007

B. Scope of Review...1008

C. Findings of Fact Based Exclusively on the Administrative Record...1009

D. Findings of Fact Based on Extra-Record Evidence...1026

E. Conclusions of Law...1037

V. CONSTITUTIONAL CLAIMS...1046

A. Legal Standard...1046

B. Scope of Review...1047

C. Conclusions of Law...1048

VI. REMEDIES...1049

I. SUMMARY OF DECISION

The formal decision by Secretary of Commerce Wilbur L. Ross, Jr. on March 26, 2018 to add a citizenship question to the 2020 Decennial Census violated the Administrative Procedure Act ("APA") and the Enumeration Clause of the United States Constitution. Nearly a year before issuing that decision, on May 2, 2017, Secretary Ross sent an email to Deputy Chief of Staff Earl Comstock stating in part "I am mystified why nothing [has] been done in response to my months old request that we include the citizenship question. Why not?" What ensued was a cynical search to find some reason, any reason, or an agency request to justify that preordained result.

As to the APA, one need look no further than the Administrative Record1 to conclude

358 F.Supp.3d 974

that the decision to include the citizenship question was arbitrary and capricious, represented an abuse of discretion, and was otherwise not in accordance with law. In response to Secretary Ross's demand, Comstock began to search for an agency that would be willing to request the inclusion of the citizenship question in the 2020 Census. When initially approached by Comstock about the citizenship question, the Department of Justice ("DOJ") opted not to request its inclusion in the census. Comstock then reached out to the Department of Homeland Security, which similarly declined to request the addition of the question. Only after Secretary Ross personally interceded with then Attorney General Jeff Sessions did the DOJ switch its position and request the inclusion of a citizenship question, ostensibly to assist in the enforcement of Section 2 of the Voting Rights Act ("VRA").

Despite unrefuted evidence produced by the professional staff of the Census Bureau that inclusion of a citizenship question would likely result in a significant differential decline in self-response rates within noncitizen and Latino communities and that the requested data could be obtained by other means, Secretary Ross insisted upon adding the citizenship question to the census. When Census Bureau staff offered to meet with DOJ staff to ascertain if other available data could be used to meet their VRA enforcement needs, DOJ took the unprecedented step of refusing to allow even such an inter-agency meeting to take place.

These facts and other evidence contained in the Administrative Record, along with all reasonable inferences to be drawn therefrom, demonstrate that Secretary Ross's reliance on VRA enforcement to justify inclusion of the citizenship question was mere pretext and the definition of an arbitrary and capricious governmental act. Moreover, Secretary Ross's conclusion that adding the citizenship question would enable the Census Burau to obtain more "complete and accurate data" in response to the DOJ's request is not only unsupported, it is directly contradicted by the scientific analysis contained in the Administrative Record. PTX-26 at 1, 7. While it is of course appropriate for an incoming cabinet member to advocate for different policy directions, to solicit support for such views from other agencies, and to disagree with his or her professional staff, this record reflects a profoundly different scenario: an effort to concoct a rationale bearing no plausible relation to the real reason, whatever that may be, underlying the decision.

Again confining review solely to the Administrative Record, it is evident that the inclusion of the citizenship question on the 2020 Census violated both Sections 6(c) and 141(f)(3) of the 1976 Census Act. Section 6(c) mandates that, to the maximum extent possible, the Secretary use administrative records as opposed to additional census questions to obtain secondary data, such as demographic information. Section 141(f) mandates certain timely reports to Congress regarding the subject and questions to be included on the census and limits the Secretary's ability subsequently to modify the contents of the census absent new circumstances that necessitate a change. Quite simply, Secretary Ross ignored these statutory requirements in issuing his March 26, 2018 decision.

While finding a violation of the APA logically flows from the Administrative Record in this action alone, the facts here satisfy the requisite standard warranting consideration of extra-record evidence. Such evidence includes the absence of any

358 F.Supp.3d 975

effort to test the impact of the addition of the citizenship question to the census, the deviation from the Census Bureau's usual process for adding new questions to the census, the troubling circumstances under which the DOJ's request letter was drafted and procured, and Sessions' order prohibiting DOJ staff from meeting with Census Bureau officials to discuss alternative sources of data that could meet DOJ's VRA enforcement needs. Going beyond the Administrative Record, in short, confirms that the decision to include a citizenship question runs afoul of the APA.

The analysis of the Enumeration Clause claim similarly involves evidence beyond the four corners of the Administrative Record. As a general proposition, the decision to include a specific question on the census is committed to the discretion of the Commerce Secretary and does not implicate the constitutional command that all persons in each state be counted every ten years. However, if the Secretary's decision to include a question affirmatively interferes with the actual enumeration and fulfills no reasonable governmental purpose, it may form the basis for a cognizable Enumeration Clause challenge.

The evidence admitted in the trial of these actions demonstrates that a significant differential undercount, particularly impacting noncitizen and Latino communities, will result from the inclusion of a citizenship question on the 2020 Census, compounded by macro-environmental factors arising out of the national immigration debate. Efforts to ameliorate these effects through Non-Response Follow-Up ("NRFU"), the evidence showed, would not remediate and could in fact exacerbate the differential undercount of noncitizens and Latino persons. While a citizenship question had been included in the decennial census in 1950 and before, the analysis now must turn on the impact of that question on the prospect of achieving the central constitutional...

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