State v. Ross

• Decision Date: 17 August 2018
• Docket Number: Case No. 18-cv-01865-RS;, Case No. 18-cv-2279-RS
• Citation: 362 F.Supp.3d 727
• Parties: State of CALIFORNIA, et al., Plaintiffs, v. Wilbur ROSS, et al., Defendants. City of San Jose, et al., Plaintiffs, v. Wilbur Ross, et al., Defendants.
• Court: U.S. District Court — Northern District of California

362 F.Supp.3d 727

State of CALIFORNIA, et al., Plaintiffs,

v.Wilbur ROSS, et al., Defendants.

City of San Jose, et al., Plaintiffs,

v.Wilbur Ross, et al., Defendants.

Case No. 18-cv-01865-RS;

Case No. 18-cv-2279-RS

United States District Court, N.D. California.

Signed August 17, 2018

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, 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 Plaintiff.

Carlotta Porter Wells, Carol Federighi, Kate Bailey, Stephen Ehrlich, Brett A. Shumate, Marsha S. Edney, Martin Tomlinson, US Department of Justice, Washington, DC, for Defendant.

ORDER DENYING MOTIONS TO DISMISS

RICHARD SEEBORG, United States District Judge

I. INTRODUCTION

This action arises out of a decision by the U.S. Census Bureau, a division of the U.S. Department of Commerce, to include a question regarding citizenship status on the 2020 decennial census questionnaire. The census surveys the number of persons in each household and in so doing, collects certain demographic information about those persons. While questions relating to citizenship have historically been part of the census process, not since 1950 has the decennial census asked whether each respondent is a citizen of the United States. Plaintiffs in these two related cases contend the decision to deviate from modern practice violates both the Constitution and the Administrative Procedure Act ("APA"). Plaintiffs in 18-cv-1865 are the State of California, by and through Attorney General Xavier Becerra, County of Los Angeles, City of Los Angeles, City of Fremont, City of Long Beach, City of Oakland, City of Stockton, and Los Angeles Unified School District.¹ Plaintiffs in 18-cv-2279 are City of San Jose and Black Alliance for Just Immigration ("BAJI"). Plaintiffs in each of the complaints in general contend that the inclusion of a citizenship question operates by design to depress an accurate count of certain immigrant communities residing in the United States. Defendants in both matters are Wilbur Ross, in his official capacity as Secretary of the U.S. Department of Commerce; the U.S. Department of Commerce; Ron Jarmin, in his official capacity as Acting Director of the U.S. Census Bureau; and the U.S. Census Bureau.

Defendants move to dismiss all claims asserted against them. For the reasons set forth below, the motions to dismiss are denied in their entirety. First, plaintiffs have standing to challenge the decision by Secretary Ross to add a citizenship question to the 2020 Census. Second, that decision is not insulated from judicial review as defendants insist. Third, assuming, as is required at the pleading stage, that all facts asserted in the operative complaints are true, plaintiffs have stated claims for relief under both the Enumeration Clause of the Constitution and the APA.²

II. BACKGROUND³

The U.S. Constitution provides for an "actual Enumeration" of the population once every decade to count "the whole number of persons" in each state. U.S. Const. Art. I, § 2, cl. 3, and Amend. XIV, § 2. All residents of a state are to be counted, regardless of citizenship status. Fed'n for Am. Immigration Reform (FAIR) v. Klutznick , 486 F.Supp. 564, 567 (D.D.C. 1980). The purpose of the "actual Enumeration" is to guide the apportionment of congressional seats among the states based on their respective populations. Art. 1, § 2, cl. 3. The federal government also relies on census data to determine how to distribute billions of dollars in funding each year, including funds for Medicaid, Medicare Part B, the Supplemental Nutrition Assistance Program ("SNAP"), the State Children's Health Insurance Program ("S-CHIP"), and the Highway Planning and Construction Program. State of California's First Amended Complaint ("FAC") ¶ 7; City of San Jose's Complaint ("San Jose Compl.") ¶¶ 33, 85.

Under the Census Act, 13 U.S.C. §§ 1 et seq. (the "Act"), Congress delegated its constitutional duty to conduct the decennial census to the Secretary of Commerce and the U.S. Census Bureau, a federal statistical agency within the Department of Commerce. 13 U.S.C. §§ 2, 4, 141(a). Under section 141(f), the Commerce Secretary must submit to Congress a final list of subjects to be covered in the census questionnaire at least three years before the census date, and must submit a final list of specific questions two years before the census date. 13 U.S.C. §§ 141(f)(1)-(2). Once these reports are submitted, the Secretary has limited discretion to alter their content and may do so only if "new circumstances exist which necessitate that the subjects, types of information, or questions contained in reports so submitted be modified." 13 U.S.C. § 141(f)(3).

Several federal laws govern the specific manner in which the census is to be developed and conducted. For example, the Paperwork Reduction Act of 1995 ("PRA") directs the Office of Management and Budget ("OMB") to issue "[g]overnment-wide policies, principles, standards, and guidelines" governing "statistical collection procedures and methods" which the Bureau is required to follow. See id. §§ 3504(e)(3)(A), 3506(e)(4); 5 C.F.R. § 1320.18(c). The Information Quality Act and OMB-issued Statistical Policy Directives set standards for survey content development that guide the Bureau's activities. San Jose Compl. ¶¶ 39, 40. The Bureau itself has issued Statistical Quality Standards applicable to "all information products released by the Bureau and the activities that generate those products"—including the decennial census. San Jose Compl. ¶ 39. These standards call for rigorous pretesting requirements to identify problems and refine data collection instruments before implementation. Id.

The development process of each decennial census takes several years, a period during which the Bureau conducts tests regarding the content, specific language, order, and layout of the census questionnaire to improve the accuracy of the enumeration. San Jose Compl. ¶ 39. None of the tests conducted in preparation for the 2020 Census included a citizenship question or gathered data on the impact of a citizenship question. Id. ¶¶ 43, 47-48; FAC ¶ 38. The March 2017 report submitted by defendants to Congress set out a list of planned subjects for the 2020 Census but did not include citizenship among the topics. San Jose Compl. ¶¶ 5, 37.

On December 12, 2017, DOJ submitted a letter to the Census Bureau "formally request[ing] that the Census Bureau reinstate on the 2020 Census questionnaire a question regarding citizenship." Letter from Arthur Gary, General Counsel, DOJ, to Ron Jarmin (Dec. 12, 2017) ("DOJ Letter"); see Administrative Record ("A.R.") at 663. DOJ stated the data was "critical" to the agency's ability to enforce the requirements of Section 2 of the Voting Rights Act ("VRA"), now codified at 52 U.S.C. § 10301. A.R. at 663. According to the DOJ, census-block-level data collected through the decennial census questionnaire would be more useful to the enforcement of the VRA than the census-block-group level data currently available through the American Community Survey ("ACS"), which is sent yearly to a sample of the population—about one in 38 households. Id. at 663-64.

On March 26, 2018, Secretary Ross issued a memorandum announcing the inclusion of a citizenship question on the 2020 Census questionnaire. Memorandum to Karen Dunn Kelley, Under Secretary for Economic Affairs, from the Sec'y of Commerce on Reinstatement of a Citizenship Question on the 2020 Decennial Census Questionnaire at 1 (Mar. 26, 2018), FAC ¶ 4; A.R. at 1313. The Secretary's stated justification was that the information was needed to provide DOJ with census-block-level data to assist in enforcing the VRA. A.R. at 1313. Based on a purported review of the Bureau's history of collecting citizenship information on the decennial census, the Secretary concluded that "the citizenship question has been well tested." Id. at 1314.

At the Secretary's request, the Census Bureau presented three alternatives for providing the data requested by DOJ: Option A called for continuing the status quo and providing DOJ with ACS citizenship data at the census-block-group level instead of the block level requested by DOJ; Option B provided for the placement of the ACS citizenship question on the decennial census; and Option C involved obtaining the requested information from existing federal administrative-record data. A.R. 1314-16. In his decision memo, the Secretary elected not to pursue Option A, as it would not provide data at the level requested by DOJ, even using sophisticated modeling methods. Id. at 1314-15. Instead, the Secretary chose to implement a fourth option, as a combination of Options B and C. Id. at 1316. Under this Option D, a citizenship question would be reinstated on the decennial census, while the Census Bureau enhanced its administrative record data sets, protocols, and statistical models to maximize its ability to match the decennial census responses to administrative records. Id. at 1316. This methodology would, the Secretary opined, provide DOJ with the most complete and accurate data. Id.

In arriving at his decision, Secretary Ross had before him the views of numerous stakeholders, many of whom expressed concern that addition of a citizenship question would negatively impact response rates and result in an undercount of the population. A.R. at 1313-14. In particular, the Chief Scientist and Associate Director of Research and Methodology at the Bureau, Dr. John M. Abowd, conducted analysis showing that addition of a citizenship question would have a negative effect on the accuracy and...