we'll hear argument this morning case eight hundred nine sixty six the department of commerce versus new york general francisco mr chief justice and may please the court in march two thousand and eighteen secretary ross reinstated citizenship question that has been asked this part of the census in one form or another for nearly two hundred years the district courts and validation of that decision was wrong i'm sorry it's not been a part of the survey which is where he reinstated hundred fifty and for sixty five years every secretary of the department of commerce every statistician including this secretary statistician recommended against adding the question so it may be that two hundred years of asking a citizenship question in other forms may be true but not on the short survey that's what's at issue lloyd but your honor it has been part of the census for the better part of two hundred years and usually as part of the overall census itself they'll want to haul the individuals don't we asked the question in context and for sixty five odd plus years everybody said don't add it  no your honor because in fact it was included in the long form census and that is they are different that's the whole issue it could have been can it still included or and could have been included in the a c s for which is still being done and that's being done in every first third and fifth year yes your honor but it has been part of the census in one form or another for a very long so the question no longer that or us the question therefore is two things first we think that the respondents claims are not just because their injuries aren't fairly attributable to the government are subject to a peer review and secondly the secretary acted well within his discretion when he determined that reinstating the citizenship question would provide the best evidence of citizenship only does that go back a bit to opening why anything and it was moved on to the american community survey that that was part of an overall movement of most of the demographic onto the long form census not the american community survey and that was part of a larger process that moved a large number of demographic questions off of the short form and on to the long form we no longer have a long form so then the question is do you reinstate the long form or do you in fact move it back under the short form a reason why it was dropped while they generally wanted to move all of the demographic questions on to the long form we no longer have a long form and the problems with using the american community survey are well known  thing what was sure your honor but that's because they thought that along with all of the other demographic questions in the census had an overall impact of an overall sense of sac you're seeing that underscores why we don't think this is really subject to judicial review because really what you're saying is that congress courts would have to review every question on the long form to determine if the informational value of the question outweighed the impact on sense of sacristy because at the end of the day if you had any particular question on to the census you're always trading off information and accuracy in one forty one day doesn't provide courts with a basis for evaluating that determination so that's why we think this isn't subject to a peer review at all but we also think that the respondents don't have standing here because they're injured if and only if first you have third party action secondly you have third party action that's illegal and third that third party action is based on speculation that the government will itself on the on the illegality is is that the predictive factor in other words do we as our cases have often said do not assume illegal behavior in establishing standing but is that simply predictive in other words we doubt people are going to engage a regular basis in illegal behavior and therefore we don't think their injury is is tangible or likely or is there something special about the fact that it's illegal activity well i think your honor in the court's past cases it has often been used as a predictive factor but i also think that when you put it all together breaks the chain of causation for article three causation per i mean it is true that if people go sixty miles an hour in a fifty five mile an hour a zone that's unlawful but you wouldn't say that they're not going to do that informing public policy we're considering stand i agree your honor and that's not our argument here i think that clapper is a good analogy and clapper it was quite clear that the plaintiffs in that case suffered an injury in fact because they declined to use their cell phones to communicate with their clients and their clients declined to use their cell phones to communicate with them out of a fear that their phone calls would be intercepted no question that there was an injury in fact but what the court held was that that injury was unfairly attributable to the government because it was caused by the plaintiffs i'm sorry here the government would intercept their calls you're talking proximate cause which we've never use no you're  most determinant or coercive effect in wayfair one of the reasons we found the stores not the states to be injured is because consumers fail p had standing even though it was their members who would be injured by other people and illegality harassment but as the just as chief justice roberts said it's predictable there is no doubt that people will respond the less because of the census that has been proven in study after study one census survey or describe an incident where he walked into a home started asking citizenship and the person stopped and left his home leaving the census survey or sitting there so if you're talking about prediction this is about one hundred percent that people will answer less so but i don't know what but it's pretty prediction it's an action by the government will will be a cause of this not proximate necessarily put that clause will close far right to responses yonder first we're not talking about proximate cause we're talking about an analysis that was similar to what this court used in the clapper case where the clapper said that even though there was injury in fact even though the government's actions were in a very real sense but for cause of that injury in fact it wasn't fair to attribute that to the government because it was based on the plaintiff's speculation that the government would intercept their tell that this is not  p was being directly regulated by the statute that they were challenging they were forced to disclose their private membership lists and that was their injury there was nobody that stood in between them and the disclosure of their private in from private membership lists but turning to the agency review ability argument there really is nothing in one forty one a that provides courts with a basis to review this decision the language is quite similar to what the court addressed in webster every the addition of any particular demographic question is always going to be a trade off between information and accuracy and i did in to look to the two thousand long form census that had highly detailed questions about not just citizenship but things like your commuting time how many bedrooms you had in your house whether you suffered from certain health conditions under respondents position courts would have to review each one of those questions to determine whether the informational value of that question outweighed any potential impact on in the main form or in the main form suppose the secretary put in a question about sexual orientation supposed to put to test in about arrest record suppose he says i'm going to have the whole survey in french you know the words we have no role to play no matter how extreme your honor you certainly do have a role to borrowing that's that and i think your example is question that's the question and in this case there is a statute and the statute says that the secretary at least on this form the main form he shall use it ministry of records unless you want says to the maximum extent possible don't ask direct questions use administered records because they want to keep it short right to the maximum extent possible so i have two rather technical questions and what i think is the heart of this case it's a technical case or the first question is the secretary i gather from the record and we've looked at it in my office pretty carefully is told by the census bureau in three studies that if you ask this question on the regular form you will get back fewer answers and they extrapolate to do that from the the other surveys and so forth and those extrapolations can you know holding for everything constant showed that the non citizens often didn't say they were  some didn't return it at all no i haven't seen any evidence to the contrary so i'm asking you where the evidence is on that show and as to the second same question the second is several surveys including doctor about told the secretary mr secretary if you add the question to the census the short form the director for you will discover that even the information you want about citizenship is worse than if you just look at the administrative record and how can that be sure well  they say thirteen million people it'll be a wash because you won't get information either way they won't return it you don't have it over in the administrative part but as to twenty two million which you highlight in your brief you know what about them and  as to them what dr a ballad says he says and i saw it in the record he says as to those twenty two million i'll tell you what you just look to the census returns and you're going to find it not that accurate because some are not going to tell the truth right so good look at the administrative returns they will be there but will model them now the question is which is more accurate as to citizenship sure the models over here on the administrative part or the answer to the questions on the census part and here's what dr about says twenty two million if you follow your practice you'd use a survey response not model it is that right that's right in your opinion that would be less accurate than if you just went with modeling over on the administrative part that's correct and the conclusion of the census bureau remains that adding the question over here even if you use the administered port to produce is worse citizen worse data one citizenship then just using the administrative data  sequestered answer from the expert that's correct so i read that and it's you know the judges below have listed fourteen other examples or forty other examples of many other examples and but that's the most direct so way here in the decision member did the secretary address that problem so sure your honor no problems you have to guess and i'd like to address that evidentiary issue first and then i would like to come back to your question about section sixty of the statute as well if you look at the joint appendix page one forty eight the cost of the census bureau staff specifically told the secretary and here i'm quoting from it that it quote cannot quantify the relative magnitude of the errors across alternatives and he's talking about alternatives c and d at this time so what he was saying was that i don't know if the response error from asking the question is going to be more or less than the prediction or if you said just what you said he said i cannot quantify it and that means he can't put scientific numbers of course they said that they wanted two years to test it but they can't quantify it but we do have three studies and those studies look at what happened when you asked this question before and what happened when you asked this question before right is the response rate fell and so if i could complete my answer what the bureau staff told him was that they didn't know which one would be better or worse so what the secretary  could if you don't mind maybe you could complete your answer sure that is specifically your honor at page one forty eight of the joint appendix where it specifically says and explains that it cannot quantify the relative magnitude of the errors across the alternatives alternative c n d at this time because it didn't know if the response errors from asking the question would be more or less than the prediction errors from the model so what the secretary knew was i'm basing are going see they have prediction models administrative records d was the secretary's idea of adding the question to the survey plus administrative measures and on the prediction models which is what scientists c are i'm comparing this type of fare to that type of error and what they compare each other to you can't do that to a scientific certainty but you can have predictive models which is what they did and they like showed you time and again they told you you add the survey question it's going to be less accurate than just relying on administrative records so how do you how do you take or pluck out of what they say in one sentence if you're the secretary and rely on that one sentence and ignore the wealth of statistics graphs testimony proof control studies of how these response rates came about and decide that that one sentence no to justify ignoring everything else because your honor i respectfully disagree with your reading of the administrative record if you read through the key difference in his memo what the bureau staff is telling to secretary  there's no question that the bureau staff preferred not to have this question on the census but what they were telling the secretary was that they couldn't tell which model would be more or less accurate but they did give him specific information when they told him that please finish they told him that if he actually asked the question for a third for twenty two point two million people for whom no administrative records existed he would have got actual answers that ninety eight percent accuracy and that the alternative their preferred alternative was to use a statistical model to estimate citizenship not just for the twenty two point two million but there for thirty five million but they had not yet constructed that model and didn't know what the error rate in that model would be but i i mean ninety eight percent sounds awfully heart high but it's kind of irrelevant to the question is whether if you used the model it would be greater than ninety eight percent it would be ninety nine point five percent right because then the secretary would have no basis for saying that you should use the question rather than the model and as to that as i think my colleagues are suggesting there is a bottom line conclusion from the census bureau and the bottom line conclusion is that alternative which is the proposal that the secretary of entropy took would still have all the negative cost and quality implications of alternative b which was simply adding the question alone and would result in poorer quality citizenship data than alternative c which is just using the administrative records plus the modeling so there is a bottom line conclusion from the census bureau and it seems as though what the secretary needs is some i mean i said terry can deviate from his expert's recommendations and from his experts bottom line conclusions right but the secretary needs reasons to do that and i searched the record and i don't see any reason sure and your honor so i want to just finish what i was saying instantly before because i think it responds to your question and i'd like to expand directly in response to your question what the secretary concluded was in the face of uncertainty he'd rather go with the burden to hand and ask the question at ninety percent accuracy than an unknown untested statistical model and that's after all the same preference that the union ration clause itself makes a preparation preference for actual counting over estimation because statistical model that will produce more accurate bottom line results and and again this bottom line conclusion is the same they know what kind of statistical models they can build and this is the bottom line conclusion and where is the reason that the secretary gives as to why he rejects that so there are a couple of reasons your honor first of all although they had a high confidence that they could create a good statistical model they were not able to tell him that they thought that that model would be any better or worse than estimation they never were able to say that would it would beat that ninety eight percent number so in the face of that uncertainty and i think what i read to you is them saying that they could be that i know you're i don't number that's what they're saying there i think what they're seeing there is that if you ask the citizenship question it will make the model a little bit less accurate because you're going to have fewer people for whom their administrative records but you actually have to use that model for a much smaller number of people because you have actual answers from twenty two point two million that ninety eight percent accuracy so that's what they're saying but what they couldn't come down with a conclusion on is whether it would be more or less accurate when us didn't request a model so can i just as you answer this question right i am trying to go back to my question to write down the pages i'm not going to you know resolve this right now so when justice kagan do you mention page one forty eight in so far in answer to her question or to mine if you could give me a few things to read to show that he did consider it to show that he did give a reason for rejecting it that would be helpful to me sorry go back to so you honor if you look at secretary rice's decision memo the decision memo in the petitioners appendix i would look to a couple of things first of all i would look to his discussion on pages five fifty five  a with the problems with administrative records the bureau is still evolving its use of administrative records and the bureau does not yet have complete administrative records data set for the entire population and that points out why he preferred asking the question and getting actual answers from twenty two point two million people at ninety eight percent accuracy because you simply didn't have administrative records for thirty five million people in the bureau had not yet figured out how to do that estimation he then goes on to say on that same page more than ten percent of the american population some twenty five million voting age people would need to have their citizen age imputed by the census bureau and so he was making clear that he'd rather go with actual counting than imputation and he pointed out that by proceeding with his preferred course this is a page five fifty six a of the petitioners appendix this may eliminate the need for the census bureau to have to impute an answer for millions of people specifically about twenty two point two million people for whom the bureau told him he would get actual answer to think about those statements i mean that's just conclusory it's just like well this would eliminate the need for modeling because we could ask a question but the question is why is asking a question better when you know that asking a question is going to result in lots of non responses and in lots of false reporting and so you can't just go back to i'd rather ask a question you have to say why you'd rather ask a question and what benefits it has to ask a question and if i may say i'll just finish here general i mean a lot of your argument your briefs are extremely well done but a lot of your argument just do not appear in the secretary's decision memo and and the fact that s g lawyers can come up with sixty pages of explanation for a decision that's all post hoc rationalization the question is what did the secretary say where did he say it when did he say it what does it mean other than just sit and we're inclusions you're on i'm tempted to pocket the compliment and sit down but i won't do that i think the secretary fully acknowledge that there was an upside to the question the upsizing was the one the department of justice set forth in his letter that having citizenship data would help improve voting rights act and force me he fully understood there was an alternative using administrative records and he analyzed that alternative in the language that i just read to justice pryor and he understood there was a downside that adding the citizenship question would potentially increase off response or decrease or increase the number of the decrease the number of self response rates but he found two things with respect to that first he found in all this is in his letter that he could mitigate that to at least a certain extent with follow up operations pernot perhaps not entirely but at least to a certain extent and secondly to the extent that materialized it was the product of illegal activity so we considered the benefits he considered the alternatives he considered the age population receive that right now everything for c vapid comes from the census with the exception of citizenship so population age race all of that comes from the census except for citizenship to se so a large amount of voting rights litigation focuses on expert witnesses who try to fill in that missing sea and try to estimate that missing to see through imputation based on the american community survey which goes to just one in thirty eight households and the department of justice wanted to get all of the same information from the same database so that critical feature of voting rights litigation see bap all came from the same plane as i did just how do we know that  couldn't do alternative c rely on the administrators records the one thing we do know is that the secretary went to the department went to the d o j at the beginning and asked them for help and that in the citizenship question they initially said no at least their lower level people said told them to shop  noble level but they're not the highest level say no and secretary of commerce speaks to the head of d o j at the time and the head of the d o j says we'll give you anything you need they do a letter the letter says the a c s is not enough what the letter doesn't say is ott if you supplement it with administrative records which six c lets you do and tells you you should do to maximise the extent possible that the actual count is accurate and we do know that there will be less people being reported which is the whole purpose of the survey how many people there are and nobody doubts that there will be less people report that's a maximum need of the census survey to report not citizenship let's not confuse the two things you numeration is how many people reside here not how many are citizens that's what the cens survey is supposed to figure out d o j needs citizenship but when the bureau asked d o j not the secretary to meet so they can discuss why the administrative records are not good enough they say we don't need to so tell me in that sequence how does the secretary kno sure so a couple of responses that your honor i'm going to start with the sixty issue because i know that was of interest to justice prior as well and under six c under my my friends on the other side's position you actually couldn't even ask the citizenship question on the american community survey and you also couldn't ask about sex and age on the census itself since all of that information is all also available in administrative records but the reason why administrative records are insufficient under sixty for any of these purposes for the simple reason that you don't have them for thirty five million people in terms of the department of justice is requests in the census bureau's alternative proposal that simply wasn't responsive to the part of justices request for two reasons first it ministry of records didn't solve the problem that the department of justice was trying to solve which was getting all of their c that data from the same source and covering the same time period it ministry of records come from a different database and cover a different time period than all the other information used to construct know they may have wanted something but sure they would then be introduced with one database that has been according to the chief statistician of the introducing multiple layers upon the certainty right uncertainty about or an undercount of people because they already say that undercounts going to be at a minimum five point  people are going to respond you're going to have a lesser number that are going to group with the administrative record you're going to have nine point five million the conflict between their answer and the administrative records and we have to change the bureau's use of that information to be able to use the administrative record and the secretary doesn't asked if we change that what else will it right so he doesn't know that and we now have error in the un reporting population of at least five hundred thousand so something the chief decision of the bureau tells us is unlike our simpler prior models this introduces more uncertainty at every single level of the calculus and so that data is going to be more suspect more prone to cross to less reliability and less accurate and so if the bureau if the department of justice refused to listen to that how can the secretary conclude that he's complying with six c fully because it says to the maximum extent possible and how can you be possible if you don't even ask why so this seems like he thought of something i want to add a citizenship question i don't know why but this is a solution in search of a problem i got to find a problem that fits what i want to do so your honor there's a whole lot in that question but i think i'll start with where you ended and if you really think sixty is a problem then we really cannot ask the citizenship question on the american community survey since that is just as subject to six c no what is this is what is says this to the maximum extent possible and here the secretary is using the administrative records to the maximum extent past the agency line of a survey he's combining them with administering the administrative records in the self responses and using administrative records where they are available using self responses at ninety eight percent accuracy probably ministry of records are not a problem is you can't confuse the survey which is really the question of sixty no the focus it's not simply applies to all sixty applies to the a c s and it applies to the census and sex and age information which we ask on the census is also available in ministry to records and the administrative records are more accurate with respect to sex and age because presumably your birth date and your sex don't change over the course of time where's your citizens that ship status does so if you really think that sixty is a problem we can't ask it on the c s and we can't pass sex an age on the census so that's why i think that is plainly wrong it really does boil down to whether the secretary is judgement here is a reasonable one in the for yes of two competing possibilities either asking the question getting answers for two thirds of the people for whom no would ministry to records existed at ninety percent accuracy or using an estimation model that had not yet been created and had an unknown error rate the secretary reasonably chose to go with it because human hand general just going back to justice kavanagh a simple question about why the secretary thought that there was a need for this in the part of what justice sotomayor was talking about was that it did really seem like the secretary was shopping for a need goes to the justice department justice department says we don't need anything goes to d h us t h s says they don't need anything goes back to the justice department makes it clear that he's going to put put in a call to the attorney general finally the justice department comes back to him and says ok we can give you what you want so you can't read this record without sensing that this this need is contrived one nobody had there been lots of assistant attorney general in the civil rights division that have never made a plea for this kind of data and and just the way this went back and forth i guess i'd like an answer to that simple sure question and i have two responses your honor and then if i may i'd like to reserve the remainder of my time from a bottle first i think it is quite common for cabinet secretaries to come into office with ideas and inclinations to discuss with their staff and is discussed with their park colleagues whether there is a legal and policy basis for that inclination secondly there is no evidence in this record that the secretary would have asked this question had the department of justice not requested it and there's no evidence in this record that the secretary didn't believe that the department of justice actually wanted this information to improve the voting  general underwood mr chief justice and may it please the court the secretary decided to add this question about citizenship to the twenty twenty census although the record before him contained an contradicted and strong evidence that it will cause a decline in the response rate of non citizens and hispanics to the detriment of the states and localities where they live he gave three reasons for the decision and none of them can survive a p a review one he said there was inadequate evidence of an effect on the response rate but that is flatly contrary to the record he said he could dismiss or discount any such effect because non response is an illegal act but that is an irrational and impermissible factor to consider on this question and he said that adding the question would help voting rights enforcement but that claim is unsupported by the record as well do you think it wouldn't help voting rights enforcement b c rap citizen voting age population is the critical element voting rights enforcement and this is getting citizen information well as we have just as has been discussed at length in the during the  previous argument that evidence before him was that it would not give better citizenship information than that it's the twenty two million that the government points to the twenty two million whose citizenship information will be either modeled for the result of the answer to a census question anything that the department would have been aided in past cases or cases on the drawing board and there was not and what i'd like to point out is that the comparison should be to using administrate of records the department of justice let ter taken at face value says the old a c s survey data that we've been using is inadequate and we need an improvement over that the census bureau produced this answer which is we can do this by linking the existing census information to administrative records the department of justice never commented on that apartment of justice actually declined to meet with the census bureau people who want meet about it so there was nothing before the secretary to say that this survey this census information would be an improvement and there was no comparison at all from the department of justice about whether this would be an improvement or not it seems to me that at least with so much question about whether this information would be better or worse than the u modeling from administrative records the secretary had an obligation to find out the answer to that question what if the answer was on certain well if the answer is uncertain then it is hard to invoke that as a reason now we get back to the cost in the enumeration that is if the if it's unclear we think it's worse but if it's just unclear whether this question will improve voting rights enforcement that is modeling there was a lot of talk during the first part of the argument about the i think it's twenty two point six million people who it when it is predicted would answer the citizenship question and as to home there  is not administrative data and there was an estimate that those answers would be ninety eight percent accurate and the comparison then has to be between that ninety eight percent predicted accuracy  rate and whatever the accuracy rate would be for the model and is there anything in the administrative record that shows that the model was tested and that it was possible to extract a a predicted error rate for a lot of what we have is that this model hadn't been generated what we have is the census bureau saying this is like other modeling that we routinely do we are confident that we can do it so if the secretary has to choose between two things and i'm one the secretary knows there's a ninety eight percent accuracy rate and asked of the other the census bureau says we're going to create a model and we don't know how we can give you any statistics but trust us it's going to be more accurate than ninety eight percent is arbitrary and capricious for the secretary to say i'll go with the ninety eight percent because that's a known quantity if there were no cost to the enumeration that would be a different question but when there is this much testimony where he unequivocal he says three times that in in not ninety eight percent of in respect to those people who are not citizens the administrative model will be more accurate than just asking the census question and if you add the census question that you look to it for the answer you will discover that you are less accurate in respect to non citizens now he says that that's why i asked the solicitor general what is there contrary to that and he gave me things to look at and i would say the most concrete thing which i want to ask you about is d at the trial said quote there is no credible quantitative evidence that the addition of a citizenship question will affect the accuracy of the count that's what he said now i'm sure in their reply brief they pointed right to that we can't simply ignore it and so i want to hear what your interest to that which the government says is contrary  if you look at that testimony in context it is perfectly clear that what he is saying is that he didn't have enough evidence for a firm quantitative statement meeting scientific standards he actually defined the term credible quantitative evidence and if you'll bear with me he said it's evidence that is specifically related to the insertion of a citizenship question into the otherwise planned tw that identifies the citizenship question itself as the likelier one of the causal elements associated with changes in the outcomes and that would stand up to extensive peer review within the census bureau and with the scientific community available yes that's right he said he didn't have enough to quantify a chord in accordance with peer reviewed standards he didn't say that there would be no effect he said i don't have enough to give what i what i believe as a scientist to be this term credible quantitative to make a credible quantitative eviden finish and my point is that at the same trial if we're going to look at the trial testimony at the same trial other experts said maybe so but there is enough evidence to make a different kind of judgment not us firm scientific quantified judgment but a judgment you think it's proper to look at the trial record on this issue there's a lot of citation in the respondents brief to trial testimony are we reviewing the administrative record we by the modeling then by the census i think it is sufficient for this purpose to treat it as somewhat uncertain because it is uncertainty with respect to the discretionary part of what the census bureau does namely collect extra information the core function of the census not of the census bureau in all its actions but of on the census for the united nations recommends that countries haskell's citizenship question on the cens and a number of other countries do it spain germany canada australia ireland mexico asked the citizenship question and the united states is asked a citizenship question as you know in one form or another since eight hundred twenty excluding eight hundred forty and again long former times in more recent times and then on the sense two thousand and five question is does that international practice that u n recommendation that historical practice in the united states fact how we should look at the clues into the citizenship question in this case the same guidance from the u n also says to be careful to test questions to make sure they don't interfere with the enumeration it says you need to make a judgment in context it may be that those countries either haven't examined or don't have the problem that has been identified the problem of depressing the enumeration that the united states has it's certainly something to look at but do you agree it's very it's a very common question internationally well it is certainly useful information for a country to have and i have not suggested at all that that information shouldn't be collected the question is whether it should be collected on the very instrument that is whose principal function is to help the population when we have such strong evidence that it will depress that make it less accurate and make it less accurate the principle in a purpose you're you're right the principle purpose is to count the population but we've had demographic questions on the census i don't know how far back but certainly it's quite common that's that's correct but we have no evidence that about age things like that you go back and it looks you know do you do you own your house do you own a radio i mean the questions go quite beyond how many people there are well i'd like to say two things about that we have no comparable evidence about any of those other questions that they depress the count stance away and in this disproportionate a way because as this court said in wisconsin distributive accuracy is even more important their response rate is very important so can i ask you a question about that a lot of your argument and a lot of the district court's argument seems to hinge on this prediction that there will be five point one percent few ok they're somewhat less likely to respond to the a c s than are the f c s in one study and the long form in another ok but what jumps out is the fact that citizens and non citizens differ in a lot of respects other than citizenship they differ in socio economic status they differ in education they differ in language ability so i don't think you have to be much of a statistician to wonder about the legitimacy of concluding that there's going to be a five point one percent lower response rate because of this one factor but maybe there's something more there so what what does that analysis miss the strong well couple of things the strong empirical evidence that is the basis for that judgment which by the way has not been contested by the government has other things to say but does not contest this census and the a c s and in two thousand it was to compare the short form and the long form census comparable comparison in each case the longer one had a citizenship question on it in each case everyone population groups notwithstanding there was a decline from the short form to the long form but there was a much greater decline among hispanics and non citizens council is that peace and justice alito have a point to the extent that there could be multiple reasons why individuals don't complete the form of eleven plenty of interrupting but we don't have any you lights on and i really want to get it to you know i'm sorry we haven't gotten there and that is what we do also and it's totally different so i'm really sorry what do we do with the fact that as i understand it some of the respondents and other people have complained when when folks have relied on the a c s to extrapolate citizenship for purposes of redistricting and in fact argued that we should rely only on actual sense of state and i understand response of may that are get in litigation so what would we do that there are a lot of complaints about the a c s the census bureau's proposal to use ministry of records solve most of them it's not a question of just that a c s which is a survey about which they have been many complaints and putting that question on the census the census bureau is they are data experts there are many ways of trying to other democratic variables like sex birthday yes age race ethnicity so i thought but that was an effort to control for the things the justice alito mentioned in so far as their role in it was that the only limitation on it was that they had to deal with data that already existed dr a bad wanted to do a random controlled test of this question and wasn't permitted to do so and that's my best answer that's a different issue isn't it what just as prior mentions it's it's the decline in the response rate based on those variables but not it doesn't it doesn't as just discourse it says does aggregate the many factors that could explain cats and and so if in fact there are some factors that are relevant which were not in the data because they only controlled for six other factors instead of six hundred i would expect somewhere in this record someone to have written that there were these other factors that also should have been controlled for i know what you're going to say unless i'm wrong you better not tell me that i am right if i'm not i could not find any such place in the record nobody proposed that i know of proposed factors that might be alternative explanations that should have that other or there are other questions on the census for which the administrative records provide more accurate information there is nothing in the record about to and so some judgments can be made and the judgment might be made that the a c s or some questionnaire that doesn't involve harm to the account that is sampling war or some other form of less less than universal questioning that testing questions that kind of instrument is the way to do it and i thank you general mr home mr chief justice it may please the court the secretary's decision rested primarily on want to certain that it would improve the accuracy of citizenship data provided to the department of justice but the administrative record revealed precisely the opposite that it would make that data less accurate and thus harm the secretary stated purpose of voting rights act and force met and the secretary's explanation for his decision misstated the evidence in the record in three critical respects first the secretary asserted that adding the question would maximize the census bureau's ability to use administrative records on citizenship but the government has conceded that that was not true at page thirty two of their brief acknowledge that if the question is added the number of people who can be matched to these administrative records the most accurate information that we have on citizenship will fall by one million second the secretary asserted that adding the question would improve the bureau's imputation of citizenship for people who lack of the for people for whom the government lacks any such records but the government has conceded that that was not true either at page thirty four of their opening brief they acknowledge that the census bureau determined that if the question is added the imputation process will become less accurate and here's why the accuracy of imputation depends upon the accuracy of existing data federal administrative records are based on a person's legal documents of their citizenship and thus are quite accurate and reliable for this purpose but the citizenship question is not the evidence shows that non citizens respond to the question in accurately one third of the time so if the question is used the data that's used for imputation will be contaminated by those in correct responses making the output of the imputation process less accurate making the data less accurate and again harming the secretary the stated purpose of improving the accuracy of citizenship information the secretary misstated the evidence in a third respect he asserted that adding the question would fill in the gaps in twenty two  million for twenty two million people in administrative records on citizenship but the census bureau concluded specifically on the last page of their march first memo in the administrative record but the secretary's decision will not solve that problem and the reason is again because responses to the question are highly inaccurate whereas the imputation process based solely on and on administrative records would be more accurate that's reflected in the census bureau's bottom line conclusion in its march first memo and it's reflected in the testimony of dr a ballad of the metals back does it not if i'm following your argument to the twenty two point six million people who will answer the citizenship question as to whom there are and administrative records that's what you're talking about yes justice alito ok and so then this is territory that we've we've covered but if the secretary is told here's the error rate that we can expect for those who answer the citizenship question and on the other hand we have this model and we can't tell you how accurate it is but trust us it's going to be that or is it arbitrary and capricious for the secretary to say i don't want to go with this model because i don't know what the accuracy of that is justice alito respectfully i think the census bureau said a little bit more than trust us but the census bureau said was we can develop a highly accurate model for this that's going to be better than getting the question wrong one third of the time now well they said in our opinion this would be better but they can't quantify it then they don't provide specific number they don't even provide a range and i read on the up and they do say that it would be more accurate than responses to the citizenship question which they do qualify as being incorrect one third of the time for non citizens and if i could yes it justice kavanagh's go ahead i'm sorry justice kavanagh's question earlier about whether or not that can help with the voting rights act in force meant it can't and here's why citizenship data matters in the voting or i'm sorry just what can't producer the secretary's question mr chief the secretary's decision mr chief justice and i thought you were talking about whether it's helpful with respect to the voting rights information that's right adding a citizenship question to the census i'm sorry is not helpful for voting rights act purposes because responses to the question are in accurate so frequently for non citizen citizenship matters in the voting rights act context when you're dealing with a population in which there is a large number of non citizens the requires the drawing of districts in which minority voters constitute a majority sometimes under some circumstances now under normal circumstances voting age population data will be sufficient for that purpose if citizenship rates are high but if the minority group has relatively low citizenship rates for example as is the case with hispanic populations in some circumstances then you need citizenship data to make sure that you're drawing a district in  which minority voters are in fact a majority of the population and data that's wrong one third of a tough time with respect to non citizens just doesn't help you drop districts whatever that granular block by block level when we talk about the block by block level one of the complaints we've heard from the other side is that the data that we rely on from a c s is it at too high a level and that the census goes down to a more granular level and in fact some of the states who are now responsible for us haven't litigation living in this court argued that a c s data should not be relied upon for purposes of citizenship for other purposes at the census data is more accurate when what do we do about that it seems to me like you kind of put the government a bit of a catch twenty two you say they shouldn't use the census except for in later litigation when they have to use the census just of course is let me say two things in response to that the first is that to the extent that more granular citizenship data were in fact necessary for voting rights act and for some purposes and we i think set forth a number of reasons in our brief way that's not in fact the case but just assuming that it is what we believe and we know states have argued this including some of the respondents before us so i'm i'm you know is the thing ok that's fair but what the census bureau recommended was that it could develop that block level data either with existing a c s data or using administrative records and that that would be in  best and most accurate way to do that in states that said previously that wasn't enough now are going in all future litigation to bind themselves to accept that it is enough well are you prepared to say that a justice course which we've never taken our clients have never taken that position whole bunch of states that say that in fact the breakoff rate because of that question at that question is something like zero point three six percent well so that it's very difficult to understand why that question would be the cause of people stopping history whereas another possible explanation that hasn't been explored as i understand it at least is the length of the form itself may deter those with less means and less time to fill them up just as simple as that and we don't know and when we do with the fact that we don't know just of course which the census bureau's conclusion was that the most likely explanation was the citizenship question the only difference in that comparative estimate was the presence of a non citizen in a household and citizenship is obviously the most salient question that goes to the difference between those two populations and the number on the break off rates for the internet a c s survey which i believe your honor was referring to they showed that hispanics were actually eight times as likely to break off in responding to the a c s upon encountering the citizenship question now by contrast there isn't a shred of evidence in the administrative record that suggests that this question will not have the effect of harming response rates  or will actually improve the citizenship data provided to the department of justice but if i could make one other point in response to your earlier question just discourse which adding to citizenship question doesn't even solve that granularity problem that you referenced and here's why because the census bureau can only produce estimates of citizenship at the block level the government has now conceded that on page eighteen of their reply brief which is quite remarkable because the government's rationale for asking this question has been to provide a full account of citizenship and because of the census bureau's disclosure avoidance protocols it actually can't do that at the block level it undermines the whole rationale for adding this question and the bureau's disclosure avoidance protocols it can only provide estimates of citizenship at the block level if i could let me explain why the statute requires the census bureau not to disclose information that could result in the identification of a person's census responses if you have a hundred people living on a block and the census bureau says well there are a hundred citizens there you will have necessarily identified all of their census responses so what the bureau does is it alters demographic totals for census blocks before publishing them that means that that data is an approximation it's an estimate just like the a c s data that the department of justice currently relies on and here's what's critical well this is this gets really really i'll pass that along to the chief justice i want to hit just a couple of points but one of the ones i want to hit right up front is something that the general underwood's said and i think there's some emphasis which is the remember that the the sense is that it we're talking about here is the descending all census provided for in the constitution of utmost importance to the house of representatives that provision obviously is t grounding for the statute that is being applied here and so anything that undermines the accuracy of the actual enumeration is immediately a problem so there's been a lot of discussion here quite properly because the way this case is been briefed about will this help the justice department of the voting rights act etc and that may be a very important point but it is  why the census bureau carries out an actual enumeration which goes through the apportionment of representatives among the states in the distribution within the states so if there is something that undermines the accuracy of that count even if it's important for other reasons that is both a statutory violation and therefore a violation of the miniature procedure act and a constitutional violation now this court does not have to reach a constitutional question because it is a statutory violation but do you think that any decrease in the actual count if you had any question beyond counting people and that decreases the actual kalpa to any degree than that additional question is improper just simply no i i'm sure the court will find there's a diminished exception there's no no doubt about that so where this court would draw that line i don't know what i can tell you and i'm sure you accomplishment of an actual enumeration and this discussion about the importance of voting rights data obviously does not very reasonable relationship to the accomplishment of an actual still that i'm sure you've this some thought but i know you have in terms of assessing what a reasonable relationship is what do we do with the history and the fact that this question has been on for what a long time was the only form in the census through almost all of our history and it continues to be asked today in the long form or the a c s it's not like this question or anybody in the room is who just of the question is improper to ask  some way shape or form and what do we do as well what with the evidence of practice around the world and virtually every english speaking country and a great many others besides ask this question in their census so i'm sure you've given consideration thought thoughtful consideration of those questions absolutely your honor although i can tell that you also have the first of all i don't know if the other countries that are listed for instance in the the un recommendations have an actual enumeration clause written into their constitution that is of paramount importance so i'm not sure that when the un made that recommendation that that matters for the united states second your honor the if the there are all the other factors that would undermine actual enumeration there is no evidence in the record here as the chief justice pointed out we're dealing with the record here it may be that some people find questions about gender now often civil maybe in the future that would be deemed offensive and that would undermine the accuracy of the of the actual mission we don't have any evidence on that what we do know your honour's you quite correctly pointed out we have a history of this but what we do know now is the experts right now say that this question if it is put on the  which remember is the only form right now for the action and ration that will cause that will make the undercount worse listen to the letter the congress has the primary control over what the census will be at the executive and congress has been alerted to this question for some time and it has done nothing about it  question your honor two responses one i think that this is a very ironic point for general francisco to be making he has said he is emphasizing his brief congress knows about this congress should do something the court can take judicial notice of this because it's in the public record the secretary of commerce has been called before congress to explain what he did here and assistant attorney general corps the the one you know about the the author of the the request by the just apartment has been called to congress they have been declining to answer they're not giving congress the information it requests because they say there's litigation going on repeat this is a matter of public record so it's ironic for general francisco to be saying this is for congress well if that's for congress obviously the house needs the information and yet we're being told we can't have the information because it's because it's only for you i thought all the information available as i understand it leads to only one answer and so why isn't that answer sufficient for them to take whatever action they consider appropriate the i'm sorry chief justice well i've been told there was no basis for the secretary up to make any decision other than the recommendation that was submitted to him by the bureau because that's the evidence that's the scientific evidence and so there's no room for the exercise of any discretion so what in from what more information does the congress need to address the problem we want to know what what you knew you decided otherwise why did you decide as we know his his his letter provides not in a memo provides not much information this the justices here today even asking these key questions so we want to know what made you do that what made you decide this was is just a political i thought justice ginsburg's question went more to why doesn't congress prohibit the asking of a citizenship question in the same way that congress has explicitly provided that no one can be compelled to provide for logistic information right and so that is something that congress could attempt to do yes and that is one of the things that would be would be asked about but as we know that doesn't stop this court from inter breeding the statute and the constitution as we know this court is the final one on the statute i one question which is you make a good first principles point about numeration being the purpose of the census but it turns out that the census as you know has been used for lots of other statistical and demographic collection purposes for out throughout our history so it's not just for a numeration in the statute that congress has passed gives huge discretion to the secretary how to fill out the form what to put on for all sorts of things that are very important remember the census be does things way beyond just the descending all census actual immigration but again this court was very clear and by the way the other thing is ge deferential yes and the question i think here is a policy judgment that it's more important to get accurate says and ship information even at the expense potentially of a slight decrease potentially in response rates and the question is given the statutes why is that judgment fall below the standard of reasonable ness in assessing the different policy considerations is our position is that one the justice department can get this information elsewhere you know but two you can't undermine the accuracy of the actual enumeration in order to get information for sorting so the constitutional i think of translating your argument means that anything that would undermine the enumeration is in permissible and unreasonable i believe so your honor and the only thing the only at addition i make to that is this is it just alito undoubtedly there's a on the disclosure avoidance protocols we discussed those that are reply brief at page seventeen the bottom line is that those protocols apply to all census data including on sex and age on race that the department of justice uses to control struck citizen voting age population it's never been a problem before there's no reason to think it'll be a problem now and i think that in fact i think in the trial record doctor about testified how it would not be a problem second i'd like to point your honour's to the key differences memo page one forty eight of the joint appendix the very the one full paragraph the first sentence says the relative quality of alternative c vs alternative d will depend on the relative importance of the errors in the administrative data that then goes through and discusses the various types of errors and its final conclusion is unfortunately the census bureau cannot quantify the relative magnitude of the errors across the alternatives third in terms of response rates the administrative record shows that the census bureau staff believed that there would be a five point one percent decrease in the initial response rates from adding the citizenship question but as secretary ross points out in his memorandum that doesn't take into account followup operations that's the response rate drop before follow up operations and it doesn't desegregate between those who are going to be put off by the citizenship question itself as opposed to those who are put off by the larger macro environment because they don't trust the government or don't like this particular administration and that i think is one of the reasons why dr about concluded in the testimony that justice pryor cited that quote there's no credible that the following process was at best riddled with a number of holes in adequacy his and that it wouldn't be adequate enough to take care of the shortfall but we can debate about whether it would be adequate enough but in order to say that the final response rate would drop by five point one percent you have to conclude that it's zero percent accurate and i don't think that there's any basis in the record to conclude inconsequential i think is that that is largely an impossible question to answer that is not built into the constitution itself there's always going to be a trade off the long form census for example caused a drop in self response rates for all of two to the short form by i believe around ten percent but my final point is one that mr letter alluded to and that is under that's why the short right your honor and honor my friends on the other side's position you are effectively empowering any group in the country to knock off any question on the census if they simply get together and boycott it there are many people in this country who might find the sex question objectionable because it limits individuals to a binary choice if a large number of people got together in one state and said we're going to boycott the rational or not that they don't have a legitimate fear not in the slightest your honor i am suggesting that the reso my friends theory on the other side is that it countenances precisely that type of coordinated behavior that would empower groups to knock off any question of the census that they found to be particularly objectionable mr chief justice unless the court has further questions were all done thank you thank you general the case is submitted