U.S. District Court California Northern District (San Jose) CIVIL DOCKET FOR CASE #: 5:20-cv-05169-LHK-RRC-EMC

State of California et al v. Trump et al Panel: Judge Lucy H. Koh
Judge Richard R. Clifton Judge Edward M. Chen Referred to: Judge Nathanael M. Cousins Relate Case Case: 5:20-cv-05167-LHK-RRC-EMC Cause: 05:702 Administrative Procedure Act

Date Filed: 07/28/2020 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff State of California

represented by Gabrielle Downey Boutin Office of the Attorney General Department of Justice 1300 I Street, Suite 125 Sacramento, CA 95814 (916) 210-6053 Fax: (916) 324-8835 Email: gabrielle.boutin@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

R. Matthew Wise Office of the Attorney General Department of Justice 1300 I Street, Suite 125 Sacramento, CA 95814 (916) 210-6046 Fax: (916) 324-8835 Email: Matthew.Wise@doj.ca.gov ATTORNEY TO BE NOTICED

Plaintiff Xavier Becerra

represented by Gabrielle Downey Boutin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

R. Matthew Wise (See above for address) ATTORNEY TO BE NOTICED

Plaintiff City of Los Angeles
Plaintiff City of Long Beach Plaintiff

represented by Valerie Louise Flores City Attorney's Office for the City of Los Angeles 200 North Main Street, 7th Floor, MS 140 Los Angeles, CA 90012 (213) 978-8149 Fax: (213) 978-8222 Email: valerie.flores@lacity.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen Alice Kenealy Los Angeles City Attorney's Office 200 N. Main Street City Hall East - Suite 800 Los Angeles, CA 90012 213-978-8354 Email: kathleen.kenealy@lacity.org ATTORNEY TO BE NOTICED
Michael Joseph Dundas Office of the Los Angeles City Attorney 200 N. Main Street City Hall East, Suite 800 Los Angeles, CA 90012 213-978-8100 Fax: 213-978-8211 Email: mike.dundas@lacity.org ATTORNEY TO BE NOTICED
represented by Monica J. Kilaita Long Beach City Attorney's Office 411 W. Ocean Blvd. 9th Floor Long Beach, CA 90802 562-570-2215 Email: monica.kilaita@longbeach.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

City Of Oakland
Plaintiff Los Angeles Unified School District
Plaintiff County of Los Angeles
V. Defendant

represented by Maria Bee Oakland City Attorney's Office One Frank H. Ogawa Plaza, 6th Fl. Oakland, CA 94612-1999 (510) 238-3814 Email: mbee@oaklandcityattorney.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sue Ann Salmon Evans Dannis Woliver Kelley 115 Pine Avenue Suite 500 Long Beach, CA 90803 562-366-8500 Fax: 562-366-8505 Email: sevans@DWKesq.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Keith Alexander Yeomans Dannis Woliver Kelley 115 Pine Avenue Suite 500 Long Beach, CA 90802 562-366-8500 Fax: 562-366-8505 Email: kyeomans@dwkesq.com ATTORNEY TO BE NOTICED
represented by David Ilan Holtzman Holland & Knight LLP 50 California Street, 28th Floor San Francisco, CA 94111 (415) 743-6900 Fax: (415) 743-6910 Email: david.holtzman@hklaw.com ATTORNEY TO BE NOTICED

Donald J. Trump
Defendant Wilbur L. Ross Defendant U.S. Department of Commerce Defendant

represented by Daniel D. Mauler U.S. Department of Justice Civil Division - Federal Programs Branch 20 Massachusetts Ave, NW Room 6141 Washington, DC 20530 202-616-0773 Email: dan.mauler@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brad Prescott Rosenberg U.S. Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20044 202-514-3374 Fax: 202-616-8460 Email: brad.rosenberg@usdoj.gov ATTORNEY TO BE NOTICED
represented by Daniel D. Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brad Prescott Rosenberg (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel D. Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brad Prescott Rosenberg (See above for address) ATTORNEY TO BE NOTICED

Steven Dillingham
Defendant U.S. Census Bureau
Amicus The League of Women Voters

represented by Daniel D. Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brad Prescott Rosenberg (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel D. Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brad Prescott Rosenberg (See above for address) ATTORNEY TO BE NOTICED
represented by Blaine I. Green Pillsbury Winthrop LLP Post Office Box 2824 San Francisco, CA 94126 415/983-1476 Email: blaine.green@pillsburylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dustin James Chase-Woods Pillsbury Winthrop Shaw Pittman LLP Four Embarcadero Center, 22nd Floor San Francisco, CA 94111 (415) 983-1213 Fax: (415) 983-1200 Email: dustin.chasewoods@pillsburylaw.com ATTORNEY TO BE NOTICED
Jennifer G Altman Pillsbury Winthrop Shaw Pittman LLP 600 Brickell Avenue Suite 3100 Miami, FL 33131 United Sta

Amicus U.S. House of Representatives
Amicus Brian Schatz

786-913-4900 Fax: 786-913-4901 Email: jennifer.altman@pillsburylaw.com PRO HAC VICE ATTORNEY TO BE NOTICED
Michael John Pisko Pillsbury Winthrop Shaw Pittman LLP 31 West 52nd Street New York, NY 10019 212-858-1207 Email: michael.pisko@pillsburylaw.com ATTORNEY TO BE NOTICED
Shani Rivaux Pillsbury Winthrop Shaw Pittman LLP 600 Brickell Avenue Suite 3100 Miami, FL 33131 United Sta 786-913-4900 Fax: 786-913-4901 Email: shani.rivaux@pillsburylaw.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Douglas N. Letter U.S. House of Representatives Office of General Counsel 219 Cannon House Office Building Washington, DC 20515 202-225-9700 Email: douglas.letter@mail.house.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra Constitutional Accountability Center 1200 18th Street, NW Suite 501 Washington, DC 20036

Amicus Richard Blumenthal
Amicus Cory A. Booker
Amicus Sherrod Brown
Amicus Dianne Feinstein
Amicus Mazie K. Hirono
Amicus Jeffrey A. Merkley
Amicus

202 296 6889 Fax: 202 296 6895 Email: elizabeth@theusconstitution.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Warren
Amicus Ron Wyden
Amicus Margo Anderson

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Richard W. Clary Cravath Swaine and Moore LLP 825 8th Ave Worldwide Plaza New York, NY 10019 (212) 474-1000 Fax: 212-474-3700 Email: rclary@cravath.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark R Trachtenberg Haynes and Boone LLP 1221 McKinney Street Suite 4000 Houston, TX 77010 713-547-2528 Fax: 713-547-2600 Email: Mark.Trachtenberg@haynesboone.com PRO HAC VICE ATTORNEY TO BE NOTICED
Tamara Irene Devitt Haynes and Boone, LLP 600 Anton Boulevard, Suite 700 Costa Mesa, CA 92626 949-202-3000 Fax: 949-202-3144 Email: Tamara.Devitt@haynesboone.com ATTORNEY TO BE NOTICED

Amicus Andrew Beveridge
Amicus Rachel Buff
Amicus Libby Garland

represented by Richard W. Clary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark R Trachtenberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tamara Irene Devitt (See above for address) ATTORNEY TO BE NOTICED
represented by Richard W. Clary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark R Trachtenberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tamara Irene Devitt (See above for address) ATTORNEY TO BE NOTICED
represented by Richard W. Clary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark R Trachtenberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tamara Irene Devitt (See above for address) ATTORNEY TO BE NOTICED

Amicus J. Morgan Kousser
Amicus Erika Lee
Amicus Natalia Molina

represented by Richard W. Clary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark R Trachtenberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tamara Irene Devitt (See above for address) ATTORNEY TO BE NOTICED
represented by Richard W. Clary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark R Trachtenberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tamara Irene Devitt (See above for address) ATTORNEY TO BE NOTICED
represented by Richard W. Clary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark R Trachtenberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tamara Irene Devitt (See above for address) ATTORNEY TO BE NOTICED

Amicus Steven Ruggles

represented by Richard W. Clary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark R Trachtenberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tamara Irene Devitt (See above for address) ATTORNEY TO BE NOTICED

Date Filed 07/28/2020 07/28/2020 07/28/2020
07/28/2020

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief against Steven Dillingham, Wilbur L. Ross, Donald J. Trump, U.S. Census Bureau, U.S. Department of Commerce ( Filing fee $ 400, receipt number 097114742550.). Filed byXavier Becerra, State of California. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Civil Cover Sheet)(Wise, R.) (Filed on 7/28/2020) (Entered: 07/28/2020)
2 Proposed Summons. (Wise, R.) (Filed on 7/28/2020) (Entered: 07/28/2020)
3 Case assigned to Magistrate Judge Jacqueline Scott Corley.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5-1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. (haS, COURT STAFF) (Filed on 7/28/2020) (Entered: 07/28/2020)
4 NOTICE of Appearance by Gabrielle Downey Boutin (Boutin, Gabrielle) (Filed on 7/28/2020) (Entered: 07/28/2020)

07/29/2020 07/29/2020
07/29/2020 07/29/2020

5 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Xavier Becerra, State of California.. (Wise, R.) (Filed on 7/29/2020) (Entered: 07/29/2020)
6 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 10/22/2020. Initial Case Management Conference set for 10/29/2020 01:30 PM in San Francisco, Courtroom E, 15th Floor. (Attachments: # 1 Standing Order)(msrS, COURT STAFF) (Filed on 7/29/2020)
Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)
(Entered: 07/29/2020)
7 Summons Issued as to Steven Dillingham, Wilbur L. Ross, Donald J. Trump, U.S. Census Bureau, U.S. Department of Commerce. (msrS, COURT STAFF) (Filed on 7/29/2020) (Entered: 07/29/2020)
8 CLERK'S NOTICE OF IMPENDING REASSIGNMENT TO A U.S. DISTRICT COURT JUDGE: The Clerk of this Court will now randomly reassign this case to a District Judge because either (1) a party has not consented to the jurisdiction of a Magistrate Judge, or (2) time is of the essence in deciding a pending judicial action for which the necessary consents to Magistrate Judge jurisdiction have not been secured. You will be informed by separate notice of the district judge to whom this case is reassigned.
ALL HEARING DATES PRESENTLY SCHEDULED BEFORE THE CURRENT MAGISTRATE JUDGE ARE VACATED AND SHOULD BE RE-NOTICED FOR HEARING BEFORE THE JUDGE TO WHOM THIS CASE IS REASSIGNED.
This is a text only docket entry; there is no document associated with this notice. (ahm, COURT STAFF) (Filed on 7/29/2020)

07/29/2020

Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)
(Entered: 07/29/2020)
9 ORDER, Case Reassigned using a proportionate, random, and blind system pursuant to General Order No. 44 to Judge Edward M. Chen for all further proceedings. Magistrate Judge Jacqueline Scott Corley no longer assigned to the case. Notice: The assigned judge participates in the Cameras in the Courtroom Pilot Project. See General Order No. 65 and http://cand.uscourts.gov/cameras.. Signed by The Clerk on 7/29/20. (Attachments: # 1 Notice of Eligibility for Video Recording)(haS, COURT STAFF) (Filed on 7/29/2020)

08/03/2020 08/06/2020 08/14/2020
08/17/2020

Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)
(Entered: 07/29/2020)
10 CASE MANAGEMENT CONFERENCE ORDER IN REASSIGNED CASE: Initial Case Management Conference set for 10/15/2020 09:30 AM in San Francisco. Joint Case Management Statement due by 10/8/2020. Signed by Judge Edward M. Chen on 8/3/2020. (afmS, COURT STAFF) (Filed on 8/3/2020) (Entered: 08/03/2020)
11 CERTIFICATE OF SERVICE by Xavier Becerra, State of California (Wise, R.) (Filed on 8/6/2020) (Entered: 08/06/2020)
12 ORDER REASSIGNING CASE. Case reassigned to Judge Lucy H. Koh for all further proceedings re Docket Entry 43 filed in Case 205167] Relating Cases. Notice: The assigned judge participates in the Cameras in the Courtroom Pilot Project. See General Order No. 65 and http://cand.uscourts.gov/cameras. Judge Edward M. Chen no longer assigned to case. (Attachments: # 1 Notice of Eligibility for Video Recording)(bwS, COURT STAFF) (Filed on 8/14/2020)
Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)
Modified on 8/14/2020 (bwS, COURT STAFF). (Entered: 08/14/2020)
13 **CLERK'S NOTICE SETTING ZOOM HEARING**
Following the case reassignment to the Honorable Lucy H. Koh, an Initial Case Management Conference is set for August 18, 2020 at 10:30 AM via Zoom Webinar.
For Zoom connection, see: https://apps.cand.uscourts.gov/telhrg/
This proceeding will be a Zoom video conferencing webinar. ADVANCE REGISTRATION OF PARTICIPATING COUNSEL IS REQUIRED and must be done by emailing a list of names and emails of counsel who will be participating in the hearing to LHKcrd@cand.uscourts.gov by no later than 8/17/2020. (Counsel who have already pre-registered for the Initial Case Management Conference in the related case, 5:20-cv-05167-LHK, need not register a second time.)
PLEASE NOTE: Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including

08/17/2020 08/17/2020 08/18/2020

screenshots or other visual copying of a hearing, is absolutely prohibited. See General Order 58 at Paragraph III.
Case participants may also receive an email invitation from the court with different information which should be followed.
All counsel, members of the public and press please click the link or use the information below to join the webinar:
https://canduscourts.zoomgov.com/j/1618399532?pwd=aklxUFF6TFFpYm10WHpp UnZqUUo1dz09
Meeting ID: 161 839 9532 Password: 919880
Dial by your location +1 929 205 6099 US (New York) +1 253 215 8782 US +1 301 715 8592 US +1 312 626 6799 US (Chicago) +1 346 248 7799 US (Houston) +1 669 900 6833 US (San Jose) Find your local number: https://zoom.us/u/ac4JkPfcjo
For important information and guidance on technical preparation, please see https://www.cand.uscourts.gov/zoom/.
(This is a text-only entry generated by the court. There is no document associated with this entry.) (kedS, COURT STAFF) (Filed on 8/17/2020) (Entered: 08/17/2020)
14 NOTICE of Appearance by Daniel D. Mauler on behalf of Federal Defendants (Mauler, Daniel) (Filed on 8/17/2020) (Entered: 08/17/2020)
15 CASE MANAGEMENT STATEMENT Joint Case Management Statement filed by Xavier Becerra, State of California. (Boutin, Gabrielle) (Filed on 8/17/2020) (Entered: 08/17/2020)
16 SUA SPONTE Judicial Referral for Purpose of Determining Relationship of Case 5:20-cv-05799 NC with 5:20-cv-05167 LHK and 5:20-cv-05169 LHK. Signed by Judge Nathanael Cousins on 8/18/2020. (lmh, COURT STAFF) (Filed on 8/18/2020) (Entered: 08/18/2020)

08/18/2020 08/18/2020

17 Request to the Chief Judge of the U.S. Court of Appeals for the Ninth Circuit to Convene a Three-Judge Court Under 28 U.S.C. § 2284. Signed by Judge Lucy H. Koh on 8/18/2020. (lhklc3, COURT STAFF) (Filed on 8/18/2020) (Entered: 08/18/2020)
18 Case Management Order. Signed by Judge Lucy H. Koh on 8/18/2020. (lhklc3, COURT STAFF) (Filed on 8/18/2020) (Entered: 08/18/2020)

08/18/2020
08/19/2020 08/19/2020

19 Minute Entry for proceedings held before Judge Lucy H. Koh: Initial Case Management Conference held on 8/18/2020 from 10:37 AM - 11:37 AM (1 hour). The August 18, 2020 Case Management Order memorializes all relevant information and deadlines from the Conference.
Total Time in Court: 1 hour. Court Reporter: Lee-Anne Shortridge.
For Plaintiffs: Richard Bress; Sadik Huseny; Steven Bauer; Amit Makker; Shannon D. Lankenau; Ezra Rosenberg; Matthew Wise; Gabrielle Downey Boutin; Maria Bee; and Keith A. Yeomans. For Defendants: Brad Rosenberg and Dan Mauler.
For transcript orders, please visit https://cand.uscourts.gov/transcripts
(This is a text-only entry generated by the court. There is no document associated with this entry.) (kedS, COURT STAFF) (Date Filed: 8/18/2020) (Entered: 08/19/2020)
20 STIPULATION Regarding Topics for Early Dispositive Briefings and Responsive Pleading Deadlines filed by Xavier Becerra, State of California. (Attachments: # 1 Declaration, # 2 Proposed Order)(Boutin, Gabrielle) (Filed on 8/19/2020) (Entered: 08/19/2020)
21 ***FILED IN ERROR - See ECF 22 for Correction*** ORDER designating United States District Court composed of three judges pursuant to Section 2284, Title 28 United States Code. Effective 8/19/2020, the Honorable Richard R. Clifton, United States Circuit Judge for the Ninth Circuit Court of Appeals, and the Honorable Edward M. Chen, United States District Judge for the Northern District of California, to sit with the Honorable Lucy H. Koh. Signed by Chief Judge Sidney R. Thomas, United States Court of Appeals for the Ninth Circuit. (sp, COURT STAFF) (Filed on 8/19/2020)
Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

08/20/2020
08/20/2020 08/20/2020 08/21/2020
08/21/2020 08/21/2020

Modified on 8/20/2020 (sp, COURT STAFF). (Entered: 08/19/2020)
22 CORRECTED ORDER designating United States District Court composed of three judges pursuant to Section 2284, Title 28 United States Code. Effective 8/19/2020, the Honorable Richard R. Clifton, United States Circuit Judge for the Ninth Circuit Court of Appeals, and the Honorable Edward M. Chen, United States District Judge for the Northern District of California, to sit with the Honorable Lucy H. Koh. Signed by Chief Judge Sidney R. Thomas, United States Court of Appeals for the Ninth Circuit.. (sp, COURT STAFF) (Filed on 8/20/2020)
Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)
(Entered: 08/20/2020)
23 NOTICE of Appearance by Sue Ann Salmon Evans as Lead Counsel for Plaintiff Los Angeles Unified School District (Salmon Evans, Sue) (Filed on 8/20/2020) (Entered: 08/20/2020)
24 NOTICE of Appearance by Keith Alexander Yeomans for Plaintiff Los Angeles Unified School District (Yeomans, Keith) (Filed on 8/20/2020) (Entered: 08/20/2020)
25 ORDER RELATING CASES by Judge Lucy H. Koh. The Court RELATES Case No. 5:20-cv-05799-NC, National Urban League et al v. Ross et al, to Case Nos. 5:20-cv-05167-LHK, City of San Jose, et al v. Donald J. Trump, et al, and 5:20-cv-05169 LHK, State of California, et al v. Donald J. Trump, et al. The Clerk shall reassign National Urban League et al v. Ross et al to Judge Lucy H. Koh. (This is a text-only entry generated by the court. There is no document associated with this entry.) (kedS, COURT STAFF) (Filed on 8/21/2020)
Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)
(Entered: 08/21/2020)
26 Order Regarding Joint Stipulation Regarding Topics for Early Dispositive Briefings and Responsive Pleading Deadlines by Judge Lucy H. Koh granting (52) Stipulation in case 5:20-cv-05167-LHK. Associated Cases: 5:20-cv-05167-LHK, 5:20-cv-05169-LHK(lhklc3, COURT STAFF) (Filed on 8/21/2020) (Entered: 08/21/2020)
27 Order Adopting Previous Orders and Delegating Pro Hac Vice Motions. Signed by Judge Lucy H. Koh on 8/21/2020. (lhklc3, COURT STAFF) (Filed on 8/21/2020) (Entered: 08/21/2020)

08/24/2020 08/25/2020 08/25/2020 08/25/2020 08/25/2020 08/26/2020 08/26/2020
08/26/2020 08/27/2020

28 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF by Xavier Becerra, State of California. (Wise, R.) (Filed on 8/24/2020) Modified on 8/25/2020 . Incorrect event selected when posting document (dhmS, COURT STAFF). (Entered: 08/24/2020)
Electronic filing error. Incorrect event used. [err101]Corrected by
Clerk's Office. No further action is necessary. Re: 28 Amended Document filed by State of California, Xavier Becerra (dhmS, COURT STAFF) (Filed on 8/25/2020) (Entered: 08/25/2020)
29 NOTICE of Appearance by Kathleen Alice Kenealy for Plaintiff City of Los Angeles (Kenealy, Kathleen) (Filed on 8/25/2020) (Entered: 08/25/2020)
30 NOTICE of Appearance by Michael Joseph Dundas for Plaintiff City of Los Angeles (Dundas, Michael) (Filed on 8/25/2020) (Entered: 08/25/2020)
31 NOTICE of Appearance by David Ilan Holtzman Daniel P. Kappes and Jacqueline N. Harvey (Holtzman, David) (Filed on 8/25/2020) (Entered: 08/25/2020)
32 TRANSCRIPT ORDER for proceedings held on 8/18/2020 before Judge Lucy H. Koh for Court Reporter Lee-Anne Shortridge. (sp, COURT STAFF) (Filed on 8/26/2020) (Entered: 08/26/2020)
33 Transcript of Proceedings held on 8-18-20, before Judge Lucy H. Koh. Court Reporter Lee-Anne Shortridge, telephone number e-mail: leeanne_shortridge@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (53 in 5:20-cv-05167-LHK-RRC-EMC) Transcript Order, ) Release of Transcript Restriction set for 11/24/2020. (lasS, COURT STAFF) (Filed on 8/26/2020) (Entered: 08/26/2020)
34 NOTICE of Appearance by Valerie Louise Flores as Lead Counsel for Plaintiff City of Los Angeles (Flores, Valerie) (Filed on 8/26/2020) (Entered: 08/26/2020)
35 STIPULATION Joint Stipulation to Permit Filings of Amicus Briefs filed by Xavier Becerra, State of California. (Boutin, Gabrielle) (Filed on 8/27/2020) (Entered: 08/27/2020)

08/27/2020 08/27/2020 08/28/2020
08/28/2020 08/31/2020

36 Order Granting Stipulation to Permit Filing of Amicus Briefs. Signed by Judge Lucy H. Koh on 8/27/2020. (lhklc3, COURT STAFF) (Filed on 8/27/2020) (Entered: 08/27/2020)
37 MOTION for Partial Summary Judgment filed by Xavier Becerra, State of California. Motion Hearing set for 10/8/2020 01:30 PM in San Jose, Courtroom 8, 4th Floor before Judge Lucy H. Koh. Responses due by 9/10/2020. Replies due by 9/21/2020. (Attachments: # 1 Declaration of Gilgenbach, # 2 Declaration of Lankenau, # 3 Proposed Order)(Boutin, Gabrielle) (Filed on 8/27/2020) Modified Replies due date to 9/21/2020 on 9/1/2020 (dhmS, COURT STAFF). (Entered: 08/28/2020)
38 EXHIBITS re 37 MOTION for Partial Summary Judgment filed byXavier Becerra, State of California. (Attachments: # 1 Exhibit 2 to Declaration of Lankenau, # 2 Exhibit 3 to Declaration of Lankenau, # 3 Exhibit 4 to Declaration of Lankenau, # 4 Exhibit 5 to Declaration of Lankenau, # 5 Exhibit 6 to Declaration of Lankenau, # 6 Exhibit 7 to Declaration of Lankenau, # 7 Exhibit 8 to Declaration of Lankenau, # 8 Exhibit 9 to Declaration of Lankenau, # 9 Exhibit 10 to Declaration of Lankenau, # 10 Exhibit 11 to Declaration of Lankenau, # 11 Exhibit 12 to Declaration of Lankenau, # 12 Exhibit 13 to Declaration of Lankenau, # 13 Exhibit 14 to Declaration of Lankenau, # 14 Exhibit 15 to Declaration of Lankenau, # 15 Exhibit 16 to Declaration of Lankenau, # 16 Exhibit 17 to Declaration of Lankenau, # 17 Exhibit 18 to Declaration of Lankenau, # 18 Exhibit 19 to Declaration of Lankenau, # 19 Exhibit 20 to Declaration of Lankenau, # 20 Exhibit 21 to Declaration of Lankenau, # 21 Exhibit 22 to Declaration of Lankenau, # 22 Exhibit 23 to Declaration of Lankenau, # 23 Exhibit 24 to Declaration of Lankenau, # 24 Exhibit 25 to Declaration of Lankenau, # 25 Exhibit 26 to Declaration of Lankenau, # 26 Exhibit 27 to Declaration of Lankenau, # 27 Exhibit 28 to Declaration of Lankenau, # 28 Exhibit 29 to Declaration of Lankenau, # 29 Exhibit 30 to Declaration of Lankenau, # 30 Exhibit 31 to Declaration of Lankenau, # 31 Exhibit 32 to Declaration of Lankenau, # 32 Exhibit 33 to Declaration of Lankenau, # 33 Exhibit 34 to Declaration of Lankenau, # 34 Exhibit 35 to Declaration of Lankenau)(Related document(s) 37 ) (Boutin, Gabrielle) (Filed on 8/28/2020) (Entered: 08/28/2020)
39 NOTICE by Xavier Becerra, State of California of Errata to Declaration of Ruth Gilgenbach, PH.D in Support of Plaintiffs' Motion for Partial Summary Judgment (Wise, R.) (Filed on 8/28/2020) (Entered: 08/28/2020)
40 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-14879899.) filed by The League of Women Voters.

08/31/2020
08/31/2020 08/31/2020 08/31/2020 08/31/2020 08/31/2020 09/01/2020 09/01/2020 09/01/2020
09/01/2020 09/01/2020

(Attachments: # 1 Certificate/Proof of Service, # 2 Certificate/Proof of Service)(Rivaux, Shani) (Filed on 8/31/2020) (Entered: 08/31/2020)
41 Order by Judge Lucy H. Koh granting (40) Motion for Pro Hac Vice in cases 5:20-cv-05169-LHK-RRC-EMC and 5:20-cv-05167-LHKRRC-EMC. Associated Cases: 5:20-cv-05169-LHK-RRC-EMC, 5:20-cv-05167-LHK-RRC-EMC(lhklc3, COURT STAFF) (Filed on 8/31/2020) (Entered: 08/31/2020)
42 NOTICE of Appearance by Monica J. Kilaita for City of Long Beach (Kilaita, Monica) (Filed on 8/31/2020) (Entered: 08/31/2020)
43 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-14881247.) filed by The League of Women Voters. (Attachments: # 1 Certificate/Proof of Service, # 2 Certificate/Proof of Service)(Altman, Jennifer) (Filed on 8/31/2020) (Entered: 08/31/2020)
44 Order by Judge Lucy H. Koh granting 43 Motion for Pro Hac Vice. (lhklc3, COURT STAFF) (Filed on 8/31/2020) (Entered: 08/31/2020)
45 Brief / Brief as Amicus Curiae in Support of Plaintiffs filed byU.S. House of Representatives. (Letter, Douglas) (Filed on 8/31/2020) (Entered: 08/31/2020)
46 NOTICE of Appearance by Douglas N. Letter on behalf of U.S. House of Representatives as Amicus Curiae (Letter, Douglas) (Filed on 8/31/2020) (Entered: 08/31/2020)
47 Brief Amici Curiae of Members of Congress filed byBrian Schatz, Richard Blumenthal, Cory A. Booker, Sherrod Brown, Dianne Feinstein, Mazie K. Hirono, Jeffrey A. Merkley, Elizabeth Warren, Ron Wyden. (Wydra, Elizabeth) (Filed on 9/1/2020) (Entered: 09/01/2020)
48 NOTICE of Appearance by Maria Bee (Bee, Maria) (Filed on 9/1/2020) (Entered: 09/01/2020)
49 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-14888763.) filed by Margo Anderson, Andrew Beveridge, Rachel Buff, Libby Garland, J. Morgan Kousser, Erika Lee, Natalia Molina, Steven Ruggles. (Attachments: # 1 Certificate of Good Standing (Texas))(Trachtenberg, Mark) (Filed on 9/1/2020) (Entered: 09/01/2020)
50 Order by Judge Lucy H. Koh granting 49 Motion for Pro Hac Vice. (lhklc3, COURT STAFF) (Filed on 9/1/2020) (Entered: 09/01/2020)
51 NOTICE of Appearance by Richard W. Clary (Clary, Richard) (Filed on 9/1/2020) (Entered: 09/01/2020)

09/01/2020 09/01/2020
09/01/2020
09/01/2020
09/02/2020
09/02/2020 09/02/2020 09/04/2020 09/06/2020 09/10/2020

52 NOTICE of Appearance by Tamara Irene Devitt (Devitt, Tamara) (Filed on 9/1/2020) (Entered: 09/01/2020)
53 Certificate of Interested Entities by Margo Anderson, Andrew Beveridge, Rachel Buff, Libby Garland, J. Morgan Kousser, Erika Lee, Natalia Molina, Steven Ruggles (Clary, Richard) (Filed on 9/1/2020) (Entered: 09/01/2020)
54 Brief ("Brief of Amici Curiae Historians in Support of Plaintiffs' Motion for Partial Summary Judgment") filed byMargo Anderson, Andrew Beveridge, Rachel Buff, Libby Garland, J. Morgan Kousser, Erika Lee, Natalia Molina, Steven Ruggles. (Clary, Richard) (Filed on 9/1/2020) (Entered: 09/01/2020)
55 Brief re 37 MOTION for Partial Summary Judgment Amicus Brief in Support of Plaintiffs' Motion for Partial Summary Judgment filed byThe League of Women Voters. (Related document(s) 37 ) (Green, Blaine) (Filed on 9/1/2020) (Entered: 09/01/2020)
56 MOTION for leave to appear in Pro Hac Vice for Michael J. Pisko ( Filing fee $ 310, receipt number 0971-14893829.) filed by The League of Women Voters. (Attachments: # 1 Ex A Certificate of Good Standing)(Pisko, Michael) (Filed on 9/2/2020) (Entered: 09/02/2020)
57 NOTICE of Appearance by Blaine I. Green (Green, Blaine) (Filed on 9/2/2020) (Entered: 09/02/2020)
58 NOTICE of Appearance by Blaine I. Green of Dustin ChaseWoods (Green, Blaine) (Filed on 9/2/2020) (Entered: 09/02/2020)
59 NOTICE of Appearance by Brad Prescott Rosenberg (Rosenberg, Brad) (Filed on 9/4/2020) (Entered: 09/04/2020)
60 Order by Judge Lucy H. Koh granting 56 Motion for Pro Hac Vice. (lhklc3, COURT STAFF) (Filed on 9/6/2020) (Entered: 09/06/2020)
61 MOTION to Dismiss , MOTION for Partial Summary Judgment , and Opposition to Plaintiffs' Motion for Partial Summary Judgment (ECF No. 37) filed by Steven Dillingham, Wilbur L. Ross, Donald J. Trump, U.S. Census Bureau, U.S. Department of Commerce. Motion Hearing set for 10/8/2020 01:30 PM in San Jose, Courtroom 8, 4th Floor before Judge Lucy H. Koh. Responses due by 9/21/2020. Replies due by 9/28/2020. (Attachments: # 1 Declaration Declaration of John M. Abowd, # 2 Declaration Declaration of Albert E. Fontenot)(Mauler, Daniel) (Filed on 9/10/2020) (Entered: 09/10/2020)

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 Case 3:20-cv-05169-JSC Document 1 Filed 07/28/20 Page 1 of 21

1 XAVIER BECERRA

. Attorney General of California

2 THOMAS S. PATTERSON

.

Senior Assistant Attorney General

3 ANTHONY R. HAKL

Supervising Deputy Attorney General

4 GABRIELLE D. BOUTIN, SBN 267308

R. MATTHEW WISE, SBN 238485

5 Deputy Attorneys General ·

1300 I Street, Suite 125

6 P.O. Box 944255

Sacramento, CA 94244-2550

7 Telephone: (916) 210-6046

Fax: (916) 324-8835

8 E-mail: Matthew.Wise@doj.ca.gov

Attorneys for PlaintiffState ofCalifornia, by and

9 through Attorney General Xavier Becerra

10 IN THE UNITED STATES DISTRICT COURT
11 FOR THE NORTHERN DISTRICT OF CALIFORNIA
12

13

14

15 STATE OF CALIFORNIA, by and through

Attorney General Xavier Becerra, CITY OF

16 LOS ANGELES, CITY OF LONG BEACH,

COMPLAINT FOR DECLARATORY

CITY OF OAKLAND. LOS ANGELES

AND INJUNCTIVE RELIEF

17 UNIFIED SCHOOL DISTRICT,

(Fourth and Fifth Claims for Relief -

18

Plaintiffs, Violations of Administrative Procedure Act)

19

V.

20 · DONALD J. TRUMP, in his-official capacity
21 as President of the United States, WILBUR L. ROSS, JR., in his official capacity as Secretary
22 of the U.S. Department of Commerce; U. S. DEPARTMENT OF COMMERCE; STEVEN
23 DILLINGHAM, in his official capacity as Director of the U.S. Census Bureau; U.S.
24 CENSUS BUREAU; DOES 1-100,

25

Defendants.

26

27

28

Complaint

Case 3:20-cv-05169-JSC Document 1 Filed 07/28/20 Page 2 of 21

1

INTRODUCTION

2

1. For 230 years, since the first national census in 1790, the United States has- included

3 in the census count not only ?itizens, but all immigrants. regardless of their legal immigration 4 status.

5

2. The U.S. Constitution mandates this historical practice by requiring an "actual

6 Enumeration" that "count[s] the whole number of persons in each State" for the purpose of

7 apportioning members of the U.S. House of Representatives among the states. U.S. Const. art. L

8 § 2, cl. 3, and amend. XIV,§ 2.

9

3. Thus, it is well settled that all persons residing in the United States must be counted

10 to fulfill the Constitution's "actual Enumeration" mandate for congressional apportionment. See

11 U.S. Const. art. I, § 2, cl. 3, and amend. XIV,§ 2; see also Evenwel v. Abbott, 136 S. Ct. 1120,

12 1127-29 (2016) (the Constitution requires the apportionment of Representatives based on the

13 "total population" in each state).

14

4. Despite this historical practice and longstanding precedent, President Donald J.

15 Trump issued a Presidential Memorandum (Memorandum) on July 21, 2020, announcing a

16 purported "policy of the United States to exclude from the apportionment base aliens who are not

17 in a lawful immigration status." Excluding Illegal Aliens From the Apportionment Base

18 Following the 2020 Census, 85 Fed. Reg. 44,679 (July 23 , 2020) (attached as Ex. 1). The

19 Memorandum orders the Secretary of Commerce to take steps in furtherance of this unlawful

20 policy, including by reporting to the President information that would permit the President to

21 exclude undocumented immigrants from the apportionment count. Id at 44,680.

22

5. The Memorandum's unprecedented policy and orders are unconstitutional and

23 otherwise unlawful.' They threaten to seriously harm Plaintiffs State of California, City of Los

24 Angeles, City of Long Beach, City of Oakland, and Los Angeles Unified School District

25 (LAUSD), including by depriving them of their rightful share of congressional representatives

26 and by depressing the 2020 Census count itself, which remains ongoing.

27

28
2 Complaint

Case 3:20-cv-05169-JSC Document 1 Filed 07/28/20 Page 3 of 21

1

6. Plaintiffs therefore seek declaratory, injunctive, mandamus, and other relief to

2 prevent Defendants from taking any action to exclude undocumented immigrants from the 2020

3 Census apportionment count.

4

JURISDICTION AND VENUE

5

7. This Court has jurisdiction under 28 U .S.C. § 1331 (action arising under the laws of

6 the United States), 28 U .S.C. § 1361 (action to compel officer or agency to perform duty owed to

7 Plaintiff), and 5 U .S.C. §§ 701-706 (Administrative Procedure Act (APA)). An actual

8 controversy exists between the parties within the meaning of28 U.S.C. § 2201(a), and this Court

9 may grant declaratory relief, injunctive relief, and other relief against the Defendants under 28

10 U.S.C. §§ 2201-2202 and 5 U .S.C. §§ 705-706.

11

8. Venue is proper in this Court under 28 U .S.C. § 1391(e) because this is a judicial

12 district in which the Plaintiffs State of California and City of Oakland reside, and this action seeks

13 relief against federal agencies and officials acting in their official capacity.

14

. INTRADISTRICT ASSIGNMENT

15

9. Under Civil Local Rules 3-5(b) and 3-2(c), Plaintiffs allege that there is no basis for

16 assignment of this action to any particular location or division of this Court.

17

PARTIES

18

I0. Plaintiff State of California, by and through Attorney General Xavier Becerra, brings

19 this action as a sovereign state in the United States of America. The Attorney General .is the chief

20 law officer of the State and has the authority to file civil actions to protect public rights and

21 interests. Cal. Const. art. V, § 13; Cal. Gov't Code § 12511. This challenge is brought under the

22 Attorney General 's independent constitutional, statutory. and common-law authority t~ bring suit

23 and obtain relief on behalf of the State.

24

11. Plaintiff City of Los Angeles is a municipal corporation organized and existing under

25 the laws of the State of California.

26

12. Plaintiff City of Long Beach is a municipal corporation organized and existing under

27 the laws ofthe State of California.
28
3

Complaint

Case 3:20-cv-05169-JSC Document 1 Filed 07/28/20 Page 4 of 21

1

13. Plaintiff City of Oakland is a municipal corporation organized and existing under the

2 laws of the State of California.

3

14. Plaintiff LAUSD is a public entity duly existing under and by virtue of the laws of the

4 State of California and operating as a public school district providing educational services in the

5 County of Los Angeles, California.

6

15. Plaintiffs will suffer numerous, concrete harms from Defendants' actions described in

7 this Complaint. Plaintiffs will likely lose at least one seat in the U.S. House of Representatives

8 and, thus, at least one presidential elector in the Electoral College. Plaintiffs' share of political

9 power-and consequently, their share of federal funding-will be diminished. Plaintiffs'

10 congressional, state-level, and local redistricting efforts will be impaired. And the quality and

11 accuracy of census data will be harmed, further reducing the federal funding that Plaintiffs

12 receive and impeding their performance of critical government functions.

13

16. Defendant Donald J. Trump is the President of the United States of America and is

14 sued in his official capacity. President Trump is responsible for the actions and decisions that are

15 being challenged in this Complaint.

16

17. Defendant Wilbur L. Ross is the Secretary of the Department of Commerce and is

17 sued in his official capacity. Secretary Ross is responsible for fulfilling the Department of

18 Commerce's duties under the Constitution and the Census Act.

19

18. Defendant Department of Commerce is a federal agency. The Department of

20 Commerce, led by Secretary Ross, oversees the Census Bureau, which is tasked with executing

21 the 2020 Census.

22

19. Defendant Dr. Steven Dillingham is the Director of the U.S. Census Bureau and is

23 sued in his official capacity. Dr. Dillingham's duties include ensuring that the Bureau executes

24 the 2020 Census.

25

20. Defendant U.S. Census Bureau is an agency within, and under the jurisdiction of, the

26 Department of Commerce. The Bureau is responsible for planning and executing the decennial

27 census.

28
4 Complaint

Case 3:20-cv-05169-JSC Document 1 Filed 07/28/20 Page 5 of 21

1

BACKGROUND

2 I.
3

LEGAL BACKGROUND
21. In every census since 1790. the United States has counted all of its residents,

4 including for the purpose of apportioning the U .S. House of Representatives, regardles~ of

5 residents' citizenship or immigration status.1 This practice, consistently followed for well over

6 two centuries, is required by constitutional and statutory mandates.

7

22. The U.S. Constitution provides Congress with the power and responsibility to execute

8 the decennial census for the purpose of apportioning the U.S. House of Representatives. In

9 Article I, the Constitution provides, in relevant part, "Representatives ... shall be apportioned

10 among the several States ... according to their respective Numbers." U .S. Const. art I,§ 2, cl. 3. J1 It goes on to state that "[t]he actual enumerations shall be made within three Years after the first 12 Meeting of the Congress of the United States. and within every subsequent Term often Years, in 13 such Manner as they shall by Law direct." Id.

14

23. The Fourteenth Amendment of the U.S. Constitution also governs the census count

15 and its role in apportioning the U.S. House of Representatives. Section 2 of the Fourteenth

16 Amendment provides, in relevant part, "Representatives shall be apportioned among the several 17 States according to their respective numbers, counting the ·whole number ofpersons in ·each State. 18 excluding Indians not taxed. '? U.S. Const. amend. XIV, § 2 (emphasis added).

19

24. In Title 13 of the United States Code, also known as the Census Act, Congress

20 delegated to the Secretary of Commerce the responsibility for conducting the Census, 13 U .S.C.

21 § 141(a), and created the U.S.. Census Bureau within the Department of Commerce, to which the

22 Secretary may delegate his Census Act duties, 13 U.S.C. §§ 2, 4.

23

25. The Census Act also governs the Secretary's reporting of the census apportionment

24 count addressed in Article I and the Fourteenth Amendment of the Constitution. It requires the

25 1 This statement is subject to two qualifications, explicit in the Constitution, that are
26 historically important, but do not relate to the counting of undocumented immigrants irt 2020: the Three-Fifths Clause that was effectively nullified by the Fourteenth Amendment, and the ' 'Indians
27 not taxed" provision, which is generally not recognized. The inclusion of two express qualifications (one of which was subsequently nullified) reinforces the impropriety of the
28 executive branch's attempt to add an unenumerated qualification.
5
Complaint

Case 3:20-cv-05169-JSC Document 1 Filed 07/28/20 Page 6 of 21

1 Secretary to report to the President '·[t]he tabulation of total population by States ... as required

2 for the apportionment of Representatives in Congress among the several States." 13 U.S.C.

3 § 14I(b) (emphasis added).

4

26. In turn, the President "shall transmit to the Congress a statement showing the whole

S number ofpersons in each State. excluding Indians not taxed, as ascertained under the ...

6 decennial census of the population, and the number of Representatives to which each State would

7 be entitled under an apportionment of the then existing number of Representatives by the ...

8 method of equal proportions." 2 U.S.C. § 2a(a) (emphasis added).

9

27. The Supreme Court and other courts have also made clear that the Fourteenth

10 Amendment requires the app~rtionment of Representatives based on the "total population" in

11 each state. See Evenwel, 136 S. Ct. at 1127-29; see also Fed'nfor Am. Immigration Reform v.

12 Klutznick, 486 F. Supp. 564, 576-78 (D.D.C. 1980) (three-judge court) (the Constitution "requires

13 the counting of the ' whole number of persons' for apportionment purposes, and while illegal

14 aliens were not a component of the population at the time the Constitution was adopted, they are

15 clearly 'persons'"); New York v. Dep 't ofCommerce, 351 F. Supp. 3d 502, 514 (S.D.N:Y· 2018)

16 (reversed in part on other grounds) ('"the Constitution mandates that every ten years the federal

17 government endeavor to count every single person residing in the United States, whether citizen

18 or noncitizen, whether living here with legal status or without," and "[t]he population count

I9 derived from that effort is used ... to apportion Representatives among the states'}

20

28. The Census Bureau similarly recognizes that "[a]pportionment is based on the

21 resident population, plus a count of overseas federal employees, for each of the 50 states." Final

22 2020 Census Residence Criteria and Residence Situations, 83 Fed. Reg. 5525 , 5526 n. l (Feb. 8.

23 2018). That is why the Census Bureau promulgated a rule requiring all residents of the United

24 States, including all "foreign citizens,'' to be counted in the 2020 Census. Id. at 5533. This rule,

25 which was adopted in accordance with the notice-and-comment rulemaking process, is known as

26 the "Residence Rule." The Residence Rule is designed to ensure that the Census Bureau counts

27 all U.S. residents at their "usual residence"- "the place where a person lives and sleeps most of

28 the time." Id at 5526.
6

Complaint

Case 3:20-cv-05169-JSC Document 1 Filed 07/28/20 Page 7 of 21

29. The Secretary of Commerce himself has reiterated to Congress, while under oath, the

2 established rule that all residents must be counted. On March 14, 2019, the Secretary testified,

3 "The constitutional mandate,· sir, for the census is to try to count every person residing in the U.S.

4 at their place of residence on the dates when the census is conducted." Hearing Before the H

5 Comm. on Oversight & Reform, 116th Cong. 31 (Mar. 14, 2019). He further testified, "The

6 Department of Commerce is fully committed to administering as complete and accurate [aJ

7 decennial census as we can. We intend to try to count every person, taking all necessary actions

8 to do so." Id.

9 II. THE ADMINISTRATION'S UNLAWFUL ATTEMPT TO ADD A CITIZENSHIP QUESTION TO THE 2020 CENSUS
10

11

30. The Memorandum at issue in this action is directly related to Defendants' earlier

12 efforts to exclude immigrants from the census count by adding a question to the 2020 Census

13 questionnaire on citizenship status.

14

31. On March 26, 2018, setting aside decades of practice, Secretary Ross and the

15 Department of Commerce announced that a question on citizenship status would be added to the

16 2020 Census. The Secretary claimed that the decision was due to a request from the Department 17 of Justice for the purpose of obtaining data to enforce the Voting Rights Act.2

18

32. Lawsuits to vacate and enjoin the Secretary's decision were filed by numerous

19 plaintiffs in three district courts (including a suit in this Court by Plaintiffs in this case). Each

20 court struck down Secretary Ross's decision to add the citizenship question to the 202Q Census.

21 State ofCalifornia v. Ross, 358 F. Supp. 3d 965, 973-76 (N.D. Cal. 2019) (vacated and remanded

22 on other grounds); Ne,t1 York v. Dep 't ofCommerce, 351 F. Supp. 3d at 679-80; Kravitz v. Dep 't

23 a/Commerce, 366 F. Supp. 3d 681,691 , 756 (D. Md. 2019) (vacated and remanded on_ other

24 grounds). Among many other reasons for enjoining the decision, each court found that the

25 Secretary's reason for adding the citizenship question-to aid Voting Rights Act enforcement~

26 was pretextual.

27 2 In the three-and-a-half years of President Trump's administration, the Department of
28 Justice has filed zero cases to enforce the Voting Rights Act.
7
. Complaint

Case 3:20-cv-05169-JSC Document 1 Filed 07/28/20 Page 8 of 21

l

33. The Supreme Court agreed and affirmed the vacatur of the Secretary"s decision.

2 Dep 't ofCommerce v. New York. 139 S. Ct. 2551 , 2576 (2019). As a result, no citizenship

3 question appears on the 2020 Census questionnaire.

4

34. The citizenship question litigation before this Court resulted in numerous findings

5 that are relevant to this case. Among other findings of injury, the Court determined that adding a

6 citizenship question to the 2020 Census would cause a disproportionate undercount of ~laintiffs'

7 residents, which, in turn would create "a substantial risk that California will lose its fair share of

8 political representation in Congress, and by extension, the Electoral College," cause Plaintiffs to 9 lose federal funding, require Plaintiffs to expend funds to mitigate the effects of the citizenship

10 question, and harm the quality of the census data. State ofCalifornia v. Ross, 358 F. Supp. 3d at

11 992-93 , 1003-1005.

12 III. PRESIDENT TRUMP ORDERS FEDERAL AGENCIES TO ASSIST THE CENSUS BUREAU'S
COLLECTION OF CITIZENSHIP DATA FROM GOVERNMENT RECORDS
13

14

35. On June 11 , 2019, President Trump held a press conference in the White House Rose

15 Garden to announce that, following the Supreme Court's decision in the citizenship question

16 litigation, he would discontinue his efforts to add the question to the 2020 Census. He also

17 announced, however, that he was issuing an executive order on the Census Bureau's collection of

18 citizenship data.

19

36. Accordingly, on June 11 , 2019, President Trump issued Executive Order 13880,

20 "Collecting Information About Citizenship Status in Connection With the Decennial Census.'' 84

21 Fed. Reg. 33,821. In that order, the President stated, "we shall ensure that accurate citizenship

22 data is compiled in connection with the census by other means." Id. He noted that the·secretary

23 of Commerce had already directed the Census Bureau "to further enhance its administrative 24 record data sets" and "to obtain as many additional Federal and state administrative records as 25 possible." Id. To facilitate this effort, the President therefore ordered all federal agencies to 26 "promptly provide the [Commerce] Department the maximum assistance permissible, consistent

27 with law, in determining the number of citizens, non-citizens, and illegal aliens in the country,

28
8 Complaint

Case 3:20-cv-05169-JSC Document 1 Filed 07/28/20 Page 9 of 21

1 including by providing any access that the Department may request to administrative records that

2 may be useful in accomplishing that objective.,. Id. at 33,824.
., -' IV. THE JULY 21, 2020 PRESIDENTIAL MEMORANDUM TO EXCLUDE UNDOCUMENTED
IMMIGRANTS FROM THE APPORTIONMENT COUNT
4

5

37. On July 21, 2020, Defendant Trump issued a Presidential Memorandum to·the

6 Secretary of Commerce entit~ed, "Excluding Illegal Aliens From the Apportionment Base

7 Following the 2020 Census,"' 85 Fed. Reg. 44,679 (July 2 1, 2020) , and an accompanying

8 statement. See Ex. 2. The statement began:

9

Last summer in the Rose Garden, I told the American people that

I would not back down in my effort to determine the citizenship

10

status of the United States population. Today, I am following

through on that commitment by directing the Secretary of

11

Commerce to exclude illegal aliens from the appo1tionment base

following the 2020 census. 12

13 Id.

14

38. The Memorandum incorrectly asserts that "[t]he Constitution does not specifically

15 define which persons must be included in the apportionment base," that the phrase ..persons in

16 each state'' has been interpreted to mean " inhabitants," that the scope ofthe term "inhabitants"

17 requires ..the exercise ofjudgment,'" and that the President purportedly has discretion to exercise

18 that judgment to exclude entire categories of persons who reside in the United States. 85 Fed.

19 Reg. at 44,679.

20

39. On this asserted basis, the Memorandum declares that for reapportionment following

21 the 2020 Census, " it is the policy of the United States to exclude from the apportionment base

22 aliens who are not in a lawful immigration status under the Immigration and Nationality Act, as

23 amended (8 U .S.C. 1101 et seq.), to the maximum extent feasible and consistent \Vith the

24 discretion delegated to the executive branch:· Id. at 44,680.

25

40. The Memorandum then directs the Secretary of Commerce and the Department of

26 Commerce (and , through them, the Census Bureau) to take steps to allow the President to exclude

27 undocumented immigrants in his apportionment report to Congress issued under 2 U.S :C. § 2(a).

28 Id. This includes, but is not limited to, "provid[ing] information" in the report that the Secretary
9
Complaint

Case 3:20-cv-05169-JSC Document 1 Filed 07/28/20 Page 10 of 21

1 must provide to the President under 13 U.S.C. § 141 (b) that will "permit[] the President" to

2 exclude undocumented immigrants in calculating the number of U.S. House seats to which each

3 state is entitled. Id.

4

41. Upon information and belief, following receipt of the Memorandum, the

5 Department of Commerce ha.s issued (or will imminently issue) directives to the Census Bureau,

6 constituting final agency action, to implement the policy of excluding undocumented immigrants

7 from the census count used for congressional apportionment, as set forth in the Memorandum.

8

42. Defendants cannot reliably exclude undocumented immigrants from the

9 apportionment count. Even before the Memorandum issued, the Census Bureau's head of field

10 operations acknowledged that the Bureau will be unable to meet its statutory deadline to report

11 the census count. And just months ago, the federal government represented in separate litigation

12 that there is a "lack of accurate estimates ofthe resident undocumented population'' on a state-by13 state basis.3

14

43. Indeed, the federal government admits that it has not yet formulated a methodology

15 for how to exclude undocumented immigrants from the apportionment count. It has suggested

16 that it may be required to use statistical modeling to comply with the Memorandum. Defendants

I7 have not articulated how such statistical modeling will comport with their constitutional

18 obligation to conduct an "actual Enumeration," U.S. Const. art. 1, § 2, cl. 3, or their obligations

19 under the Census Act, see Dep 't ofCommerce v. U S. House ofRepresentatives, 525 U. S. 316,

20 342 (1999) ("the Census Act prohibits the use of sampling for apportionment purposes..).

21 V. PLAINTIFFS WILL BE HARMED BY THE EXCLUSION OF U NDOCUMENTED
IMMIGRANTS FROM THE CENSUS APPORTIONMENT COUNT
22

23

44. Plaintiffs each have a high number and percentage of residents who are

24 undocumented immigrants, a·s compared to other states and localities. These residents enrich

25 Plaintiffs' communities, support their economies, and pay taxes. The Memorandum and the

26 exclusion of undocumented immigrants from the census apportionment count will cause

27

3 Deel. of Census Bureau Senior Advisor Enrique Lamas, Defs.' Supp. Rule 26(a)(l)

Disclosures and Rule 26(a)(2)(C) Disclosures, Alabama v. Dep't ofCommerce, No. 2:18-cv28 00772-RDP (N.D. Ala. Mar. 13, 2020).

10

Complaint

Case 3:20-cv-05169-JSC Document 1 Filed 07/28/20 Page 11 of 21

1 numerous harms to Plaintiffs. The harms are due both to the apportionment consequences

2 themselves, and to the chilling effect that the Memorandum will have on the responses of

3 Plaintiffs' residents to the still-ongoing 2020 Census. Defendants' decision to exclude

4 undocumented immigrants from the apportionment count was announced just weeks before

5 Census Bureau enumerators were scheduled to go into the field to encourage households to

6 respond to the census. creating confusion and further increasing the risk of a differential

7 undercount harmful to Plaintiffs.

8

45. The Memorandum and the exclusion of undocumented immigrants from the census

9 apportionment count will likely cause Plaintiffs to lose one or more seats in the U.S. House of

10 Representatives and, consequently, one or more electors in the Electoral College. President

11 Trump expressly states in the Memorandum that this is a primary purpose of excluding

12 undocumented immigrants from the apportionment count:

13

Current estimates suggest that one State is home to more than 2.2

million illegal aliens. constituting more than 6 percent of the

14

State's entire population. Including these illegal aliens in the

population ofthe State for the purpose of apportionment could

15

result in the allocation of two or three more congressional seats

than would otherwise be allocated. 16

17 85 Fed. Reg. at 44,680. Upon information and belief, the State referred to in this passage is the 18 State of California.

19

46. The Memorandum and the exclusion of undocumented immigrants from the census

20 apportionment count will likely cause Plaintiffs to lose federal funding, due to both Plaintiffs' loss

21 of political power in Congress and the differential undercount of Plaintiffs' residents. A complete

22 and accurate count of all persons is critical to determine grant amounts provided to states and

23 localities for various federal programs.

24

47. The Memorandum and the exclusion of undocumented immigrants from th.e census

25 apportionment count will impair Plaintiffs· congressional, state-level, and local redistricting

26 efforts. The exclusionary apportionment count and differential undercount will harm Plaintiffs' 27 ability to redistrict based on the total number of residents in the state and to comply with

28 Plaintiffs' related constitutional obligations for redistricting.
11

Complaint

Case 3:20-cv-05169-JSC Document 1 Filed 07/28/20 Page 12 of 21

1

48. The Memorandum, the exclusion of undocumented immigrants from the census

2 apportionment count, and th~ resulting differential undercount of Plaintiffs' residents will also

3 harm the quality and accuracy of census data, including data on resident characteristics. This

4 harm to the data will impede Plaintiffs' performance of critical government functions..

5

49. Finally, the Memorandum, the exclusion of undocumented immigrants from the

6 census apportionment count, and the resulting differential undercount of Plaintiffs' residents have

7 required, and imminently will require, Plaintiffs to expend additional resources, includtng time

8 and money, in order to mitigate the differential undercount.

9

FIRST CLAIM FOR RELIEF

10 VIOLATION OF ACTUAL ENUMERATION AND APPORTIONMENT MANDATES

(U.S. Const. art. I,§ 2, cl. 3; U.S. Const. amend. XIV, § 2)

·

11

12

50. Plaintiffs re-allege and incorporate herein by reference each and every allegation and

13 paragraph set forth previously.

14

51. The Constitution requires the "actual Enumeration" of all persons in each state every

15 ten years. U.S. Const. art. I, § 2, cl. 3.

16

52. The Fourteenth Amendment requires that "Representatives shall be apportioned

17 among the several States according to their respective numbers, counting the whole number of

18 persons in each State." U.S. Const. amend. XIV, § 2.

19

53. Undocumented immigrants are recognized as persons under the Fourteenth

20 Amendment. Plyler v. Doe, 457 U.S. 202,210 (1982).

21

54. Defying these constitutional mandates to count all persons, including undocumented

22 immigrants, for the purpose of appo11ionment, the Memorandum declares that "it is the policy of

23 the United States to exclude from the apportionment base" undocumented immigrants. · 85 Fed.

24 Reg. at 44,680. The Memorandum further instructs the Secretary of Commerce "to provide

25 information permitting the President'' to implement this unconstitutional policy. This policy, and

26 any action Defendants take to further the policy, violates the Constitution's Enumeration Clause

27 and the Apportionment Clause of the Fourteenth Amendment.
28
12

Complaint

Case 3:20-cv-05169-JSC Document 1 Filed 07/28/20 Page 13 of 21

1

55. Defendants' violations of the Enumeration Clause and the Apportionment Clause

2 cause ongoing, irreparable harm to Plaintiffs and their residents, including the denial of

3 California' s proportionate share of congressional representatives and Electoral College· electors.

4

· SECOND CLAIM FOR RELIEF

5

VIOLATION OF SEPARATION OF POWERS

(U.S. Const. art. I,§ 1; U.S. Const. art. II,§ 3)

6

7

56. Plaintiffs re-allege and incorporate herein by reference each and every allegation and

8 paragraph set forth previously.

9

57. Article I, Section 1 of the Constitution enumerates that ''[a]ll legislative Powers

10 herein granted shall be vested in [the] Congress.'·

11

58. Article II, Section 3 of the Constitution requires the President to "take Care that the

12 Laws be faithfully executed."

13

59. The Constitution's Enumeration Clause, as amended by the Fourteenth Amendment,

14 "vests Congress with virtually unlimited discretion in conducting the decennial ' actual

15 Enumeration."' Dep 't ofCommerce v. New York, 139 S. Ct. at 2566 (quoting Wiscons[n v. City of

16 New York, 517 U.S. 1, 19 (1996)).

17

60. W ithin nine months of the census date, Congress requires the Secretary to report to

18 the President "[t]he tabulation of total population by States ... as required for the apportionment

19 of Representatives in Congress among the several States ...." 13 U.S.C. § 14l(b). Based on

20 that tabulation, Congress mandates that the President "shall transmit to the Congress a statement

21 showing the whole number of persons in each State . . . and the number of Representatives to

22 which each State would be entitled under an apportionment" calculated by "the method of equal
23 proportions." 2 u.s.c. § 2a(a).

24

61. Congress did not authorize the President to exclude undocumented immigrants from

25. the apportionment base. Yet the Memorandum proclaims that when the President calculates "the

26 number of Representatives to which each State would be entitled" and "transmits to the Congress

27 a statement" providing that calculation, he will exclude undocumented immigrants from the

28
13 Complaint

Case 3:20-cv-05169-JSC Document 1 Filed 07/28/20 Page 14 of 21

1 apportionment base in disregard of the congressional mandate in 2 U.S.C. § 2a(a). 85 Fed. Reg.

2 at 44,680.

3

62. Under the separation ofpowers, the executive branch "may not decline to follow a

4 statutory mandate ... simply because of policy objections. In re Aiken Cty., 725 F.3d 255,259

5 (D.C. 2013). The President's unilateral exclusion of undocumented immigrants from the

6 apportionment base is "incompatible" with Congress's will. See Youngstown Sheet & Tube Co. v.

7 Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).

8

63. Nor has Congress delegated to the President the authority to take the censu·s or to

9 dictate what is included in the Secretary's report to him. By requiring the Secretary, in preparing

10 his report to the President, to "take all appropriate action" to implement the Memorandum' s

11 unconstitutional policy of excluding undocumented immigrants from the apportionment base, and

12 to include in the report estimates of the number of undocumented immigrants in each state, 85

13 Fed. Reg. at 44,680, the President disregards Congress's intent in the Census Act that all persons

14 be counted in the apportionment. See Youngstown, 343 U.S. at 637 (Jackson, J., concurring).

15

64. When the President usurps Congress ' s authority in this manner, " his power is at its

16 lowest ebb,'" id., and he has failed his duty to ''take Care that the Laws be faithfully executed,"

17 U .S. Const. art. II,§ 3. The Memorandum thus violates the Constitution's separation of powers.

18

65. The President's violations of separation of powers principles cause ongoing,

19 irreparable harm to Plaintiffs and their residents, including the denial of California's

20 proportionate share of congressional representatives and Electoral College electors.

21

THIRD CLAIM FOR RELIEF

22

VIOLATION OF CENSUS ACT (ULTRA VIRES)

(2 U.S.C. § 2a(a); 13 U.S.C. § 141)

23

24

66. Plaintiffs re-allege and incorporate herein by reference each and every allegation and

25 paragraph set forth previously.

26

67. The Census Act requires the Secretary of Commerce to report to the President, within

27 nine months of the census date, "[t]he tabulation of total population by States . . . as required for

28 the apportionment of Representatives in Congress among the several States ...." 13 U.S.C.
14
. Complaint

Case 3:20-cv-05169-JSC Document 1 Filed 07/28/20 Page 15 of 21

I § 14l(b). Based on that tabulation. the President "shall transmit to the Congress a statement

2 showing the whole number of persons in each State ... and the number of Representatives to

3 which each State would be entitled under an apportionment"' calculated by "the method of equal

4 proportions." 2 U.S.C. § 2a(a).

5

68. To determine " [t]he tabulation of total population by States," 13 U.S.C. § 14l(b),

6 persons were counted at their "usual residence" under "the first enumeration Act and h¥J.[ve] been

7 [so counted] by the Census Bureau ever since ...." Franklin v. Massachusetts, 505 U.S. 788,

8 804 (1992). The Census Bureau has adopted this methodology in its Residence Rule, which
9 requires that each person is counted in "the place where [theJ person lives and sleeps ~ost of the

10 time." 83 Fed. Reg. at 5526.

11

69. Under the Residence Rule, "[c]itizens of foreign countries living in the Uni ted States··

12 are "[c]ounted at the U.S. residence where they live and sleep most of the time." 83 Fed. Reg. at

13 5533. Undocumented immigrants are thus counted at their usual residence and included in the

14 tabulation of total population· reported to the President. Id.

15

70. The Memorandum violates 13 U.S.C. § 141. It directs the Secretary, in preparing his

16 report to the President, to " take all appropriate action" to implement the Memorandum' s

17 unconstitutional policy of excluding undocumented immigrants from the apportionment base, and

18 to include in the report estimates of the number of undocumented immigrants in each state. These

19 directives violate 13 U.S.C. § 141 ' s requirements that the Secretary conduct an actual

20 Enumeration to determine the "total population by States"- including undocumented

21 immigrants-" as required for the apportionment of Representatives in Congress among the

22 several States," and report only that tabulation to the President.

23

71. The Memorandum also violates 2 U. S.C. § 2a(a). It proclaims that when the

24 President calculates "the number of Representatives to which each State would be entitled" and

25 "transmits to the Congress a statement" providing that calculation, 2 U.S.C. § 2a(a), he·will

26 exclude undocumented immigrants from the apportionment base. 85 Fed. Reg. at 44.680. This

27 policy violates 2 U. S.C. § 2a(a)'s requirements that the President use only the actual Enumeration

28
15 Complaint

Case 3:20-cv-05169-JSC Document 1 Filed 07/28/20 Page 16 of 21

1 of "the whole number of persons in each State" to calculate the apportionment of congressional

2 representatives, and to perform that calculation "by the ... method of equal proportions.''

3

72. Neither the President nor an agency can take any action that exceeds the scope of

4 constitutional or statutory authority. See Youngstown , 343 U.S. at 588-89. By violating the

5 Census Act, the President and the Secretary act ultra vires.

6

73. Defendants' viol~tions of the Census Act cause ongoing, irreparable harm to

7 Plaintiffs and their residents, including the denial of California' s proportionate share of

8 congressional representatives and Electoral College electors.

9

FOURTH CLAIM FOR RELIEF

10

VIOLATION OF ADMINISTRATIVE PROCEDURE ACT

(Action Not in Accordance with Law in Violation of 5 U.S.C. § 706)

11

12

74. Plaintiffs re-allege and incorporate herein by reference each and every allegation and

13 paragraph set forth previously.

14

75. The Constitution's Enumeration Clause. as amended by the Fourteenth A~endment,

15 is implemented through the Census Act. The Census Act requires the Secretary of Commerce to

16 report to the President, within nine months of the census date, "[t]he tabulation of total population

17 by States"- including undocumented immigrants-"as required for the apportionment of

18 Representatives in Congress among the several States ...." 13 U.S.C . § 14l(b). Based on that

19 tabulation, the President "shall transmit to the Congress a statement showing the whole number of

20 persons in each State ... and the number of Representatives to which each State would be entitled

21 under an apportionment" calculated by "the method of equal proportions.'' 2 U.S.C . § 2a(a).

22

76. The Administrative Procedure Act provides that a court must "hold unlawful and set

23 aside agency action" that is not in accordance with law, contrary to constitutional right, in excess

24 of statutory authority, or without observance of procedure required by law. 5 U.S.C. § 706(2).

25

77. The Memorandwn' s policy of excluding undocumented immigrants from the

26 enumeration used for apportionment is not in accordance with and exceeds the President's

27 authority under the Census Act, and it is contrary to the Enumeration Clause.
28
16

Complaint

Case 3:20-cv-05169-JSC Document 1 Filed 07/28/20 Page 17 of 21

I

78. Upon information and belief, the Department of Commerce has directed or will direct

2 the Census Bureau, in a final·agency action. to implement the Memorandum's policy of excluding

3 undocumented immigrants from the enumeration used for apportionment, in violation of these

4 provisions of the Administrative Procedure Act.

5

79. Among the violations is Defendants ' failure to observe the Administrative Procedure

6 Act's notice-and-comment rulemaking requirement before dispensing with the Census Bureau's

7 long-established Residence Rule. Absent sufficient notice and comment, the Census Hureau is

8 prohibited from implementing the Memorandum' s unconstitutional policy of excluding

9 undocumented immigrants from the enumeration used for apportionment and superseding the

10 Residence Rule' s requirement to count all persons- including undocumented immigrants- "at

11 the U. S. residence where they live and sleep most of the time." 83 Fed. Reg. at 5533.

12

80. Defendants have or imminently will also violate the Administrative Procedure Act to

13 the extent that, in order to exclude undocumented immigrants from the apportionment,.

14 Defendants utilize any statistical method to that fails to comport with the constitutional obligation

15 to conduct an " actual Enumeration," U. S. Const. art. 1, § 2, cl. 3, or obligations under the Census

16 Act.

17

81. The Secretary's actions to implement the Memorandum's policy are additional final

18 agency actions that violate these provisions of the Administrative Procedure Act.

19

82. Defendants' violations of the Administrative Procedure Act cause ongoing?

20 irreparable harm to Plaintiffs and their residents, including the denial of Califomia·s

21 proportionate share of congressional representatives and Electoral College electors.

22

FIFTH CLAIM FOR RELIEF

23

VIOLATION OF ADMINISTRATIVE PROCEDURE ACT

(Action that Is Arbitrary and Capricious in Violation of 5 U.S.C. § 706)
24

25

83. Plaintiffs re-allege and incorporate herein by reference each and every allegation and

26 paragraph set forth previously.

27

84. The Constitution' s Enumeration Clause, as amended by the Fourteenth Amendment,

28 is implemented through the Census Act. The Census Act requires the Secretary of Commerce to
17
Complaint

Case 3:20-cv-05169-JSC Document 1 Filed 07/28/20 Page 18 of 21

1 report to the President, within nine months of the census date, " [t]he tabulation of total population

2 by States''-including undocumented immigrants- "as required for the apportionment.of

3 Representatives in Congress among the several States . . . .'' 13 U.S.C. § 141 (b). Based on that

4 tabulation, the President "shall transmit to the Congress a statement showing the whole number of

5 persons in each State ... and the number of Representatives to which each State would be entitled

6 under an apportionment" calculated by "the method of equal proportions." 2 U.S.C. § 2a(a).

7

85. The Administrative Procedure Act provides that a court must "hold unlawful and set

8 aside agency action that is arbitrary and capricious, an abuse of discretion, runs counter to the

9 evidence before the agency, or fails to consider an important aspect of the problem. 5 U. S.C.

IO § 706; Motor Vehicle Mfrs. Ass 'n v. State Farm Mut. Auto Ins. Co. , 463 U.S. 29, 43 (1983).

11

86. Upon information and belief, the Department of Commerce has directed or will direct

12 the Census Bureau, in a final agency action, to implement the Memorandum's policy of excluding

13 undocumented immigrants from the enumeration used for apportionment, in violation of these

14 provisions of the Administrative Procedure Act.

15

87. Defendants act arbitrarily and capriciously because, among other things, they acted or

16 will imminently act without sufficient data, and without sufficient time to produce such data, to

17 determine the total number of undocumented immigrants in each state to exclude from the

18 apportionment base.

19

88. The Secretary' s actions to implement the Memorandum's policy are additional final

20 agency actions that violate these provisions ofthe Administrative Procedure Act.

21

89. Defendants ' violations of the Administrative Procedure Act cause ongoing;

22 irreparable harm to Plaintiffs_ and their residents, including the denial of California's

23 proportionate share of congressional representatives and Electoral College electors.

24

SIXTH CLAIM FOR RELIEF

25

DECLARATORY RELIEF

(28 u.s.c. § 2201)

26

27

90. Plaintiffs re-allege and incorporate herein by reference each and every allegation and

28 paragraph set forth previously.
18

Complaint

Case 3:20-cv-05169-JSC Document 1 Filed 07/28/20 Page 19 of 21

91. An actual controversy presently exists between Plaintiffs and Defendants about

2 whether the Constitution and_ Census Act require the apportionment base used to apportion

3 congressional representatives to include all persons counted in each state, including

4 undocumented immigrants.

5

92. Plaintiffs are enti_tled to a declaration that the Constitution and the Census Act require

6 the apportionment base used to apportion congressional representatives to include all persons 7 counted in each state. including undocumented immigrants.

8

PRAYER FOR RELIEF

9

WHEREFORE, Plaintiffs respectfully request that this Court:

10

1. Issue a declaration that Defendants ' decision to exclude undocumented imi:nigrants

11 from the apportionment base following the 2020 Census, and any action to implement that

12 decision, violate the Constitution and laws of the United States;

13

2. Issue a declaration that Defendants' decision to exclude undocumented immigrants

14 from the apportionment base following the 2020 Census, and any action to implement that

15 decision. violate the Administrative Procedure Act;

16

3. Issue a preliminary and permanent injunction enjoining Defendants and all those

17 acting in concert with them from excluding undocumented immigrants from the apportionment

18 base following the 2020 Census, or taking any action to implement that policy;

19

4. Issue a writ of mandamus compelling the Secretary of Commerce to tabulate and

20 report the total populati on by States under 13 U .S.C. § 14I(b) based on the actual enumeration of 21 the whole number of persons· in each state, including undocumented immigrants, without

22 providing a report estimating the number ofundocumented immigrants in each state:

23

5. Issue a writ of mandamus compelling the President to transmit to the Congress a

24 statement showing the whole number of persons in each State, including undocumented

25 immigrants, and the number of congressional representatives to which each State would be

26 entitled under an apportionment calculated by the method of equal proportions;

27

6. Award Plaintiffs .costs, expenses, and reasonable attorney fees; and

28

7. Award such other relief as the Court deems just and proper.

19

Complaint

Case 3:20-cv-05169-JSC Document 1 Filed 07/28/20 Page 20 of 21

1 Dated: July 28, 2020
2 3 4
5 6
7 8 9 IO
Dated: July 28, 2020
11
12 13 14 15 16 17 18 Dated: July 28, 2020 19 20 21 22 23 24 25 26 27 28

Respectfully submitted,
XAVIER BECERRA Attorney General of California THOMAS S. PATTERSON Senior Assistant Attorney General ANTHONY R. HAKL Supervising Deputy Attorney General
Isl R. Matthew Wise
GABRIELLE D. BOUTIN R. MATTHEW WISE Deputy Attorneys General Attorneys for PlaintiffState ofCaZ.ifornia
MIKE FEUER City Attorney for the City of Los Angeles
Isl Valerie Flores VALERIE FLORES, SBN 138572 Managing Senior Assistant City Attorney MICHAEL J. D UNDAS, SBN 226930 Deputy City Attorney 200 North Main Street, 7th Floor, MS 140 Los Angeles, CA 90012 Telephone: (213) 978-8130 Fax: (213) 978-8222 Email: Valerie.Flores@lacity.org
CHARLES PARKIN City Attorney for the City of Long Beach
Isl Charles Parkin SBN 159162 333 W. Ocean Blvd., 11th Floor Long Beach CA, 90802 Telephone: (562) 570-2200 Fax: (562) 436-1579 Email: Charles.Parkin@longbeach.gov
20 Complaint

Case 3:20-cv-05169-JSC Document 1 Filed 07/28/20 Page 21 of 21

1 Dated: July 28, 2020
2 ,.,
.)
4 5 6 7 8 9
Dated: July 28, 2020 10
11 12 13 14 15 16 17 18 19 20
21 22 23 24 25 26 27 28

BARBARA J. PARKER City Attorney for the City of Oakland Isl Maria Bee MARIA BEE, SBN 167716 Chief Assistant City Attorney MALIA McPHERSON Deputy City Attorney Ci ty Hall, 6th Floor 1 Frank Ogawa Plaza Oakland, California 94612 Telephone: (510) 238-3601 Fax: (510) 238-6500 Email: mbee@oaklandcityattomey.org
DANNIS WOLIVER KELLEY
Isl Sue Ann Salmon Evans Sue Ann Salmon Evans, SBN 151562 Keith A. Yeomans, SBN 245600
115 Pine Avenue, Suite 500 Long Beach, CA 90802 Telephone: 562.366.8500 Facsimile: 562.366.8505 sevans@ D WKesq .com kyeomans@DWKesq.com Attorneys for Los Angeles United School District
21 . Complaint

 
 Case 5:20-cv-05169-LHK-RRC-EMC Document 28 Filed 08/24/20 Page 1 of 31

1 XAVIER BECERRA Attorney General of California
2 THOMAS S. PATTERSON Senior Assistant Attorney General
3 ANTHONY R. HAKL Supervising Deputy Attorney General
4 GABRIELLE D. BOUTIN, SBN 267308 R. MATTHEW WISE, SBN 238485
5 Deputy Attorneys General 1300 I Street, Suite 125
6 P.O. Box 944255 Sacramento, CA 94244-2550
7 Telephone: (916) 210-6046 Fax: (916) 324-8835
8 E-mail: Matthew.Wise@doj.ca.gov Attorneys for Plaintiff State of California, by and
9 through Attorney General Xavier Becerra

10 IN THE UNITED STATES DISTRICT COURT
11 FOR THE NORTHERN DISTRICT OF CALIFORNIA
12

13

14

15 STATE OF CALIFORNIA, by and through

CASE NO. 5:20-cv-05169-LHK

Attorney General Xavier Becerra, CITY OF

16 LOS ANGELES, CITY OF LONG BEACH, FIRST AMENDED COMPLAINT FOR

CITY OF OAKLAND, LOS ANGELES

DECLARATORY AND INJUNCTIVE

17 UNIFIED SCHOOL DISTRICT, COUNTY

RELIEF

OF LOS ANGELES,

18

(Fourth and Fifth Claims for Relief –

Plaintiffs, Violations of Administrative Procedure Act)

19

v.

20

21 DONALD J. TRUMP, in his official capacity as President of the United States, WILBUR L.
22 ROSS, JR., in his official capacity as Secretary of the U.S. Department of Commerce; U.S.
23 DEPARTMENT OF COMMERCE; STEVEN DILLINGHAM, in his official capacity as
24 Director of the U.S. Census Bureau; U.S. CENSUS BUREAU; DOES 1-100,
25 Defendants.
26

27

28
1 First Amended Complaint

Case 5:20-cv-05169-LHK-RRC-EMC Document 28 Filed 08/24/20 Page 2 of 31

1

INTRODUCTION

2

1. For 230 years, since the first national census in 1790, the United States has included

3 in the census count not only citizens, but all immigrants, regardless of their legal immigration

4 status.

5

2. The U.S. Constitution mandates this historical practice by requiring an “actual

6 Enumeration” that “count[s] the whole number of persons in each State” for the purpose of

7 apportioning members of the U.S. House of Representatives among the states. U.S. Const. art. I,

8 § 2, cl. 3, and amend. XIV, § 2.

9

3. Thus, it is well settled that all persons residing in the United States must be counted

10 to fulfill the Constitution’s “actual Enumeration” mandate for congressional apportionment. See

11 U.S. Const. art. I, § 2, cl. 3, and amend. XIV, § 2; see also Evenwel v. Abbott, 136 S. Ct. 1120,

12 1127-29 (2016) (the Constitution requires the apportionment of Representatives based on the

13 “total population” in each state).

14

4. Despite this historical practice and longstanding precedent, President Donald J.

15 Trump issued a Presidential Memorandum (Memorandum) on July 21, 2020, announcing a

16 purported “policy of the United States to exclude from the apportionment base aliens who are not

17 in a lawful immigration status.” Excluding Illegal Aliens From the Apportionment Base

18 Following the 2020 Census, 85 Fed. Reg. 44,679 (July 23, 2020) (attached as Ex. 1). The

19 Memorandum orders the Secretary of Commerce to take steps in furtherance of this unlawful

20 policy, including by reporting to the President information that would permit the President to

21 exclude undocumented immigrants from the apportionment count. Id. at 44,680.

22

5. The Memorandum’s unprecedented policy and orders are unconstitutional and

23 otherwise unlawful. They threaten to seriously harm Plaintiffs State of California, City of Los

24 Angeles, City of Long Beach, City of Oakland, Los Angeles Unified School District (LAUSD),

25 and County of Los Angeles, including by depriving them of their rightful share of congressional

26 representatives and by depressing the 2020 Census count itself, which remains ongoing.

27

28
2 First Amended Complaint

Case 5:20-cv-05169-LHK-RRC-EMC Document 28 Filed 08/24/20 Page 3 of 31

1

6. Plaintiffs therefore seek declaratory, injunctive, mandamus, and other relief to

2 prevent Defendants from taking any action to exclude undocumented immigrants from the 2020

3 Census apportionment count.

4

JURISDICTION AND VENUE

5

7. This Court has jurisdiction under 28 U.S.C. § 1331 (action arising under the laws of

6 the United States), 28 U.S.C. § 1361 (action to compel officer or agency to perform duty owed to

7 Plaintiff), and 5 U.S.C. §§ 701-706 (Administrative Procedure Act (APA)). An actual

8 controversy exists between the parties within the meaning of 28 U.S.C. § 2201(a), and this Court

9 may grant declaratory relief, injunctive relief, and other relief against the Defendants under 28

10 U.S.C. §§ 2201-2202 and 5 U.S.C. §§ 705-706.

11

8. Venue is proper in this Court under 28 U.S.C. § 1391(e) because this is a judicial

12 district in which the Plaintiffs State of California and City of Oakland reside, and this action seeks

13 relief against federal agencies and officials acting in their official capacity.

14

INTRADISTRICT ASSIGNMENT

15

9. Under Civil Local Rules 3-5(b) and 3-2(c), Plaintiffs allege that there is no basis for

16 assignment of this action to any particular location or division of this Court.

17

PARTIES

18

10. Plaintiff State of California, by and through Attorney General Xavier Becerra, brings

19 this action as a sovereign state in the United States of America. The Attorney General is the chief

20 law officer of the State and has the authority to file civil actions to protect public rights and

21 interests. Cal. Const. art. V, § 13; Cal. Gov’t Code § 12511. This challenge is brought under the

22 Attorney General’s independent constitutional, statutory, and common-law authority to bring suit

23 and obtain relief on behalf of the State.

24

11. Plaintiff City of Los Angeles is a municipal corporation organized and existing under

25 the laws of the State of California.

26

12. Plaintiff City of Long Beach is a municipal corporation organized and existing under

27 the laws of the State of California.

28
3 First Amended Complaint

Case 5:20-cv-05169-LHK-RRC-EMC Document 28 Filed 08/24/20 Page 4 of 31

1

13. Plaintiff City of Oakland is a municipal corporation organized and existing under the

2 laws of the State of California.

3

14. Plaintiff LAUSD is a public entity duly existing under and by virtue of the laws of the

4 State of California and operating as a public school district providing educational services in the

5 County of Los Angeles, California.

6

15. Plaintiff County of Los Angeles is a political subdivision of the State of California.

7

16. Plaintiffs will suffer numerous, concrete harms from Defendants’ actions described in

8 this Complaint. Plaintiffs will likely lose at least one seat in the U.S. House of Representatives

9 and, thus, at least one presidential elector in the Electoral College. Plaintiffs’ share of political

10 power—and consequently, their share of federal funding—will be diminished. Plaintiffs’

11 congressional, state-level, and local redistricting efforts will be impaired. And the quality and

12 accuracy of census data will be harmed, further reducing the federal funding that Plaintiffs

13 receive and impeding their performance of critical government functions.

14

17. Defendant Donald J. Trump is the President of the United States of America and is

15 sued in his official capacity. President Trump is responsible for the actions and decisions that are

16 being challenged in this Complaint.

17

18. Defendant Wilbur L. Ross is the Secretary of the Department of Commerce and is

18 sued in his official capacity. Secretary Ross is responsible for fulfilling the Department of

19 Commerce’s duties under the Constitution and the Census Act.

20

19. Defendant Department of Commerce is a federal agency. The Department of

21 Commerce, led by Secretary Ross, oversees the Census Bureau, which is tasked with executing

22 the 2020 Census.

23

20. Defendant Dr. Steven Dillingham is the Director of the U.S. Census Bureau and is

24 sued in his official capacity. Dr. Dillingham’s duties include ensuring that the Bureau executes

25 the 2020 Census.

26

21. Defendant U.S. Census Bureau is an agency within, and under the jurisdiction of, the

27 Department of Commerce. The Bureau is responsible for planning and executing the decennial

28 census.

4 First Amended Complaint

Case 5:20-cv-05169-LHK-RRC-EMC Document 28 Filed 08/24/20 Page 5 of 31

1

BACKGROUND

2 I. LEGAL BACKGROUND

3

22. In every census since 1790, the United States has counted all of its residents,

4 including for the purpose of apportioning the U.S. House of Representatives, regardless of

5 residents’ citizenship or immigration status.1 This practice, consistently followed for well over

6 two centuries, is required by constitutional and statutory mandates.

7

23. The U.S. Constitution provides Congress with the power and responsibility to execute

8 the decennial census for the purpose of apportioning the U.S. House of Representatives. In

9 Article I, the Constitution provides, in relevant part, “Representatives . . . shall be apportioned

10 among the several States . . . according to their respective Numbers.” U.S. Const. art I, § 2, cl. 3.

11 It goes on to state that “[t]he actual enumerations shall be made within three Years after the first

12 Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in

13 such Manner as they shall by Law direct.” Id.

14

24. The Fourteenth Amendment of the U.S. Constitution also governs the census count

15 and its role in apportioning the U.S. House of Representatives. Section 2 of the Fourteenth

16 Amendment provides, in relevant part, “Representatives shall be apportioned among the several

17 States according to their respective numbers, counting the whole number of persons in each State,

18 excluding Indians not taxed.” U.S. Const. amend. XIV, § 2 (emphasis added).

19

25. In Title 13 of the United States Code, also known as the Census Act, Congress

20 delegated to the Secretary of Commerce the responsibility for conducting the Census, 13 U.S.C.

21 § 141(a), and created the U.S. Census Bureau within the Department of Commerce, to which the

22 Secretary may delegate his Census Act duties, 13 U.S.C. §§ 2, 4.

23

26. The Census Act also governs the Secretary’s reporting of the census apportionment

24 count addressed in Article I and the Fourteenth Amendment of the Constitution. It requires the

25 1 This statement is subject to two qualifications, explicit in the Constitution, that are
26 historically important, but do not relate to the counting of undocumented immigrants in 2020: the Three-Fifths Clause that was effectively nullified by the Fourteenth Amendment, and the “Indians
27 not taxed” provision, which is generally not recognized. The inclusion of two express qualifications (one of which was subsequently nullified) reinforces the impropriety of the
28 executive branch’s attempt to add an unenumerated qualification.
5
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1 Secretary to report to the President “[t]he tabulation of total population by States . . . as required

2 for the apportionment of Representatives in Congress among the several States.” 13 U.S.C.

3 § 141(b) (emphasis added).

4

27. In turn, the President “shall transmit to the Congress a statement showing the whole

5 number of persons in each State, excluding Indians not taxed, as ascertained under the . . .

6 decennial census of the population, and the number of Representatives to which each State would

7 be entitled under an apportionment of the then existing number of Representatives by the . . .

8 method of equal proportions.” 2 U.S.C. § 2a(a) (emphasis added).

9

28. The Supreme Court and other courts have also made clear that the Fourteenth

10 Amendment requires the apportionment of Representatives based on the “total population” in

11 each state. See Evenwel, 136 S. Ct. at 1127-29; see also Fed’n for Am. Immigration Reform v.

12 Klutznick, 486 F. Supp. 564, 576-78 (D.D.C. 1980) (three-judge court) (the Constitution “requires

13 the counting of the ‘whole number of persons’ for apportionment purposes, and while illegal

14 aliens were not a component of the population at the time the Constitution was adopted, they are

15 clearly ‘persons’”); New York v. Dep’t of Commerce, 351 F. Supp. 3d 502, 514 (S.D.N.Y. 2018)

16 (reversed in part on other grounds) (“the Constitution mandates that every ten years the federal

17 government endeavor to count every single person residing in the United States, whether citizen

18 or noncitizen, whether living here with legal status or without,” and “[t]he population count

19 derived from that effort is used . . . to apportion Representatives among the states”).

20

29. The Census Bureau similarly recognizes that “[a]pportionment is based on the

21 resident population, plus a count of overseas federal employees, for each of the 50 states.” Final

22 2020 Census Residence Criteria and Residence Situations, 83 Fed. Reg. 5525, 5526 n.1 (Feb. 8,

23 2018). That is why the Census Bureau promulgated a rule requiring all residents of the United

24 States, including all “foreign citizens,” to be counted in the 2020 Census. Id. at 5533. This rule,

25 which was adopted in accordance with the notice-and-comment rulemaking process, is known as

26 the “Residence Rule.” The Residence Rule is designed to ensure that the Census Bureau counts

27 all U.S. residents at their “usual residence”—“the place where a person lives and sleeps most of

28 the time.” Id. at 5526.
6

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1

30. The Secretary of Commerce himself has reiterated to Congress, while under oath, the

2 established rule that all residents must be counted. On March 14, 2019, the Secretary testified,

3 “The constitutional mandate, sir, for the census is to try to count every person residing in the U.S.

4 at their place of residence on the dates when the census is conducted.” Hearing Before the H.

5 Comm. on Oversight & Reform, 116th Cong. 31 (Mar. 14, 2019). He further testified, “The

6 Department of Commerce is fully committed to administering as complete and accurate [a]

7 decennial census as we can. We intend to try to count every person, taking all necessary actions

8 to do so.” Id.

9 II. THE ADMINISTRATION’S UNLAWFUL ATTEMPT TO ADD A CITIZENSHIP QUESTION TO THE 2020 CENSUS
10

11

31. The Memorandum at issue in this action is directly related to Defendants’ earlier

12 efforts to exclude immigrants from the census count by adding a question to the 2020 Census

13 questionnaire on citizenship status.

14

32. On March 26, 2018, setting aside decades of practice, Secretary Ross and the

15 Department of Commerce announced that a question on citizenship status would be added to the

16 2020 Census. The Secretary claimed that the decision was due to a request from the Department 17 of Justice for the purpose of obtaining data to enforce the Voting Rights Act.2

18

33. Lawsuits to vacate and enjoin the Secretary’s decision were filed by numerous

19 plaintiffs in three district courts (including a suit in this Court by Plaintiffs in this case). Each

20 court struck down Secretary Ross’s decision to add the citizenship question to the 2020 Census.

21 State of California v. Ross, 358 F. Supp. 3d 965, 973-76 (N.D. Cal. 2019) (vacated and remanded

22 on other grounds); New York v. Dep’t of Commerce, 351 F. Supp. 3d at 679-80; Kravitz v. Dep’t

23 of Commerce, 366 F. Supp. 3d 681, 691, 756 (D. Md. 2019) (vacated and remanded on other

24 grounds). Among many other reasons for enjoining the decision, each court found that the

25 Secretary’s reason for adding the citizenship question—to aid Voting Rights Act enforcement—

26 was pretextual.

27 2 In the three-and-a-half years of President Trump’s administration, the Department of
28 Justice has filed zero cases to enforce the Voting Rights Act.
7
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1

34. The Supreme Court agreed and affirmed the vacatur of the Secretary’s decision.

2 Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2576 (2019). As a result, no citizenship

3 question appears on the 2020 Census questionnaire.

4

35. The citizenship question litigation before this Court resulted in numerous findings

5 that are relevant to this case. Among other findings of injury, the Court determined that adding a

6 citizenship question to the 2020 Census would cause a disproportionate undercount of Plaintiffs’

7 residents, which, in turn would create “a substantial risk that California will lose its fair share of

8 political representation in Congress, and by extension, the Electoral College,” cause Plaintiffs to

9 lose federal funding, require Plaintiffs to expend funds to mitigate the effects of the citizenship

10 question, and harm the quality of the census data. State of California v. Ross, 358 F. Supp. 3d at

11 992-93, 1003-1005.

12 III. PRESIDENT TRUMP ORDERS FEDERAL AGENCIES TO ASSIST THE CENSUS BUREAU’S COLLECTION OF CITIZENSHIP DATA FROM GOVERNMENT RECORDS
13

14

36. On June 11, 2019, President Trump held a press conference in the White House Rose

15 Garden to announce that, following the Supreme Court’s decision in the citizenship question

16 litigation, he would discontinue his efforts to add the question to the 2020 Census. He also

17 announced, however, that he was issuing an executive order on the Census Bureau’s collection of

18 citizenship data.

19

37. Accordingly, on June 11, 2019, President Trump issued Executive Order 13880,

20 “Collecting Information About Citizenship Status in Connection With the Decennial Census.” 84

21 Fed. Reg. 33,821. In that order, the President stated, “we shall ensure that accurate citizenship

22 data is compiled in connection with the census by other means.” Id. He noted that the Secretary

23 of Commerce had already directed the Census Bureau “to further enhance its administrative

24 record data sets” and “to obtain as many additional Federal and state administrative records as

25 possible.” Id. To facilitate this effort, the President therefore ordered all federal agencies to

26 “promptly provide the [Commerce] Department the maximum assistance permissible, consistent

27 with law, in determining the number of citizens, non-citizens, and illegal aliens in the country,

28
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1 including by providing any access that the Department may request to administrative records that

2 may be useful in accomplishing that objective.” Id. at 33,824.

3 IV. THE JULY 21, 2020 PRESIDENTIAL MEMORANDUM TO EXCLUDE UNDOCUMENTED IMMIGRANTS FROM THE APPORTIONMENT COUNT
4

5

38. On July 21, 2020, Defendant Trump issued a Presidential Memorandum to the

6 Secretary of Commerce entitled, “Excluding Illegal Aliens From the Apportionment Base

7 Following the 2020 Census,” 85 Fed. Reg. 44,679 (July 21, 2020), and an accompanying

8 statement. See Ex. 2. The statement began:

9

Last summer in the Rose Garden, I told the American people that

I would not back down in my effort to determine the citizenship

10

status of the United States population. Today, I am following

through on that commitment by directing the Secretary of

11

Commerce to exclude illegal aliens from the apportionment base

following the 2020 census. 12

13 Id.

14

39. The Memorandum incorrectly asserts that “[t]he Constitution does not specifically

15 define which persons must be included in the apportionment base,” that the phrase “persons in

16 each state” has been interpreted to mean “inhabitants,” that the scope of the term “inhabitants”

17 requires “the exercise of judgment,” and that the President purportedly has discretion to exercise

18 that judgment to exclude entire categories of persons who reside in the United States. 85 Fed.

19 Reg. at 44,679.

20

40. On this asserted basis, the Memorandum declares that for reapportionment following

21 the 2020 Census, “it is the policy of the United States to exclude from the apportionment base

22 aliens who are not in a lawful immigration status under the Immigration and Nationality Act, as

23 amended (8 U.S.C. 1101 et seq.), to the maximum extent feasible and consistent with the

24 discretion delegated to the executive branch.” Id. at 44,680.

25

41. The Memorandum then directs the Secretary of Commerce and the Department of

26 Commerce (and, through them, the Census Bureau) to take steps to allow the President to exclude

27 undocumented immigrants in his apportionment report to Congress issued under 2 U.S.C. § 2(a).

28 Id. This includes, but is not limited to, “provid[ing] information” in the report that the Secretary
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1 must provide to the President under 13 U.S.C. § 141(b) that will “permit[] the President” to

2 exclude undocumented immigrants in calculating the number of U.S. House seats to which each

3 state is entitled. Id.

4

42. Upon information and belief, following receipt of the Memorandum, the

5 Department of Commerce has issued (or will imminently issue) directives to the Census Bureau,

6 constituting final agency action, to implement the policy of excluding undocumented immigrants

7 from the census count used for congressional apportionment, as set forth in the Memorandum.

8

43. Defendants cannot reliably exclude undocumented immigrants from the

9 apportionment count. Even before the Memorandum issued, the Census Bureau’s head of field

10 operations acknowledged that the Bureau will be unable to meet its statutory deadline to report

11 the census count. And just months ago, the federal government represented in separate litigation

12 that there is a “lack of accurate estimates of the resident undocumented population” on a state-by-

13 state basis.3

14

44. Indeed, the federal government admits that it has not yet formulated a methodology

15 for how to exclude undocumented immigrants from the apportionment count. It has suggested

16 that it may be required to use statistical modeling to comply with the Memorandum. Defendants

17 have not articulated how such statistical modeling will comport with their constitutional

18 obligation to conduct an “actual Enumeration,” U.S. Const. art. 1, § 2, cl. 3, or their obligations

19 under the Census Act, see 13 U.S.C. § 195; see also Dep’t of Commerce v. U.S. House of

20 Representatives, 525 U.S. 316, 342 (1999) (“the Census Act prohibits the use of sampling for

21 apportionment purposes”).

22 V. PLAINTIFFS WILL BE HARMED BY THE EXCLUSION OF UNDOCUMENTED IMMIGRANTS FROM THE CENSUS APPORTIONMENT COUNT
23

24

45. Plaintiffs each have a high number and percentage of residents who are

25 undocumented immigrants, as compared to other states and localities. These residents enrich

26 Plaintiffs’ communities, support their economies, and pay taxes. The Memorandum and the

27

3 Decl. of Census Bureau Senior Advisor Enrique Lamas, Defs.’ Supp. Rule 26(a)(1)

Disclosures and Rule 26(a)(2)(C) Disclosures, Alabama v. Dep’t of Commerce, No. 2:18-cv28 00772-RDP (N.D. Ala. Mar. 13, 2020).

10

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1 exclusion of undocumented immigrants from the census apportionment count will cause

2 numerous harms to Plaintiffs. The harms are due both to the apportionment consequences

3 themselves, and to the chilling effect that the Memorandum will have on the responses of

4 Plaintiffs’ residents to the still-ongoing 2020 Census. Defendants’ decision to exclude

5 undocumented immigrants from the apportionment count was announced just weeks before

6 Census Bureau enumerators were scheduled to go into the field to encourage households to

7 respond to the census, creating confusion and further increasing the risk of a differential

8 undercount harmful to Plaintiffs.

9

46. The Memorandum and the exclusion of undocumented immigrants from the census

10 apportionment count will likely cause Plaintiffs to lose one or more seats in the U.S. House of

11 Representatives and, consequently, one or more electors in the Electoral College. President

12 Trump expressly states in the Memorandum that this is a primary purpose of excluding

13 undocumented immigrants from the apportionment count:

14

Current estimates suggest that one State is home to more than 2.2

million illegal aliens, constituting more than 6 percent of the

15

State’s entire population. Including these illegal aliens in the

population of the State for the purpose of apportionment could

16

result in the allocation of two or three more congressional seats

than would otherwise be allocated. 17

18 85 Fed. Reg. at 44,680. Upon information and belief, the State referred to in this passage is the

19 State of California.

20

47. The Memorandum and the exclusion of undocumented immigrants from the census

21 apportionment count will likely cause Plaintiffs to lose federal funding, due to both Plaintiffs’ loss

22 of political power in Congress and the differential undercount of Plaintiffs’ residents. A complete

23 and accurate count of all persons is critical to determine grant amounts provided to states and

24 localities for various federal programs.

25

48. The Memorandum and the exclusion of undocumented immigrants from the census

26 apportionment count will impair Plaintiffs’ congressional, state-level, and local redistricting

27 efforts. The exclusionary apportionment count and differential undercount will harm Plaintiffs’

28
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1 ability to redistrict based on the total number of residents in the state and to comply with

2 Plaintiffs’ related constitutional obligations for redistricting.

3

49. The Memorandum, the exclusion of undocumented immigrants from the census

4 apportionment count, and the resulting differential undercount of Plaintiffs’ residents will also

5 harm the quality and accuracy of census data, including data on resident characteristics. This

6 harm to the data will impede Plaintiffs’ performance of critical government functions.

7

50. Finally, the Memorandum, the exclusion of undocumented immigrants from the

8 census apportionment count, and the resulting differential undercount of Plaintiffs’ residents have

9 required, and imminently will require, Plaintiffs to expend additional resources, including time

10 and money, in order to mitigate the differential undercount.

11

FIRST CLAIM FOR RELIEF

12 VIOLATION OF ACTUAL ENUMERATION AND APPORTIONMENT MANDATES (U.S. Const. art. I, § 2, cl. 3; U.S. Const. amend. XIV, § 2)
13

14

51. Plaintiffs re-allege and incorporate herein by reference each and every allegation and

15 paragraph set forth previously.

16

52. The Constitution requires the “actual Enumeration” of all persons in each state every

17 ten years. U.S. Const. art. I, § 2, cl. 3.

18

53. The Fourteenth Amendment requires that “Representatives shall be apportioned

19 among the several States according to their respective numbers, counting the whole number of

20 persons in each State.” U.S. Const. amend. XIV, § 2.

21

54. Undocumented immigrants are recognized as persons under the Fourteenth

22 Amendment. Plyler v. Doe, 457 U.S. 202, 210 (1982).

23

55. Defying these constitutional mandates to count all persons, including undocumented

24 immigrants, for the purpose of apportionment, the Memorandum declares that “it is the policy of

25 the United States to exclude from the apportionment base” undocumented immigrants. 85 Fed.

26 Reg. at 44,680. The Memorandum further instructs the Secretary of Commerce “to provide

27 information permitting the President” to implement this unconstitutional policy. This policy, and

28
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1 any action Defendants take to further the policy, violates the Constitution’s Enumeration Clause

2 and the Apportionment Clause of the Fourteenth Amendment.

3

56. Defendants’ violations of the Enumeration Clause and the Apportionment Clause

4 cause ongoing, irreparable harm to Plaintiffs and their residents, including the denial of

5 California’s proportionate share of congressional representatives and Electoral College electors.

6

SECOND CLAIM FOR RELIEF

7

VIOLATION OF SEPARATION OF POWERS

(U.S. Const. art. I, § 1; U.S. Const. art. II, § 3) 8

9

57. Plaintiffs re-allege and incorporate herein by reference each and every allegation and

10 paragraph set forth previously.

11

58. Article I, Section 1 of the Constitution enumerates that “[a]ll legislative Powers

12 herein granted shall be vested in [the] Congress.”

13

59. Article II, Section 3 of the Constitution requires the President to “take Care that the

14 Laws be faithfully executed.”

15

60. The Constitution’s Enumeration Clause, as amended by the Fourteenth Amendment,

16 “vests Congress with virtually unlimited discretion in conducting the decennial ‘actual

17 Enumeration.’” Dep’t of Commerce v. New York, 139 S. Ct. at 2566 (quoting Wisconsin v. City of

18 New York, 517 U.S. 1, 19 (1996)).

19

61. Within nine months of the census date, Congress requires the Secretary to report to

20 the President “[t]he tabulation of total population by States . . . as required for the apportionment

21 of Representatives in Congress among the several States . . . .” 13 U.S.C. § 141(b). Based on

22 that tabulation, Congress mandates that the President “shall transmit to the Congress a statement

23 showing the whole number of persons in each State . . . and the number of Representatives to

24 which each State would be entitled under an apportionment” calculated by “the method of equal

25 proportions.” 2 U.S.C. § 2a(a).

26

62. Congress did not authorize the President to exclude undocumented immigrants from

27 the apportionment base. Yet the Memorandum proclaims that when the President calculates “the

28 number of Representatives to which each State would be entitled” and “transmits to the Congress
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1 a statement” providing that calculation, he will exclude undocumented immigrants from the

2 apportionment base in disregard of the congressional mandate in 2 U.S.C. § 2a(a). 85 Fed. Reg.

3 at 44,680.

4

63. Under the separation of powers, the executive branch “may not decline to follow a

5 statutory mandate . . . simply because of policy objections. In re Aiken Cty., 725 F.3d 255, 259

6 (D.C. 2013). The President’s unilateral exclusion of undocumented immigrants from the

7 apportionment base is “incompatible” with Congress’s will. See Youngstown Sheet & Tube Co. v.

8 Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).

9

64. Nor has Congress delegated to the President the authority to take the census or to

10 dictate what is included in the Secretary’s report to him. By requiring the Secretary, in preparing

11 his report to the President, to “take all appropriate action” to implement the Memorandum’s

12 unconstitutional policy of excluding undocumented immigrants from the apportionment base, and

13 to include in the report estimates of the number of undocumented immigrants in each state, 85

14 Fed. Reg. at 44,680, the President disregards Congress’s intent in the Census Act that all persons

15 be counted in the apportionment. See Youngstown, 343 U.S. at 637 (Jackson, J., concurring).

16

65. When the President usurps Congress’s authority in this manner, “his power is at its

17 lowest ebb,” id., and he has failed his duty to “take Care that the Laws be faithfully executed,”

18 U.S. Const. art. II, § 3. The Memorandum thus violates the Constitution’s separation of powers.

19

66. The President’s violations of separation of powers principles cause ongoing,

20 irreparable harm to Plaintiffs and their residents, including the denial of California’s

21 proportionate share of congressional representatives and Electoral College electors.

22

THIRD CLAIM FOR RELIEF

23

VIOLATION OF CENSUS ACT (ULTRA VIRES)

(2 U.S.C. § 2a(a); 13 U.S.C. § 141) 24

25

67. Plaintiffs re-allege and incorporate herein by reference each and every allegation and

26 paragraph set forth previously.

27

68. The Census Act requires the Secretary of Commerce to report to the President, within

28 nine months of the census date, “[t]he tabulation of total population by States . . . as required for
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1 the apportionment of Representatives in Congress among the several States . . . .” 13 U.S.C.

2 § 141(b). Based on that tabulation, the President “shall transmit to the Congress a statement

3 showing the whole number of persons in each State . . . and the number of Representatives to

4 which each State would be entitled under an apportionment” calculated by “the method of equal

5 proportions.” 2 U.S.C. § 2a(a).

6

69. To determine “[t]he tabulation of total population by States,” 13 U.S.C. § 141(b),

7 persons were counted at their “usual residence” under “the first enumeration Act and ha[ve] been

8 [so counted] by the Census Bureau ever since . . . .” Franklin v. Massachusetts, 505 U.S. 788,

9 804 (1992). The Census Bureau has adopted this methodology in its Residence Rule, which

10 requires that each person is counted in “the place where [the] person lives and sleeps most of the

11 time.” 83 Fed. Reg. at 5526.

12

70. Under the Residence Rule, “[c]itizens of foreign countries living in the United States”

13 are “[c]ounted at the U.S. residence where they live and sleep most of the time.” 83 Fed. Reg. at

14 5533. Undocumented immigrants are thus counted at their usual residence and included in the

15 tabulation of total population reported to the President. Id.

16

71. The Memorandum violates 13 U.S.C. § 141. It directs the Secretary, in preparing his

17 report to the President, to “take all appropriate action” to implement the Memorandum’s

18 unconstitutional policy of excluding undocumented immigrants from the apportionment base, and

19 to include in the report estimates of the number of undocumented immigrants in each state. These

20 directives violate 13 U.S.C. § 141’s requirements that the Secretary conduct an actual

21 Enumeration to determine the “total population by States”—including undocumented

22 immigrants—“as required for the apportionment of Representatives in Congress among the

23 several States,” and report only that tabulation to the President.

24

72. The Memorandum also violates 2 U.S.C. § 2a(a). It proclaims that when the

25 President calculates “the number of Representatives to which each State would be entitled” and

26 “transmits to the Congress a statement” providing that calculation, 2 U.S.C. § 2a(a), he will

27 exclude undocumented immigrants from the apportionment base. 85 Fed. Reg. at 44,680. This

28 policy violates 2 U.S.C. § 2a(a)’s requirements that the President use only the actual Enumeration
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1 of “the whole number of persons in each State” to calculate the apportionment of congressional

2 representatives, and to perform that calculation “by the . . . method of equal proportions.”

3

73. Neither the President nor an agency can take any action that exceeds the scope of

4 constitutional or statutory authority. See Youngstown, 343 U.S. at 588-89. By violating the

5 Census Act, the President and the Secretary act ultra vires.

6

74. Defendants’ violations of the Census Act cause ongoing, irreparable harm to

7 Plaintiffs and their residents, including the denial of California’s proportionate share of

8 congressional representatives and Electoral College electors.

9

FOURTH CLAIM FOR RELIEF

10

VIOLATION OF CENSUS ACT

(13 U.S.C. § 195) 11

12

75. Plaintifffs reallege and incorporate herein by reference each and every allegation and

13 paragraph set forth previously.

14

76. The Memorandum also violates the Census Act because it directs Defendants to

15 violate the prohibition in section 195 on the use of statistical sampling for determining the

16 apportionment count. See 13 U.S.C. § 195.

17

77. Section 195 states: “Except for the determination of population for purposes of

18 apportionment of Representatives in Congress among the several States, the Secretary shall, if he

19 considers it feasible, authorize the use of the statistical method known as ‘sampling’ in carrying

20 out the provisions of this title.”

21

78. The Supreme Court has determined that Section 195 “directly prohibits the use of

22 sampling in the determination of population for purposes of apportionment.” House of

23 Representatives, 525 U.S. at 338 (opinion of the Court).

24

79. The 2020 Census questionnaire contains no questions on citizenship or immigration

25 status, and thus, Defendants have taken no “actual enumeration,” see U.S. CONST. art. I, § 2, cl. 3,

26 of residents’ citizenship or immigration status.

27

28
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1

80. On information and belief, Defendants’ implementation of the Memorandum will

2 therefore likely require them to violate section 195 by using statistical sampling to determine a

3 census apportionment count that excludes undocumented immigrants.

4

81. Any such “sampling,” which seeks to extrapolate the features of an entire population

5 from a small segment thereof, is distinguishable from “imputation,” which simply seeks to fill in

6 missing data as part of an effort to count individuals one by one. See Utah v. Evans, 536 U.S.

7 452, 466-73 (2002).

8

82. Neither the President nor an agency can take any action that exceeds the scope of

9 constitutional or statutory authority. See Youngstown, 343 U.S. at 588-89. By violating the

10 Census Act, the President and the Secretary also act ultra vires.

11

83. Defendants’ violations of the Census Act cause ongoing, irreparable harm to

12 Plaintiffs and their residents, including the denial of California’s proportionate share of

13 congressional representatives and Electoral College electors.

14

FIFTH CLAIM FOR RELIEF

15

VIOLATION OF ADMINISTRATIVE PROCEDURE ACT

(Action Not in Accordance with Law in Violation of 5 U.S.C. § 706) 16

17

84. Plaintiffs re-allege and incorporate herein by reference each and every allegation and

18 paragraph set forth previously.

19

85. The Constitution’s Enumeration Clause, as amended by the Fourteenth Amendment,

20 is implemented through the Census Act. The Census Act requires the Secretary of Commerce to

21 report to the President, within nine months of the census date, “[t]he tabulation of total population

22 by States”—including undocumented immigrants—“as required for the apportionment of

23 Representatives in Congress among the several States . . . .” 13 U.S.C. § 141(b). Based on that

24 tabulation, the President “shall transmit to the Congress a statement showing the whole number of

25 persons in each State . . . and the number of Representatives to which each State would be entitled

26 under an apportionment” calculated by “the method of equal proportions.” 2 U.S.C. § 2a(a).

27

28
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1

86. The Administrative Procedure Act provides that a court must “hold unlawful and set

2 aside agency action” that is not in accordance with law, contrary to constitutional right, in excess

3 of statutory authority, or without observance of procedure required by law. 5 U.S.C. § 706(2).

4

87. The Memorandum’s policy of excluding undocumented immigrants from the

5 enumeration used for apportionment is not in accordance with and exceeds the President’s

6 authority under the Census Act, and it is contrary to the Enumeration Clause.

7

88. Upon information and belief, the Department of Commerce has directed or will direct

8 the Census Bureau, in a final agency action, to implement the Memorandum’s policy of excluding

9 undocumented immigrants from the enumeration used for apportionment, in violation of these

10 provisions of the Administrative Procedure Act.

11

89. Among the violations is Defendants’ failure to observe the Administrative Procedure

12 Act’s notice-and-comment rulemaking requirement before dispensing with the Census Bureau’s

13 long-established Residence Rule. Absent sufficient notice and comment, the Census Bureau is

14 prohibited from implementing the Memorandum’s unconstitutional policy of excluding

15 undocumented immigrants from the enumeration used for apportionment and superseding the

16 Residence Rule’s requirement to count all persons—including undocumented immigrants—“at

17 the U.S. residence where they live and sleep most of the time.” 83 Fed. Reg. at 5533.

18

90. Defendants have or imminently will also violate the Administrative Procedure Act to

19 the extent that, in order to exclude undocumented immigrants from the apportionment,

20 Defendants utilize any statistical method to that fails to comport with the constitutional obligation

21 to conduct an “actual Enumeration,” U.S. Const. art. 1, § 2, cl. 3, or obligations under the Census

22 Act.

23

91. The Secretary’s actions to implement the Memorandum’s policy are additional final

24 agency actions that violate these provisions of the Administrative Procedure Act.

25

92. Defendants’ violations of the Administrative Procedure Act cause ongoing,

26 irreparable harm to Plaintiffs and their residents, including the denial of California’s

27 proportionate share of congressional representatives and Electoral College electors.

28
18 First Amended Complaint

Case 5:20-cv-05169-LHK-RRC-EMC Document 28 Filed 08/24/20 Page 19 of 31

1

SIXTH CLAIM FOR RELIEF

2

VIOLATION OF ADMINISTRATIVE PROCEDURE ACT

(Action that Is Arbitrary and Capricious in Violation of 5 U.S.C. § 706)

3

4

93. Plaintiffs re-allege and incorporate herein by reference each and every allegation and

5 paragraph set forth previously.

6

94. The Constitution’s Enumeration Clause, as amended by the Fourteenth Amendment,

7 is implemented through the Census Act. The Census Act requires the Secretary of Commerce to

8 report to the President, within nine months of the census date, “[t]he tabulation of total population

9 by States”—including undocumented immigrants—“as required for the apportionment of

10 Representatives in Congress among the several States . . . .” 13 U.S.C. § 141(b). Based on that

11 tabulation, the President “shall transmit to the Congress a statement showing the whole number of

12 persons in each State . . . and the number of Representatives to which each State would be entitled

13 under an apportionment” calculated by “the method of equal proportions.” 2 U.S.C. § 2a(a).

14

95. The Administrative Procedure Act provides that a court must “hold unlawful and set

15 aside agency action that is arbitrary and capricious, an abuse of discretion, runs counter to the

16 evidence before the agency, or fails to consider an important aspect of the problem. 5 U.S.C.

17 § 706; Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983).

18

96. Upon information and belief, the Department of Commerce has directed or will direct

19 the Census Bureau, in a final agency action, to implement the Memorandum’s policy of excluding

20 undocumented immigrants from the enumeration used for apportionment, in violation of these

21 provisions of the Administrative Procedure Act.

22

97. Defendants act arbitrarily and capriciously because, among other things, they acted or

23 will imminently act without sufficient data, and without sufficient time to produce such data, to

24 determine the total number of undocumented immigrants in each state to exclude from the

25 apportionment base.

26

98. The Secretary’s actions to implement the Memorandum’s policy are additional final

27 agency actions that violate these provisions of the Administrative Procedure Act.

28
19 First Amended Complaint

Case 5:20-cv-05169-LHK-RRC-EMC Document 28 Filed 08/24/20 Page 20 of 31

1

99. Defendants’ violations of the Administrative Procedure Act cause ongoing,

2 irreparable harm to Plaintiffs and their residents, including the denial of California’s

3 proportionate share of congressional representatives and Electoral College electors.

4

SIXTH CLAIM FOR RELIEF

5

DECLARATORY RELIEF

(28 U.S.C. § 2201) 6

7

100. Plaintiffs re-allege and incorporate herein by reference each and every allegation and

8 paragraph set forth previously.

9

101. An actual controversy presently exists between Plaintiffs and Defendants about

10 whether the Constitution and Census Act require the apportionment base used to apportion

11 congressional representatives to include all persons counted in each state, including

12 undocumented immigrants.

13

102. Plaintiffs are entitled to a declaration that the Constitution and the Census Act require

14 the apportionment base used to apportion congressional representatives to include all persons

15 counted in each state, including undocumented immigrants.

16

PRAYER FOR RELIEF

17

WHEREFORE, Plaintiffs respectfully request that this Court:

18

1. Issue a declaration that Defendants’ decision to exclude undocumented immigrants

19 from the apportionment base following the 2020 Census, and any action to implement that

20 decision, violate the Constitution and laws of the United States;

21

2. Issue a declaration that Defendants’ decision to exclude undocumented immigrants

22 from the apportionment base following the 2020 Census, and any action to implement that

23 decision, violate the Administrative Procedure Act;

24

3. Issue a preliminary and permanent injunction enjoining Defendants and all those

25 acting in concert with them from excluding undocumented immigrants from the apportionment

26 base following the 2020 Census, or taking any action to implement that policy;

27

4. Issue a writ of mandamus compelling the Secretary of Commerce to tabulate and

28 report the total population by States under 13 U.S.C. § 141(b) based on the actual enumeration of
20 First Amended Complaint

Case 5:20-cv-05169-LHK-RRC-EMC Document 28 Filed 08/24/20 Page 21 of 31

1 the whole number of persons in each state, including undocumented immigrants, without

2 providing a report estimating the number of undocumented immigrants in each state;

3

5. Issue a writ of mandamus compelling the President to transmit to the Congress a

4 statement showing the whole number of persons in each State, including undocumented

5 immigrants, and the number of congressional representatives to which each State would be

6 entitled under an apportionment calculated by the method of equal proportions;

7

6. Award Plaintiffs costs, expenses, and reasonable attorney fees; and

8

7. Award such other relief as the Court deems just and proper.

9 Dated: August 24, 2020 10 11 12 13

Respectfully submitted,
XAVIER BECERRA Attorney General of California THOMAS S. PATTERSON Senior Assistant Attorney General ANTHONY R. HAKL Supervising Deputy Attorney General

14

/s/ R. Matthew Wise_______

15

GABRIELLE D. BOUTIN

R. MATTHEW WISE

16

Deputy Attorneys General

Attorneys for Plaintiff State of California 17

18 Dated: August 24, 2020 19 20 21 22 23 24 25

MIKE FEUER City Attorney for the City of Los Angeles
/s/ Valerie Flores _______ VALERIE FLORES, SBN 138572 Managing Senior Assistant City Attorney MICHAEL J. DUNDAS, SBN 226930 Deputy City Attorney 200 North Main Street, 7th Floor, MS 140 Los Angeles, CA 90012 Telephone: (213) 978-8130 Fax: (213) 978-8222 Email: Valerie.Flores@lacity.org

26 Dated: August 24, 2020
27
28

CHARLES PARKIN City Attorney for the City of Long Beach
/s/ Charles Parkin _______
21
First Amended Complaint

Case 5:20-cv-05169-LHK-RRC-EMC Document 28 Filed 08/24/20 Page 22 of 31

1 2 3 4 5 Dated: July 28, 2020 6 7 8 9 10 11 12 13 Dated: July 28, 2020 14 15 16 17 18 19 20 21 Dated: July 28, 2020 22 23 24 25 26 27 28

SBN 159162 333 W. Ocean Blvd., 11th Floor Long Beach CA, 90802 Telephone: (562) 570-2200 Fax: (562) 436-1579 Email: Charles.Parkin@longbeach.gov
BARBARA J. PARKER City Attorney for the City of Oakland
/s/ Maria Bee _______ MARIA BEE, SBN 167716 Chief Assistant City Attorney MALIA MCPHERSON Deputy City Attorney City Hall, 6th Floor 1 Frank Ogawa Plaza Oakland, California 94612 Telephone: (510) 238-3601 Fax: (510) 238-6500 Email: mbee@oaklandcityattorney.org
DANNIS WOLIVER KELLEY
/s/ Sue Ann Salmon Evans Sue Ann Salmon Evans, SBN 151562 Keith A. Yeomans, SBN 245600 115 Pine Avenue, Suite 500 Long Beach, CA 90802 Telephone: 562.366.8500 Facsimile: 562.366.8505 sevans@DWKesq.com kyeomans@DWKesq.com Attorneys for Los Angeles United School District
/s David I. Holtzman_______ DAVID I. HOLTZMAN, SBN 299287 DANIEL P. KAPPES JACQUELINE N. HARVEY HOLLAND & KNIGHT LLP 50 California Street, 28th Floor San Francisco, CA 94111 Telephone: (415) 743-6970 Fax: (415) 743-6910 Email: david.holtzman@hklaw.com Attorneys for Plaintiff County of Los Angeles
22
First Amended Complaint

Case 5:20-cv-05169-LHK-RRC-EMC Document 28 Filed 08/24/20 Page 23 of 31

1

ATTESTATION

2

I, R. Matthew Wise, am the ECF user whose user ID and password authorized the filing of

3 this document. Under Civil L.R. 5-1(i)(3), I attest that all signatories to this document have

4 concurred in this filing.

5 DATED: August 24, 2020

/s/ R. Matthew Wise

6

R. Matthew Wise

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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28
23 First Amended Complaint

Case 5:20-cv-05169-LHK-RRC-EMC Document 28 Filed 08/24/20 Page 24 of 31
EXHIBIT 1

. ~,.-~-9Case 5:20-cv-05169-LHK-RRC-EMC Document 28 Filed 08/24/20 Page 25 of 31

,.... .v ...,.,... .

•

c,o

44679

Federal Register Vol. 85, No. 142 Thursday, Iu ly 23, 2020

Presidential Documents

Title 3-
The President

Memorandum of July 21, 2020
Excluding Illegal Aliens From the Apportionment" Base Following the 2020 Census

Memorandum for the Secretary of Commerce
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
Section 1. Background. In order to apportion Representatives among the States, the Constitution requires the enumeration of the population of the United States every 10 years and grants the Congress the power and discretion to direct the manner in which this decennial census is conducted (U.S. Const. art. I, sec. 2, cl. 3). The Congress has charged the Secretary of Commerce (the Secretary) with directing the conduct of the decennial census in such form and content as the Secretary may determine (13 U.S.C. 141(a)). By the direction of the Congress, the Secretary then transmits to the President the report of his tabulation of total population for the apportionment of Representatives in the Congress (13 U.S.C. 141(b)). The President, by law, makes the final determination regarding the "whole number of persons in each State," which determines the number of Representatives to be apportioned to each State, and transmits these determinations and accompanying census data to the Congress (2 U.S.C. 2a(a)). The Congress has provided that it is "the President's personal transmittal of the report to Congress" that "settles the apportionment" of Representatives among the States, and the President's discretion to settle the apportionment is more than "ceremonial or ministerial" and is essential "to the integrity of the process" (Franklin v. Massachusetts, 505 U.S. 788, 799, and 800 (1992)).
The Constitution does not specifically define which persons must be i~cluded in the apportionment base. Although the Constitution requires the " persons in each. State, excluding Indians not taxed," to be enumerated in the census, that requirement has never been understood to include in the apportionment base every individual physically present within a State's boundaries at the time of the census. Instead, the term " persons in each State" has been interpreted to mean that only the "inha bitants" of each State sh9uld be included. Determining which persons should be considered "inhabitants" for the purpose of apportionment requires the exercise of judgment. For examplfl, aliens who are only temporarily in the United States, such as for business or tourism, and certain foreign diplomatic personnel are "persons" who have been excluded from the apportionment base in past censuses. Conversely, the Constitution also has never been understood to exclude every person who is not physically "in" a State at the time of the census. For example, overseas Federal personnel have, at various times, been included in and excluded from the populations of the States in which they maintai_ned their homes of record. The discretion delegated to the executive branch to determine who qualifies as an "inhabitant" includes authority to exclude from the apportionment base aliens who are not in a lawful immigration status.

Case 5:20-cv-05169-LHK-RRC-EMC Document 28 Filed 08/24/20 Page 26 of 31

44680

Federal Regis ter/ Vol. 85 , No. 142 / Thursday, July 23, 2020 / Presidential Documents
In Executive Order 13880 of July 11, 2019 (Collecting Information About Citizenship Status in Connection With the Decennial Census}, I instructed executive departments and agencies to share information with the Department of Commerce, to the extent permissible and consistent with law, to allow the Secretary to obtain accurate data on the number of citizens, non-citizens, and illegal aliens in the country. As the Attorney General and I explained at the time that order was signed, data on illegal aliens could be relevant for the ·purpose of conducting the apportionment, and we intended to examine that issue.
Sec. 2. Policy. For the purpose of the reapportionment of Representatives following the 2020 census, it is the policy of the United States to .exclude from the apportionment base aliens who are not in a lawful immigration status under the Immigration and Nationality Act, as amended (8 U.S.C. 1101 et. seq.}, to the maximum extent feasible and consistent with the discretion delegated to the executive branch. Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Government. Affording congressional representation, and therefore formal political influence, to States on account of the presence within their borders of aliens who have not followed the steps to secure a lawful immigration status under our laws undermines those principles. Many of these aliens entered the country illegally in the first place. Increasing congressional representation based on the presence of aliens who are not in a lawful immigration status would also create perverse incentives encouraging violations of Federal law. States adopting policies that encourage illegal aliens to enter this country and tha\ hobble Federal efforts to enforce the immigration laws passed by the Congress should not be rewarded with greater representation in the House of Representatives. Current estimates suggest that one State is home to more than 2.2 million illegal aliens, constituting more than 6 percent of the State's entire population. Including these illegal aliens in the population of the State for the purpose of apportionment could result in the allocation of two or three more congressional seats than would otherwise be allocated. .
I have accordingly determined that respect for the law and protection of the integrity of the democratic process warrant the exclusion of illegal aliens from the apportionment base, to the extent feasible and to the maximum extent of the President's discretion under the law.
Sec. 3. Excluding Illegal Aliens from the Apporlionment Base. In preparing his report to the President under section 141(b} of title 13, United States Code, the Secretary shall take all appropriate action, consistent with the Constitution and other applicable law, to provide information permitting the President, to the extent practicable, to exercise the President's discretion to carry out the policy set forth in section 2 of this memorandum. The Secretary shall also include in that report information tabulated according to the methodology set forth in Final 2020 Census Residence Criteria and Residence Situations, 83 FR 5525 (Feb. 8, 2018).
Sec. 4. General Provisions. (a} Nothing in this memorandum shall be construed to impair or otherwise affect:
(i} the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
[b) This memorandum shall be implemented consistent with ap'plicable law and subject to the availability of appropriations.

Case 5:20-cv-05169-LHK-RRC-EMC Document 28 Filed 08/24/20 Page 27 of 31

Federal Register / Vol. 85, No. 142 / Thursday, July 23, 2020 / Presidential Documents

44681

(c} This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

IFR Doc. 2020-16216 Filed 7-2 2- 20; Z:00 pmJ Billing cod e 3510-07-P

THE WHITE HOUSE, Washington, July 21, 2020

Case 5:20-cv-05169-LHK-RRC-EMC Document 28 Filed 08/24/20 Page 28 of 31
EXHIBIT 2

Statement from thCe Parseseid5en:t2R0e-gcavrd-i0ng5A1p6p9o-1LtioHnmKe-Rnt RI TChe-EWMhiCte HoDusoecumhttpesn:/t/w2w8w.wFhilteehdou0se8.g/2ov4//b2ri0efingPs-asgtaetem2e9ntso/sfta3te1ment-president-re...

STATEMENTS & RELEASES ·
Statelllent frolll the President Regarding Apportiontnent
IMMIGRATION Issued on: July 21, 2020
* * *
Last summer in the Rose Garden, I told the American people that I would not back down in my effort to determine the citizenship status of the United States
pop_ulation. Today, I am following through on that commitment by directing the
Secretary of Commerce to exclude illegal aliens from the apportionment base following the 2020 census.
The.re used to be a time when you could proudly declare, "I am a citizen of the United States." But now, the radical left is trying to erase the existence of this concept and conceal the number of illegal aliens in our country. This is all part of a broader left-· wing effort to erode the rights ~f Americans citizens, and I will not stand for it.
Today's action to exclude illegal aliens from the apportionment base reflects a better understanding of the Constitution and is consistent with the principles of our representative democracy. My Administration will not support giving congressional representation to aliens who enter or remain in the country unlawfully, because doing so would create perverse incentives and undermine our system of government. Just as we do not_give political power to people who are here

I of2

'7/27/2020, 9:14 PM

Statement from thCe aPrseesid5e:n2t 0Re-cgavr-d0in5g1A6p9po-rLtiHonKm-eRntRI TCh-eEWMhiCte HDouosecumhttepns:/t/w2w8w.wFhiilteedhou0s8e./g2o4v//b2ri0efinPgsa-sgtaetem3e0ntos/fst3at1ement-president-re...
temporarily, we should not give political power to people who should not be here at all. .
Under an Executive Order I signed last year, Federal departments and agencies hav~ been collecting the information needed to conduct an accurate census and inform responsible decisions about public policy, voting rights, and representation in Congress. Today's action further advances this effort and is another example of my Administration's commitment to faithfully representing the citizens of the United Stat€s and putting their interests first.

2 of2

7/27/2020, 9:14 PM

Case 5:20-cv-05169-LHK-RRC-EMC Document 28 Filed 08/24/20 Page 31 of 31

CERTIFICATE OF SERVICE

Case Name: State of California, et al. v. Donald J. Trump, et al.

No. 5:20-cv-05169-LHK

I hereby certify that on August 24, 2020, I electronically filed the following documents with the Clerk of the Court by using the CM/ECF system:
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
I declare under penalty of perjury under the laws of the State of California and the United States of America the foregoing is true and correct and that this declaration was executed on August 24, 2020, at Sacramento, California.

Eileen A. Ennis Declarant
SA2020302398 34346750.docx

/s/ Eileen A. Ennis Signature