Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 1 of 43
ADRMOP,CLOSED,RELATE
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:18−cv−02279−RS

City Of San Jose et al v. Ross et al Assigned to: Judge Richard Seeborg Demand: $0 Relate Case Case: 3:18−cv−01865−RS Case in other court: 19−15457 Cause: 05:702 Administrative Procedure Act
Plaintiff
City Of San Jose

Date Filed: 04/17/2018 Date Terminated: 03/13/2019 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant
represented by John Frederick Libby Manatt Phelps and Phillips 11355 West Olympic Boulevard Los Angeles, CA 90064−1614 (310) 312−4000 Fax: (310) 312−4224 Email: jlibby@manatt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Claude Case Manatt, Phelps, and Phillips 7 Times Square New York, NY 10036 212−790−4501 Email: acase@manatt.com ATTORNEY TO BE NOTICED
Dorian Lawrence Spence Lawyers Committee for Civil Rights Under Law 1401 New York Avenue NW, Suite 400 Washington, DC 20005 (202) 662−8324 Fax: (202) 783−0857 Email: dspence@lawyerscommittee.org PRO HAC VICE ATTORNEY TO BE NOTICED
Emil Petrossian Manatt Phelps & Phillips LLP 11355 West Olympic Boulevard Los Angeles, CA 90064 (310) 312−4294 Fax: (310) 312−4224 Email: epetrossian@manatt.com ATTORNEY TO BE NOTICED
Ezra D Rosenberg Lawyers' Committee for Civil Rights Under Law 1500 K Street, NW Suite 900 Washington, DC 20005 (202) 662−8345 Fax: (202) 783−0857 Email: erosenberg@lawyerscommittee.org ATTORNEY TO BE NOTICED

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John W. McGuinness Manatt, Phelps & Phillips, LLP 11355 West Olympic Boulevard Los Angeles, CA 90064−1614 (310) 312−4000 Fax: (310) 312−4224 Email: JMcGuinness@manatt.com ATTORNEY TO BE NOTICED
Jon Greenbaum Lawyers' Committee for Civil Rights Under Law 1401 New York Avenue NW, Suite 400 Washington, DC 20005 (202) 662−8315 Fax: (202) 783−0857 Email: jgreenbaum@lawyerscommittee.org ATTORNEY TO BE NOTICED
Mario Cardona Manatt Phelps Phillips 11355 West Olympic Blvd. Los Angeles, CA 90064 310−312−4200 Fax: 310−312−4224 Email: mcardona@manatt.com ATTORNEY TO BE NOTICED
Mark Dale Rosenbaum Public Counsel 610 South Ardmore Avenue Los Angeles, CA 90005 (213) 385−2977 Fax: (213) 385−9089 Email: mrosenbaum@publiccounsel.org ATTORNEY TO BE NOTICED
Nora Valerie Frimann Office of the City Attorney, City of San Jose 200 East Santa Clara Street, 16th Floor San Jose, CA 95113−1905 (408) 535−1900 Fax: (408) 998−3131 Email: cao.main@sanjoseca.gov ATTORNEY TO BE NOTICED
Olufunmilayo O Showole Manatt, Phelps and Phillips, LLP 11355 W. Olympic Boulevard Los Angeles, CA 90064 310−312−4000 Fax: 310−312−4224 Email: oshowole@manatt.com ATTORNEY TO BE NOTICED
Salvador E Perez Manatt, Phelps and Phillips, LLP 11355 West Olympic Boulevard Los Angeles, CA 90064 (310) 312−4119 Email: seperez@manatt.com TERMINATED: 07/10/2019
Ana G. Guardado

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 3 of 43

Manatt, Phelps & Phillips, LLP One Embarcadero Center, 30th Floor San Francisco, CA 94111 (415) 291−7400 Fax: (415) 291−7474 Email: aguardado@manatt.com ATTORNEY TO BE NOTICED

Plaintiff Black Alliance For Just Immigration

represented by John Frederick Libby (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Claude Case (See above for address) ATTORNEY TO BE NOTICED

Dorian Lawrence Spence (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Emil Petrossian (See above for address) ATTORNEY TO BE NOTICED

Ezra D Rosenberg (See above for address) ATTORNEY TO BE NOTICED

John W. McGuinness (See above for address) ATTORNEY TO BE NOTICED

Jon Greenbaum (See above for address) ATTORNEY TO BE NOTICED

Mario Cardona (See above for address) ATTORNEY TO BE NOTICED

Mark Dale Rosenbaum (See above for address) ATTORNEY TO BE NOTICED

Nora Valerie Frimann (See above for address) ATTORNEY TO BE NOTICED

Olufunmilayo O Showole (See above for address) ATTORNEY TO BE NOTICED

Salvador E Perez (See above for address) TERMINATED: 07/10/2019

Ana G. Guardado (See above for address) ATTORNEY TO BE NOTICED

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 4 of 43

V.
Defendant
Wilbur L. Ross in his official capacity as Secretary of the U.S. Department of Commerce

represented by Carlotta Porter Wells US Department of Justice Civil Division/Federal Programs Branch P.O. Box 883 Washington, DC 20530 202−514−1903 Fax: 202−616−8470 Email: carlotta.wells@usdoj.gov TERMINATED: 07/10/2019 LEAD ATTORNEY
Carol Federighi United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20044 (202) 514−1903 Email: carol.federighi@usdoj.gov TERMINATED: 07/10/2019 LEAD ATTORNEY
Glenn M. Girdharry United States Department of Justice Civil Division 950 Pennsylvania Avenue NW, Room 3141 Washington, DC 20530 (202) 514−3301 Email: glenn.girdharry@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate Bailey US Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave NW Rm 6139 Washington, DC 20001 202−514−9239 Email: kate.bailey@usdoj.gov TERMINATED: 07/10/2019 LEAD ATTORNEY
Stephen Ehrlich United States Department of Justice Civil Divisions, Federal Programs Branch P.O. Box 883 Washington, DC 20044 (202) 305−9803 Email: stephen.ehrlich@usdoj.gov TERMINATED: 07/10/2019 LEAD ATTORNEY
Brett A. Shumate United States Department of Justice Civil Division 950 Pennsylvania Ave., NW Washington, DC 20530 202−514−2331 Email: brett.a.shumate@usdoj.gov TERMINATED: 07/10/2019

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Christopher A. Bates United States Department of Justice Civil Dvision 950 Pennsylvania Avenue NW, Room 3141 Washington, DC 20530 (202) 514−3307 Email: christopher.a.bates@usdoj.gov ATTORNEY TO BE NOTICED
Christopher Robert Bachner Reimer United States Department of Justice Civil Division 950 Pennsylvania Avenue NW, Room 3141 Washington, DC 20530 (202) 514−3301 Email: Christopher.r.reimer@usdoj.gov ATTORNEY TO BE NOTICED
Colin A. Kisor United States Department of Justice Civil Division 950 Pennsylvania Avenue NW, Room 3141 Washington, DC 20530 (202) 514−3301 Email: colin.kisor@usdoj.gov ATTORNEY TO BE NOTICED
Daniel A. Schiffer United States Department of Justice Civil Division 950 Pennsylvania Avenue NW, Room 3141 Washington, DC 20530 (202) 514−3301 Email: daniel.a.schiffer@usdoj.gov ATTORNEY TO BE NOTICED
David Michael Morrell United States Department of Justice Civil Division 950 Pennsylvania Avenue NW, Room 3141 Washington, DC 20530 (202) 514−2331 Email: david.m.morrell@usdoj.gov ATTORNEY TO BE NOTICED
Gerald Brinton Lucas 950 Pennsylvania Ave. NW Washington, DC 20530 202−305−7920 Email: brinton.lucas@usdoj.gov ATTORNEY TO BE NOTICED
Martin Tomlinson United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, DC 20001 202−353−4556 Fax: 202−616−8470

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 6 of 43

Email: martin.m.tomlinson@usdoj.gov TERMINATED: 07/10/2019

Defendant
United States Department of Commerce

represented by Carlotta Porter Wells (See above for address) TERMINATED: 07/10/2019 LEAD ATTORNEY

Carol Federighi (See above for address) TERMINATED: 07/10/2019 LEAD ATTORNEY

Glenn M. Girdharry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kate Bailey (See above for address) TERMINATED: 07/10/2019 LEAD ATTORNEY

Stephen Ehrlich (See above for address) TERMINATED: 07/10/2019 LEAD ATTORNEY

Brett A. Shumate (See above for address) TERMINATED: 07/10/2019

Christopher A. Bates (See above for address) ATTORNEY TO BE NOTICED

Christopher Robert Bachner Reimer (See above for address) ATTORNEY TO BE NOTICED

Colin A. Kisor (See above for address) ATTORNEY TO BE NOTICED

Daniel A. Schiffer (See above for address) ATTORNEY TO BE NOTICED

David Michael Morrell (See above for address) ATTORNEY TO BE NOTICED

Gerald Brinton Lucas (See above for address) ATTORNEY TO BE NOTICED

Marsha S. Edney Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Rm. 7148 Washington, DC 20530 (202) 514−4520

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 7 of 43

Email: marsha.edney@usdoj.gov TERMINATED: 07/10/2019 ATTORNEY TO BE NOTICED

Martin Tomlinson (See above for address) TERMINATED: 07/10/2019

Defendant
Ron Jarmin in his official capacity as Acting Director of the U.S. Census Bureau

represented by Carlotta Porter Wells (See above for address) TERMINATED: 07/10/2019 LEAD ATTORNEY

Carol Federighi (See above for address) TERMINATED: 07/10/2019 LEAD ATTORNEY

Glenn M. Girdharry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kate Bailey (See above for address) TERMINATED: 07/10/2019 LEAD ATTORNEY

Stephen Ehrlich (See above for address) TERMINATED: 07/10/2019 LEAD ATTORNEY

Brett A. Shumate (See above for address) TERMINATED: 07/10/2019

Christopher A. Bates (See above for address) ATTORNEY TO BE NOTICED

Christopher Robert Bachner Reimer (See above for address) ATTORNEY TO BE NOTICED

Daniel A. Schiffer (See above for address) ATTORNEY TO BE NOTICED

David Michael Morrell (See above for address) ATTORNEY TO BE NOTICED

Martin Tomlinson (See above for address) TERMINATED: 07/10/2019

Defendant United States Census Bureau

represented by Carlotta Porter Wells (See above for address) TERMINATED: 07/10/2019 LEAD ATTORNEY

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 8 of 43

Carol Federighi (See above for address) TERMINATED: 07/10/2019 LEAD ATTORNEY

Glenn M. Girdharry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kate Bailey (See above for address) TERMINATED: 07/10/2019 LEAD ATTORNEY

Stephen Ehrlich (See above for address) TERMINATED: 07/10/2019 LEAD ATTORNEY

Brett A. Shumate (See above for address) TERMINATED: 07/10/2019

Christopher A. Bates (See above for address) ATTORNEY TO BE NOTICED

Christopher Robert Bachner Reimer (See above for address) ATTORNEY TO BE NOTICED

Daniel A. Schiffer (See above for address) ATTORNEY TO BE NOTICED

David Michael Morrell (See above for address) ATTORNEY TO BE NOTICED

Gerald Brinton Lucas (See above for address) ATTORNEY TO BE NOTICED

Marsha S. Edney (See above for address) TERMINATED: 07/10/2019 ATTORNEY TO BE NOTICED

Martin Tomlinson (See above for address) TERMINATED: 07/10/2019

Amicus Project on Fair Representation

represented by Bryan Kipp Weir Consovoy McCarthy PLLC 1600 Wilson Boulevard, Suite 700 Arlington, VA 22209 (703) 243−9423 Email: bryan@consovoymccarthy.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

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Brian Schatz

represented by Elizabeth B. Wydra Constitutional Accountability Center 1200 18th Street, NW Suite 501 Washington, DC 20036 202 296 6889 Fax: 202 296 6895 Email: elizabeth@theusconstitution.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Michael F. Bennet

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Richard Blumenthal

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Cory A. Booker

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Ben Cardin

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Tammy Duckworth

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Richard Durbin

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Kamala D. Harris

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Mazie Hirono

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

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Bill Nelson

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Ron Wyden

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Carolyn Maloney

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Nanette Diaz Barragan

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Howard Berman

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Donald S. Beyer, Jr.

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Earl Blumenauer

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Anthony G. Brown

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Michael Capuano

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Salud O. Carbajal

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 11 of 43

Amicus Tony Cardenas

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Andre Carson

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Judy Chu

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus David N. Cicilline

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Yvette D. Clarke

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Wm. Lacy Clay

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Emanuel Cleaver, II

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus James Clyburn

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Steve Cohen

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Gerrold Connolly

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 12 of 43

Amicus Luis Correa
Amicus Joe Courtney
Amicus Joe Crowley
Amicus Henry Cuellar
Amicus Elijah E. Cummings
Amicus Danny K. Davis
Amicus Diana DeGette
Amicus John K. Delaney
Amicus Rosa L. DeLauro
Amicus Mark DeSaulnier

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
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

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 13 of 43

ATTORNEY TO BE NOTICED

Amicus Ted Deutch

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Debbie Dingell

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Keith Ellison

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Eliot L. Engel

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Adriano Espaillat

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Elizabeth Esty

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Bill Foster

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Lois Frankel

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Marcia L. Fudge

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Ruben Gallego

represented by Elizabeth B. Wydra (See above for address)

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 14 of 43

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Jimmy Gomez

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Gene Green

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Raul M. Grijalva

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Luis Gutierrez

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Colleen Hanabusa

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Alcee L. Hastings

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Steny Hoyer

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Sheila Jackson Lee

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Pramila Jayapal

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Hakeem Jeffries

represented by

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Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Henry C. "Hank" Johnson, Jr.

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Ro Khanna

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Ruben J. Kihuen

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Daniel T. Kildee

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus John B. Larson

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Brenda L. Lawrence

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Barbara Lee

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Patrol Officer John Lewis

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Zoe Lofgren

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Amicus Alan Lowenthal

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Nita Lowey

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Michelle Lujan Grisham

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Stephen F. Lynch

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Doris Matsui

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Betty McCollum

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus A. Donald McEachin

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus James P. McGovern

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Jerry McNerney

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Gregory W. Meeks

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Amicus Grace Meng
Amicus Gwen Moore
Amicus Constance Morella
Amicus Jerrold Nadler
Amicus Grace F. Napolitano
Amicus Rick Nolan
Amicus Donald Norcross
Amicus Eleanor Holmes Norton
Amicus Frank Pallone, Jr.
Amicus Jimmy Panetta

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
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

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ATTORNEY TO BE NOTICED

Amicus Bill Pascrell, Jr.

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Nancy Pelosi

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Ed Perlmutter

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Chellie Pingree

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Mark Pocan

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Jared Polis

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus John Porter

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus David E. Price

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Mike Quigley

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Jamie Raskin

represented by Elizabeth B. Wydra (See above for address)

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LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Kathleen M. Rice

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Jacky Rosen

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Lucille Roybal−Allard

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Bobby L. Rush

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Linda T. Sanchez

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus John Sarbanes

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Janice D. Schakowsky

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Claudine Schneider

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Jose Serrano

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Brad Sherman

represented by

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 20 of 43

Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Albio Sires

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus David Skaggs

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Adam Smith

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Peter Smith

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Darren Soto

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Jackie Speier

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Mark Takano

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Bennie G. Thompson

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Mike Thompson

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 21 of 43

Amicus Dina Titus

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Norma J. Torres

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Juan Vargas

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Filemon Vela

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Nydia M. Velazquez

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Tim Walz

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Debbie Wasserman Schultz

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Bonnie Watson Coleman

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Henry A. Waxman

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Peter Welch

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 22 of 43

Amicus John Yarmuth
Amicus The Leadership Conference on Civil and Human Rights
Amicus The Leadership Conference Education Fund
Amicus Muslim Advocates
Amicus The Brennan Center for Justice at NYU School of Law
Amicus National Coalition on Black Civic Participation
Amicus NALEO Educational Fund
Amicus Tech:NYC

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael A Mugmon Wilmer Cutler Pickering Hale & Dorr LLP One Front Street, Suite 3500 San Francisco, CA 94111 628 235−1006 Fax: 650 858−6100 Email: michael.mugmon@wilmerhale.com ATTORNEY TO BE NOTICED
represented by Michael A Mugmon (See above for address) ATTORNEY TO BE NOTICED
represented by Michael A Mugmon (See above for address) ATTORNEY TO BE NOTICED
represented by Michael A Mugmon (See above for address) ATTORNEY TO BE NOTICED
represented by Michael A Mugmon (See above for address) ATTORNEY TO BE NOTICED
represented by Michael A Mugmon (See above for address) ATTORNEY TO BE NOTICED
represented by Alexander H. Southwell Gibson, Dunn and Crutcher LLP 200 Park Avenue New York, NY 10166 212−351−4000 Fax: 212−351−4035 Email: asouthwell@gibsondunn.com ATTORNEY TO BE NOTICED
Julian Wolfe Kleinbrodt Gibson Dunn and Crutcher, LLP 555 Mission Street Suite 3000 San Francisco, CA 94105 415−393−8382 Email: JKleinbrodt@gibsondunn.com ATTORNEY TO BE NOTICED

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 23 of 43

Amicus Univision Communications Inc.
Amicus General Assembly
Amicus Topia
Amicus Minneapolis Regional Chamber of Commerce

Stuart F. Delery Gibson, Dunn and Crutcher LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036 (202) 887−3650 Email: sdelery@gibsondunn.com ATTORNEY TO BE NOTICED
represented by Alexander H. Southwell (See above for address) ATTORNEY TO BE NOTICED
Julian Wolfe Kleinbrodt (See above for address) ATTORNEY TO BE NOTICED
Stuart F. Delery (See above for address) ATTORNEY TO BE NOTICED
represented by Alexander H. Southwell (See above for address) ATTORNEY TO BE NOTICED
Julian Wolfe Kleinbrodt (See above for address) ATTORNEY TO BE NOTICED
Stuart F. Delery (See above for address) ATTORNEY TO BE NOTICED
represented by Alexander H. Southwell (See above for address) ATTORNEY TO BE NOTICED
Julian Wolfe Kleinbrodt (See above for address) ATTORNEY TO BE NOTICED
Stuart F. Delery (See above for address) ATTORNEY TO BE NOTICED
represented by Alexander H. Southwell (See above for address) ATTORNEY TO BE NOTICED
Julian Wolfe Kleinbrodt (See above for address) ATTORNEY TO BE NOTICED
Stuart F. Delery (See above for address) ATTORNEY TO BE NOTICED

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 24 of 43

Date Filed 04/17/2018
04/17/2018 04/17/2018 04/17/2018 04/17/2018
04/17/2018 04/17/2018 04/17/2018
04/18/2018 04/18/2018 04/18/2018 04/18/2018 04/20/2018 04/25/2018
04/25/2018

# Docket Text
1 COMPLAINT against Ron Jarmin, Wilbur L. Ross, United States Census Bureau, United States Department of Commerce ( Filing fee $ 400, receipt number 0971−12276478.). Filed byCity Of San Jose, Black Alliance For Just Immigration. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Civil Cover Sheet)(Guardado, Ana) (Filed on 4/17/2018) (Entered: 04/17/2018)
2 Certificate of Interested Entities by Black Alliance For Just Immigration, City Of San Jose (Guardado, Ana) (Filed on 4/17/2018) (Entered: 04/17/2018)
3 NOTICE of Appearance by Jon Greenbaum on behalf of plaintiffs (Greenbaum, Jon) (Filed on 4/17/2018) (Entered: 04/17/2018)
4 Proposed Summons. (Guardado, Ana) (Filed on 4/17/2018) (Entered: 04/17/2018)
5 Case assigned to Magistrate Judge Howard R. Lloyd.
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. Consent/Declination due by 5/1/2018. (srnS, COURT STAFF) (Filed on 4/17/2018) (Entered: 04/17/2018)
6 NOTICE of Appearance by John Frederick Libby on behalf of plaintiffs (Libby, John) (Filed on 4/17/2018) (Entered: 04/17/2018)
7 NOTICE of Appearance by John William McGuinness on behalf of plaintiffs (McGuinness, John) (Filed on 4/17/2018) (Entered: 04/17/2018)
8 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 7/10/2018. Initial Case Management Conference set for 7/17/2018 01:30 PM in San Jose, Courtroom 2, 5th Floor before Magistrate Judge Howard R Lloyd. (dhmS, COURT STAFF) (Filed on 4/17/2018) (Entered: 04/18/2018)
9 Summons Issued as to Wilbur L. Ross, U.S. Attorney and U.S. Attorney General (dhmS, COURT STAFF) (Filed on 4/18/2018) (Entered: 04/18/2018)
10 Summons Issued as to United States Department of Commerce, U.S. Attorney and U.S. Attorney General (dhmS, COURT STAFF) (Filed on 4/18/2018) (Entered: 04/18/2018)
11 Summons Issued as to Ron Jarmin, U.S. Attorney and U.S. Attorney General (dhmS, COURT STAFF) (Filed on 4/18/2018) (Entered: 04/18/2018)
12 Summons Issued as to United States Census Bureau, U.S. Attorney and U.S. Attorney General (dhmS, COURT STAFF) (Filed on 4/18/2018) (Entered: 04/18/2018)
13 NOTICE of Appearance by Emil Petrossian on behalf of plaintiffs (Petrossian, Emil) (Filed on 4/20/2018) (Entered: 04/20/2018)
14 ***INCORRECT EVENT SELECTED WHEN POSTING DOCUMENT*** CERTIFICATE OF SERVICE by City Of San Jose re 1 Complaint, Wilbur L. Ross, Jr., in his Official Capacity as Secretary of the U.S. Department of Commerce (Guardado, Ana) (Filed on 4/25/2018) Modified text on 4/26/2018 (dhmS, COURT STAFF). (Entered: 04/25/2018)
15 ***INCORRECT EVENT SELECTED WHEN POSTING DOCUMENT*** CERTIFICATE OF SERVICE by City Of San Jose re 1 Complaint, Ron Jarmin, in his Official Capacity as Acting Director of The U.S. Census Bureau (Guardado, Ana) (Filed on 4/25/2018) Modified text on 4/26/2018 (dhmS, COURT STAFF). (Entered: 04/25/2018)

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 25 of 43

04/25/2018 04/25/2018 04/26/2018
04/26/2018 04/26/2018 04/26/2018 04/26/2018 04/26/2018 04/27/2018 04/30/2018 04/30/2018 04/30/2018 04/30/2018

16 ***INCORRECT EVENT SELECTED WHEN POSTING DOCUMENT*** CERTIFICATE OF SERVICE by City Of San Jose re 1 Complaint, U.S. Census Bureau (Guardado, Ana) (Filed on 4/25/2018) Modified text on 4/26/2018 (dhmS, COURT STAFF). (Entered: 04/25/2018)
17 ***INCORRECT EVENT SELECTED WHEN POSTING DOCUMENT*** CERTIFICATE OF SERVICE by City Of San Jose re 1 Complaint, U.S. Department of Commerce (Guardado, Ana) (Filed on 4/25/2018) Modified text on 4/26/2018 (dhmS, COURT STAFF). (Entered: 04/25/2018)
Electronic filing error. Incorrect event used. [err101]Please re−file in its entirety using correct event Summons Returned Executed. Re: 14 Certificate of Service filed by City Of San Jose, 16 Certificate of Service filed by City Of San Jose, 15 Certificate of Service filed by City Of San Jose, 17 Certificate of Service filed by City Of San Jose (dhmS, COURT STAFF) (Filed on 4/26/2018) (Entered: 04/26/2018)
18 SUMMONS Returned Executed by City Of San Jose. Wilbur L. Ross served on 4/18/2018, answer due 5/9/2018. Wilbur L. Ross, Jr., in His Official Capacity as Secretary of the U.S. Department of Commerce (Guardado, Ana) (Filed on 4/26/2018) (Entered: 04/26/2018)
19 SUMMONS Returned Executed by City Of San Jose. United States Department of Commerce served on 4/18/2018, answer due 5/9/2018. U.S. Department of Commerce (Guardado, Ana) (Filed on 4/26/2018) (Entered: 04/26/2018)
20 SUMMONS Returned Executed by City Of San Jose. Ron Jarmin served on 4/18/2018, answer due 5/9/2018. Ron Jarmin in His Official Capacity as Acting Director of the U.S. Census Bureau (Guardado, Ana) (Filed on 4/26/2018) (Entered: 04/26/2018)
21 SUMMONS Returned Executed by City Of San Jose. United States Census Bureau served on 4/18/2018, answer due 5/9/2018. U.S. Census Bureau (Guardado, Ana) (Filed on 4/26/2018) (Entered: 04/26/2018)
22 First MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−12305435.) filed by Black Alliance For Just Immigration, City Of San Jose. (Attachments: # 1 Exhibit)(Rosenberg, Ezra) (Filed on 4/26/2018) (Entered: 04/26/2018)
23 Order granting 22 Motion for Pro Hac Vice. Signed by Magistrate Judge Howard R. Lloyd on 4/27/2018. (hrllc3S, COURT STAFF) (Filed on 4/27/2018) (Entered: 04/27/2018)
24 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−12311932.) filed by Black Alliance For Just Immigration, City Of San Jose. (Attachments: # 1 Attachment)(Spence, Dorian) (Filed on 4/30/2018) (Entered: 04/30/2018)
25 Application for Refund, Receipt Number 0971−12311786 by Black Alliance For Just Immigration, City Of San Jose. (Spence, Dorian) (Filed on 4/30/2018) (Entered: 04/30/2018)
26 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by City Of San Jose.. (Libby, John) (Filed on 4/30/2018) (Entered: 04/30/2018)
27 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.

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 26 of 43

05/01/2018 05/01/2018
05/03/2018 05/03/2018 05/15/2018 05/22/2018 05/22/2018 05/23/2018
05/24/2018 06/08/2018

This is a text only docket entry; there is no document associated with this notice. (pmc, COURT STAFF) (Filed on 4/30/2018) (Entered: 04/30/2018)
28 ORDER REASSIGNING CASE. Case reassigned to Judge Lucy H. Koh and Magistrate Judge Howard R. Lloyd remains as the referral judge for all further proceedings. This case is assigned to a judge who participates in the Cameras in the Courtroom Pilot Project. See General Order 65 and http://cand.uscourts.gov/cameras. Signed by Judge Executive Committee on 5/1/18. (Attachments: # 1 Notice of Eligibility for Video Recording)(cfeS, COURT STAFF) (Filed on 5/1/2018) (Entered: 05/01/2018)
29 **CLERK'S NOTICE FOLLOWING CASE REASSIGNMENT TO THE HONORABLE LUCY H. KOH** Following the case reassignment to Hon. Lucy H. Koh, an Initial Case Management Conference is set for 7/25/2018 at 2:00 PM in Courtroom 8, 4th floor, in San Jose, California. A Joint Case Management Conference Statement is due 7−days before the scheduled conference date. See Civil L.R. 16−9 and Civil L.R. 16−10(a). The Court does not issue a revised Initial Case Management Scheduling Order with ADR Deadlines. The parties shall familiarize themselves with the Scheduling Notes and Standing Orders for the Hon. Lucy H. Koh: http://cand.uscourts.gov/lhk. (This is a text only docket entry, there is no document associated with this notice.) (iym, COURT STAFF) (Filed on 5/1/2018) (Entered: 05/01/2018)
30 NOTICE of Appearance by Carol Federighi for Defendants (Federighi, Carol) (Filed on 5/3/2018) (Entered: 05/03/2018)
31 NOTICE of Appearance by Stephen Ehrlich (Ehrlich, Stephen) (Filed on 5/3/2018) (Entered: 05/03/2018)
32 CERTIFICATE OF SERVICE by Black Alliance For Just Immigration, City Of San Jose Re Administrative Motion to Consider Whether Cases Should be Related in Case No. 3:18−cv−01865 (Guardado, Ana) (Filed on 5/15/2018) (Entered: 05/15/2018)
33 ORDER RELATING CASE(S): C−18−1865 RS and C−18−2279 HRL.. Signed by Judge Richard Seeborg on 5/22/2018. (tlS, COURT STAFF) (Filed on 5/22/2018) (Entered: 05/22/2018)
34 ORDER REASSIGNING CASE. Case reassigned to Judge Richard Seeborg for all further proceedings. pursuant to Order Relating Cases. This case is assigned to a judge who participates in the Cameras in the Courtroom Pilot Project. See General Order 65 and http://cand.uscourts.gov/cameras. Judge Lucy H. Koh no longer assigned to the case. (Attachments: # 1 Notice of Eligibility for Video Recording) (bwS, COURT STAFF) (Filed on 5/22/2018) (Entered: 05/22/2018)
35 CLERK'S NOTICE RE: REASSIGNED CASE: You are notified that the Court has scheduled an Initial Case Management Conference before Judge Richard Seeborg upon reassignment. For a copy of Judge Seeborg's Standing Order and other information, please refer to the Court's website at www.cand.uscourts.gov. Parties or counsel may appear personally at 10:00 a.m. or file a request to appear by telephone at 11:00 a.m. If any party files such a request to appear by telephone, the Case Management Conference shall be moved to 11:00 a.m. to be held telephonically. All parties shall appear telephonically and must contact Court Conference at 866/582−6878 at least one week prior to the Conference.Joint Case Management Statement due by 6/21/2018. Initial Case Management Conference set for 6/28/2018 10:00 AM in San Francisco, Courtroom 03, 17th Floor.. (This is a text−only entry generated by the court. There is no document associated with this entry.) (tlS, COURT STAFF) (Filed on 5/23/2018) (Entered: 05/23/2018)
36 ORDER GRANTING APPLICATION FOR ADMISSION OF ATTORNEY PRO HAC VICE by Judge Richard Seeborg granting 24 Motion for Pro Hac Vice for attorney Dorian Lawrence Spence.(tlS, COURT STAFF) (Filed on 5/24/2018) (Entered: 05/24/2018)
37 NOTICE of Appearance by Salvador E Perez on behalf of plaintiffs (Perez, Salvador) (Filed on 6/8/2018) (Entered: 06/08/2018)

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 27 of 43

06/08/2018
06/11/2018
06/11/2018 06/11/2018 06/11/2018 06/11/2018 06/11/2018 06/12/2018 06/12/2018 06/12/2018 06/14/2018
06/14/2018 06/18/2018 06/18/2018 06/21/2018 06/21/2018

38 NOTICE by Ron Jarmin, Wilbur L. Ross, United States Census Bureau, United States Department of Commerce of Filing Administrative Record (Attachments: # 1 Certification of Administrative Record, # 2 Administrative Record Index, # 3 Administrative Record Part I, # 4 Administrative Record Part II, # 5 Administrative Record Part III)(Ehrlich, Stephen) (Filed on 6/8/2018) (Entered: 06/08/2018)
39 CLERK'S NOTICE CHANGING THE TIME ON INITIAL CASE MANAGEMENT CONFERENCE. Initial Case Management Conference previously set 10:00 am has been continued to 02:30 PM on 6/28/2018 in San Francisco, Courtroom 03, 17th Floor. (This is a text−only entry generated by the court. There is no document associated with this entry.) (cl, COURT STAFF) (Filed on 6/11/2018) (Entered: 06/11/2018)
40 ADR Clerk's Notice re: Non−Compliance with Court Order (ewh, COURT STAFF) (Filed on 6/11/2018) (Entered: 06/11/2018)
41 NOTICE of Appearance by Olufunmilayo O Showole (Showole, Olufunmilayo) (Filed on 6/11/2018) (Entered: 06/11/2018)
42 STIPULATION WITH PROPOSED ORDER −− Joint Request for Relief from Automatic Referral to ADR Multi−Option Program filed by Black Alliance For Just Immigration, City Of San Jose. (Showole, Olufunmilayo) (Filed on 6/11/2018) (Entered: 06/11/2018)
43 STIPULATION WITH PROPOSED ORDER −− Stipulation for Hearing and Briefing Deadlines Re: Discovery Outside the Administrative Record filed by Black Alliance For Just Immigration, City Of San Jose. (Showole, Olufunmilayo) (Filed on 6/11/2018) (Entered: 06/11/2018)
44 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Federighi, Carol) (Filed on 6/11/2018) (Entered: 06/11/2018)
45 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Showole, Olufunmilayo) (Filed on 6/12/2018) (Entered: 06/12/2018)
46 ORDER by Judge Richard Seeborg granting 42 Stipulation. (cl, COURT STAFF) (Filed on 6/12/2018) (Entered: 06/12/2018)
47 ORDER by Judge Richard Seeborg granting 43 Stipulation for hearing and briefing deadlines re: discovery outside the administrative record. (cl, COURT STAFF) (Filed on 6/12/2018) (Entered: 06/12/2018)
48 MOTION to Expand Discovery Beyond the Administrative Record filed by Black Alliance For Just Immigration, City Of San Jose. Responses due by 6/21/2018. (Attachments: # 1 Declaration of John F. Libby in Support of Motion, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G)(Libby, John) (Filed on 6/14/2018) (Entered: 06/14/2018)
49 Brief in Support of Review on the Administrative Record filed byRon Jarmin, Wilbur L. Ross, United States Census Bureau, United States Department of Commerce. (Ehrlich, Stephen) (Filed on 6/14/2018) (Entered: 06/14/2018)
50 STIPULATION WITH PROPOSED ORDER Regarding Briefing Schedule and Excess Pages filed by Ron Jarmin, Wilbur L. Ross, United States Census Bureau, United States Department of Commerce. (Bailey, Kate) (Filed on 6/18/2018) (Entered: 06/18/2018)
51 ORDER by Judge Richard Seeborg granting 50 briefing schedule and excess pages for defendants' motion to dismiss. (cl, COURT STAFF) (Filed on 6/18/2018) (Entered: 06/19/2018)
52 NOTICE by Ron Jarmin, Wilbur L. Ross, United States Census Bureau, United States Department of Commerce of Filing Supplement to Administrative Record (Attachments: # 1 Supplement)(Ehrlich, Stephen) (Filed on 6/21/2018) (Entered: 06/21/2018)
53 RESPONSE to re 49 Brief −− Opposition to Defendants' Memorandum in Support of Review on the Administrative Record by Black Alliance For Just Immigration, City Of San Jose. (Libby, John) (Filed on 6/21/2018) (Entered: 06/21/2018)

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 28 of 43

06/21/2018 06/21/2018 06/21/2018 06/26/2018 06/27/2018 06/28/2018 06/28/2018
06/28/2018

54 REPORT of Rule 26(f) Planning Meeting −− Joint Rule 26(f) Report and Initial Case Management Conference Statement. (Libby, John) (Filed on 6/21/2018) (Entered: 06/21/2018)
55 MOTION to Dismiss filed by Ron Jarmin, Wilbur L. Ross, United States Census Bureau, United States Department of Commerce. Responses due by 7/17/2018. Replies due by 7/26/2018. (Attachments: # 1 Proposed Order)(Ehrlich, Stephen) (Filed on 6/21/2018) (Entered: 06/21/2018)
56 Brief in Further Support of Review on the Administrative Record filed byRon Jarmin, Wilbur L. Ross, United States Census Bureau, United States Department of Commerce. (Bailey, Kate) (Filed on 6/21/2018) (Entered: 06/21/2018)
57 NOTICE by Black Alliance For Just Immigration, City Of San Jose re 52 Notice (Other) (Attachments: # 1 Declaration of John Libby in Support of Notice, # 2 Exhibit A)(Libby, John) (Filed on 6/26/2018) (Entered: 06/26/2018)
58 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7−3.d filed byBlack Alliance For Just Immigration, City Of San Jose. (Attachments: # 1 Order in Sierra Club v. Zinke No. 17−cv−07187−WHO)(Libby, John) (Filed on 6/27/2018) (Entered: 06/27/2018)
59 TRANSCRIPT ORDER for proceedings held on 6/28/2018 before Judge Richard Seeborg by Black Alliance For Just Immigration, City Of San Jose, for Court Reporter Lydia Zinn. (Guardado, Ana) (Filed on 6/28/2018) (Entered: 06/28/2018)
60 Transcript of Proceedings held on 6/28/2018, before Judge Richard Seeborg. Court Reporter/Transcriber Lydia Zinn, telephone number (415) 531−6587. 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/Transcriber 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 (59 in 3:18−cv−02279−RS) Transcript Order ) Redacted Transcript Deadline set for 7/30/2018. Release of Transcript Restriction set for 9/26/2018. (zinnlr62S, COURT STAFF) (Filed on 6/28/2018) (Entered: 06/28/2018)
61 Minute Entry for proceedings held before Judge Richard Seeborg: Status Conference held on 6/28/2018. Parties shall meet and confer regarding proposed scheduling issues and specific suggestions as to the scope of discovery by 8/10/2018. Motion Hearing set for 8/10/2018 10:00 AM in San Francisco, Courtroom 03, 17th Floor before Judge Richard Seeborg.

Total Time in Court: 1 hour 13 minutes. Court Reporter: Lydia Zinn. Plaintiff Attorney: Gabrielle Boutin, R. Matthew Wise, Mark Beckington for State of California; Emil Petrossian, Ezra Rosenberg, John F. Libby for City of San Jose; Maria Bee for City of Oakland. Defendant Attorney: Kate Bailey, Carol Federighi.

07/02/2018 07/02/2018 07/03/2018
07/05/2018

(This is a text−only entry generated by the court. There is no document associated with this entry.) (cl, COURT STAFF) (Date Filed: 6/28/2018) Modified on 6/29/2018 (tlhS, COURT STAFF). (Entered: 06/29/2018)
62 NOTICE of Appearance by Bryan Kipp Weir (Weir, Bryan) (Filed on 7/2/2018) (Entered: 07/02/2018)
63 MOTION for Leave to File Brief Amicus Curiae filed by Project on Fair Representation. (Attachments: # 1 Brief Amicus Curiae, # 2 Proposed Order)(Weir, Bryan) (Filed on 7/2/2018) (Entered: 07/02/2018)
64 ORDER by Judge Richard Seeborg granting (43) Motion for Leave to File in case 3:18−cv−01865−RS; granting (63) Motion for Leave to File in case 3:18−cv−02279−RS. (cl, COURT STAFF) (Filed on 7/3/2018) (Entered: 07/03/2018)
65 TRANSCRIPT ORDER for proceedings held on 6/28/2018 before Judge Richard Seeborg for Court Reporter Lydia Zinn. (rjdS, COURT STAFF) (Filed on 7/5/2018)

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 29 of 43

07/10/2018 07/16/2018 07/17/2018 07/19/2018 07/19/2018
07/19/2018 07/24/2018 07/24/2018 07/25/2018

(Entered: 07/05/2018)
66 NOTICE by Black Alliance For Just Immigration, City Of San Jose // Notice of Ruling (Attachments: # 1 Exhibit 1)(Showole, Olufunmilayo) (Filed on 7/10/2018) (Entered: 07/10/2018)
67 NOTICE of Appearance by Ana G. Guardado (Guardado, Ana) (Filed on 7/16/2018) (Entered: 07/16/2018)
68 OPPOSITION/RESPONSE (re 55 MOTION to Dismiss ) filed byBlack Alliance For Just Immigration, City Of San Jose. (Libby, John) (Filed on 7/17/2018) (Entered: 07/17/2018)
69 ORDER by Judge Richard Seeborg granting (54) Motion for Leave to File.(cl, COURT STAFF) (Filed on 7/19/2018) (Entered: 07/19/2018)
70 MOTION for Leave to File Amici Curie Brief of Current Members of Congress and Bipartisan Former Members of Congress filed by Brian Schatz, Michael F. Bennet, Richard Blumenthal, Cory A. Booker, Ben Cardin, Tammy Duckworth, Richard Durbin, Kamala D. Harris, Mazie Hirono, Bill Nelson, Ron Wyden, Carolyn Maloney, Nanette Diaz Barragan, Howard Berman, Donald S. Beyer, Jr, Earl Blumenauer, Anthony G. Brown, Michael Capuano, Salud O. Carbajal, Tony Cardenas, Andre Carson, Judy Chu, David N. Cicilline, Yvette D. Clarke, Wm. Lacy Clay, Emanuel Cleaver, II, James Clyburn, Steve Cohen, Gerrold Connolly, Luis Correa, Joe Courtney, Joe Crowley, Henry Cuellar, Elijah E. Cummings, Danny K. Davis, Diana DeGette, John K. Delaney, Rosa L. DeLauro, Mark DeSaulnier, Ted Deutch, Debbie Dingell, Keith Ellison, Eliot L. Engel, Adriano Espaillat, Elizabeth Esty, Bill Foster, Lois Frankel, Marcia L. Fudge, Ruben Gallego, Jimmy Gomez, Gene Green, Raul M. Grijalva, Luis Gutierrez, Colleen Hanabusa, Alcee L. Hastings, Steny Hoyer, Sheila Jackson Lee, Pramila Jayapal, Hakeem Jeffries, Henry C. "Hank" Johnson, Jr, Ro Khanna, Ruben J. Kihuen, Daniel T. Kildee, John B. Larson, Brenda L. Lawrence, Barbara Lee, John Lewis, Zoe Lofgren, Alan Lowenthal, Nita Lowey, Michelle Lujan Grisham, Stephen F. Lynch, Doris Matsui, Betty McCollum, A. Donald McEachin, James P. McGovern, Jerry McNerney, Gregory W. Meeks, Grace Meng, Gwen Moore, Constance Morella, Jerrold Nadler, Grace F. Napolitano, Rick Nolan, Donald Norcross, Eleanor Holmes Norton, Frank Pallone, Jr, Jimmy Panetta, Bill Pascrell, Jr, Nancy Pelosi, Ed Perlmutter, Chellie Pingree, Mark Pocan, Jared Polis, John Porter, David E. Price, Mike Quigley, Jamie Raskin, Kathleen M. Rice, Jacky Rosen, Lucille Roybal−Allard, Bobby L. Rush, Linda T. Sanchez, John Sarbanes, Janice D. Schakowsky, Claudine Schneider, Jose Serrano, Brad Sherman, Albio Sires, David Skaggs, Adam Smith, Peter Smith, Darren Soto, Jackie Speier, Mark Takano, Bennie G. Thompson, Mike Thompson, Dina Titus, Norma J. Torres, Juan Vargas, Filemon Vela, Nydia M. Velazquez, Tim Walz, Debbie Wasserman Schultz, Bonnie Watson Coleman, Henry A. Waxman, Peter Welch, John Yarmuth. (Attachments: # 1 Appendix Proposed Amici Curiae Brief, # 2 Proposed Order)(Wydra, Elizabeth) (Filed on 7/19/2018) (Entered: 07/19/2018)
71 ORDER by Judge Richard Seeborg granting 70 Motion for Leave to File. (cl, COURT STAFF) (Filed on 7/19/2018) (Entered: 07/19/2018)
72 NOTICE of Appearance by Michael A Mugmon (Mugmon, Michael) (Filed on 7/24/2018) (Entered: 07/24/2018)
73 MOTION for Leave to File Amicus Curiae Brief filed by Muslim Advocates, NALEO Educational Fund, National Coalition on Black Civic Participation, The Brennan Center for Justice at NYU School of Law, The Leadership Conference Education Fund, The Leadership Conference on Civil and Human Rights. (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(Mugmon, Michael) (Filed on 7/24/2018) (Entered: 07/24/2018)
74 Consent MOTION for Extension of Time to File Response/Reply as to 55 MOTION to Dismiss , 56 Brief filed by Ron Jarmin, Wilbur L. Ross, United States Census Bureau, United States Department of Commerce. (Attachments: # 1 Declaration Bailey Declaration in Support of Unopposed Motion)(Bailey, Kate) (Filed on 7/25/2018) (Entered: 07/25/2018)

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 30 of 43

07/25/2018 07/27/2018 07/31/2018 08/06/2018
08/08/2018 08/10/2018

75 ORDER by Judge Richard Seeborg granting (61) Motion for Extension of Time to File Response/Reply in case 3:18−cv−01865−RS; granting (74) Motion for Extension of Time to File Response/Reply in case 3:18−cv−02279−RS. (cl, COURT STAFF) (Filed on 7/25/2018) (Entered: 07/25/2018)
76 ORDER by Judge Richard Seeborg granting 73 Motion for Leave to File. (cl, COURT STAFF) (Filed on 7/27/2018) (Entered: 07/27/2018)
77 REPLY (re 55 MOTION to Dismiss ) filed byRon Jarmin, Wilbur L. Ross, United States Census Bureau, United States Department of Commerce. (Bailey, Kate) (Filed on 7/31/2018) (Entered: 07/31/2018)
78 ADMINISTRATIVE MOTION for Leave to File Supplemental Brief (Civ. L.R. 7−11) re 48 MOTION to Expand Discovery Beyond the Administrative Record filed by Black Alliance For Just Immigration, City Of San Jose. Responses due by 8/9/2018. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Libby, John) (Filed on 8/6/2018) (Entered: 08/06/2018)
79 STATUS REPORT −− Joint Report on Coordination of Discovery by Black Alliance For Just Immigration, City Of San Jose. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Libby, John) (Filed on 8/8/2018) (Entered: 08/08/2018)
80 Minute Entry for proceedings held before Judge Richard Seeborg: Motion Hearing held on 8/10/2018. Bench Trial set for 1/7/2019 at 09:00 AM before Judge Richard Seeborg. Motion Hearing set for 12/7/2018 at 10:00 AM in San Francisco, Courtroom 03, 17th Floor before Judge Richard Seeborg. Parties shall submit proposed scheduling order. Motions taken under submission; Court to issue an order. Total Time in Court: 2 hours 30 minutes. Court Reporter: Jo Ann Bryce.

Plaintiff Attorney: State of California − R. Matthew Wise, David Holtzman, Gabrielle Boutin, Malia McPherson, Charles Coleman, Harvey Levine, Intervenor − Sue Ann Salmon Evans City of San Jose − Ezra Rosenberg, Ana Guardado, Emil Petrossian.

Defendant Attorney: Kate Bailey, M. Andrew Zee.

08/10/2018 08/10/2018 08/10/2018 08/11/2018
08/13/2018

(This is a text−only entry generated by the court. There is no document associated with this entry.) (cl, COURT STAFF) (Date Filed: 8/10/2018) (Entered: 08/10/2018)
81 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−12586100.) filed by Black Alliance For Just Immigration, City Of San Jose. (Attachments: # 1 Certificate of Good Standing)(Case, Andrew) (Filed on 8/10/2018) (Entered: 08/10/2018)
82 TRANSCRIPT ORDER for proceedings held on August 10, 2018 before Judge Richard Seeborg by Black Alliance For Just Immigration, City Of San Jose, for Court Reporter Jo Ann Bryce. (Guardado, Ana) (Filed on 8/10/2018) (Entered: 08/10/2018)
83 ORDER by Judge Richard Seeborg granting 81 Motion for Pro Hac Vice as to Andrew Case. (cl, COURT STAFF) (Filed on 8/10/2018) (Entered: 08/10/2018)
84 Transcript of Proceedings held on 8/10/18, before Judge Richard Seeborg. Court Reporter Jo Ann Bryce, telephone number 510−910−5888, email: joann_bryce@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 90 days. 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 (82 in 3:18−cv−02279−RS) Transcript Order ) Release of Transcript Restriction set for 11/9/2018. (jabS, COURTSTAFF) (Filed on 8/11/2018) (Entered: 08/11/2018)
85 TRANSCRIPT ORDER for proceedings held on 8/10/2018 before Judge Richard Seeborg for Court Reporter Jo Ann Bryce. (rjdS, COURT STAFF) (Filed on 8/13/2018) (Entered: 08/13/2018)

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 31 of 43

08/17/2018 08/17/2018 08/29/2018 08/30/2018
08/31/2018 09/04/2018 09/06/2018 10/09/2018 10/09/2018 10/10/2018 10/11/2018 11/01/2018 11/01/2018 11/02/2018
11/02/2018

86 ORDER by Judge Richard Seeborg denying (37) Motion to Dismiss in case 3:18−cv−01865−RS; denying (55) Motion to Dismiss in case 3:18−cv−02279−RS. (cl, COURT STAFF) (Filed on 8/17/2018) (Entered: 08/17/2018)
87 ORDER GRANTING REQUEST TO CONDUCT DISCOVERY OUTSIDE THE ADMINISTRATIVE RECORD. Signed by Judge Richard Seeborg on 8/17/18. (cl, COURT STAFF) (Filed on 8/17/2018) (Entered: 08/17/2018)
88 STIPULATION WITH PROPOSED ORDER −− Stipulation to Case Schedule filed by Black Alliance For Just Immigration, City Of San Jose. (Libby, John) (Filed on 8/29/2018) (Entered: 08/29/2018)
89 STIPULATION AND ORDER RE 88 TO CASE SCHEDULE AS MODIFIED BY THE COURT. Bench Trial set for 1/7/2019 at 09:00 AM before Judge Richard Seeborg. Pretrial Conference set for 1/2/2019 at 10:00 AM in San Francisco, Courtroom 03, 17th Floor before Judge Richard Seeborg. Signed by Judge Richard Seeborg on 8/30/18. (cl, COURT STAFF) (Filed on 8/30/2018) (Entered: 08/30/2018)
90 ANSWER to Complaint byRon Jarmin, Wilbur L. Ross, United States Census Bureau, United States Department of Commerce. (Federighi, Carol) (Filed on 8/31/2018) (Entered: 08/31/2018)
91 Joint ADMINISTRATIVE MOTION For Entry of FRE 502(d) Order filed by Ron Jarmin, Wilbur L. Ross, United States Census Bureau, United States Department of Commerce. Responses due by 9/10/2018. (Attachments: # 1 Proposed Order Proposed FRE 502(d) Order)(Federighi, Carol) (Filed on 9/4/2018) (Entered: 09/04/2018)
92 ORDER by Judge Richard Seeborg granting 91 Administrative Motion. (cl, COURT STAFF) (Filed on 9/6/2018) (Entered: 09/06/2018)
93 STIPULATION WITH PROPOSED ORDER −− Joint Stipulation and [Proposed] Order Extending Deadline To Complete Discovery filed by Black Alliance For Just Immigration, City Of San Jose. (Case, Andrew) (Filed on 10/9/2018) (Entered: 10/09/2018)
94 ORDER by Judge Richard Seeborg granting 93 Stipulation extending deadline to complete discovery. (cl, COURT STAFF) (Filed on 10/9/2018) (Entered: 10/09/2018)
95 NOTICE by Ron Jarmin, Wilbur L. Ross, United States Census Bureau, United States Department of Commerce of Stay Issued by Supreme Court (Federighi, Carol) (Filed on 10/10/2018) (Entered: 10/10/2018)
96 NOTICE by Black Alliance For Just Immigration, City Of San Jose re 95 Notice (Other) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Case, Andrew) (Filed on 10/11/2018) (Entered: 10/11/2018)
97 STIPULATION WITH PROPOSED ORDER to Enlarge Page Limitations filed by Black Alliance For Just Immigration, City Of San Jose. (Case, Andrew) (Filed on 11/1/2018) (Entered: 11/01/2018)
98 ORDER RE EXTENSION OF PAGE LIMITS. Signed by Judge Richard Seeborg on 11/1/18. (cl, COURT STAFF) (Filed on 11/1/2018) (Entered: 11/01/2018)
99 MOTION for Partial Summary Judgment filed by Black Alliance For Just Immigration, City Of San Jose. Motion Hearing set for 12/7/2018 10:00 AM in San Francisco, Courtroom 03, 17th Floor before Judge Richard Seeborg. Responses due by 11/16/2018. Replies due by 11/23/2018. (Attachments: # 1 Declaration Declaration of Ana G Guardado, # 2 Declaration Declaration of Kristen Clements, # 3 Declaration Declaration of Monique Melchor, # 4 Declaration Declaration of Opal Tometi, # 5 Declaration Declaration of Jeff Ruster, # 6 Proposed Order Proposed Order)(Guardado, Ana) (Filed on 11/2/2018) (Entered: 11/02/2018)
100 MOTION for Summary Judgment filed by United States Census Bureau, United States Department of Commerce. Motion Hearing set for 12/7/2018 10:00 AM in San Francisco, Courtroom 03, 17th Floor before Judge Richard Seeborg. Responses due by 11/16/2018. Replies due by 11/23/2018. (Attachments: # 1 Exhibit Abowd Expert Report, # 2 Exhibit Gurrea Expert Report, # 3 Proposed Order Proposed

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 32 of 43

11/14/2018 11/14/2018 11/16/2018
11/16/2018 11/26/2018 11/26/2018 12/01/2018 12/03/2018 12/05/2018 12/07/2018

Order)(Bailey, Kate) (Filed on 11/2/2018) (Entered: 11/02/2018)
101 STIPULATION WITH PROPOSED ORDER to Extend Deadline for Reply Briefing filed by Black Alliance For Just Immigration, City Of San Jose. (Case, Andrew) (Filed on 11/14/2018) (Entered: 11/14/2018)
102 ORDER GRANTING STIPULATION TO EXTEND DEADLINE FOR REPLY BRIEFING AS MODIFIED BY THE COURT. Signed by Judge Richard Seeborg (cl, COURT STAFF) (Filed on 11/14/2018) (Entered: 11/14/2018)
103 OPPOSITION/RESPONSE (re 100 MOTION for Summary Judgment ) filed byBlack Alliance For Just Immigration, City Of San Jose. (Attachments: # 1 Declaration Ana Guardado, # 2 Declaration Andrew Case, # 3 Exhibit 1 − Declaration of Matthew Barreto, # 4 Exhibit 2 − Declaration of Colm O'Muircheartaigh, # 5 Exhibit 3 − Declaration of Lisa Handley, # 6 Exhibit 4 − Declaration of Pamela Karlan, # 7 Exhibit 5 − Declaration of Margo Anderson, # 8 Exhibit 6 − Declaration of Hermann Habermann)(Guardado, Ana) (Filed on 11/16/2018) (Entered: 11/16/2018)
104 OPPOSITION/RESPONSE (re 99 MOTION for Partial Summary Judgment ) filed byRon Jarmin, United States Census Bureau, United States Department of Commerce. (Bailey, Kate) (Filed on 11/16/2018) (Entered: 11/16/2018)
105 REPLY (re 99 MOTION for Partial Summary Judgment ) filed byBlack Alliance For Just Immigration, City Of San Jose. (Attachments: # 1 Declaration Andrew Case)(Guardado, Ana) (Filed on 11/26/2018) (Entered: 11/26/2018)
106 REPLY (re 100 MOTION for Summary Judgment ) filed byRon Jarmin, Wilbur L. Ross, United States Census Bureau, United States Department of Commerce. (Attachments: # 1 Declaration)(Federighi, Carol) (Filed on 11/26/2018) (Entered: 11/26/2018)
107 NOTICE of Appearance by Martin Tomlinson for Defendants (Tomlinson, Martin) (Filed on 12/1/2018) (Entered: 12/01/2018)
108 ORDER by Judge Richard Seeborg granting (96) Administrative Motion. (cl, COURT STAFF) (Filed on 12/3/2018) (Entered: 12/03/2018)
109 ORDER by Judge Richard Seeborg granting (101) Stipulation for leave to conduct trial deposition of expert witness Pamela Karlan. (cl, COURT STAFF) (Filed on 12/5/2018) (Entered: 12/05/2018)
110 Minute Entry for proceedings held before Judge Richard Seeborg: Motion Hearing held on 12/7/2018 re (99 in 3:18−cv−02279−RS) MOTION for Partial Summary Judgment filed by City Of San Jose, Black Alliance For Just Immigration, (100 in 3:18−cv−02279−RS) MOTION for Summary Judgment filed by United States Department of Commerce, United States Census Bureau, (89 in 3:18−cv−01865−RS) MOTION for Summary Judgment filed by U.S. Census Bureau, U.S. Department of Commerce. Motions taken under submission; Court to issue an order. Total Time in Court: 2 hours. Court Reporter: Belle Ball.

Plaintiff Attorney: Ezra Rosenberg, John Libby, Ana Guardado, Andrew Case, R. Matthew Wise, Gabrielle Boutin, Keith Yeomans, Malia McPherson, David Holtzman.

Defendant Attorney: Carlotta Wells, Martin Tomlinson.

12/07/2018 12/09/2018

(This is a text−only entry generated by the court. There is no document associated with this entry.) (cl, COURT STAFF) (Date Filed: 12/7/2018) Modified on 12/7/2018 (cl, COURT STAFF). (Entered: 12/07/2018)
111 TRANSCRIPT ORDER for proceedings held on December 7, 2018 before Judge Richard Seeborg by Black Alliance For Just Immigration, City Of San Jose, for Court Reporter Belle Ball. (Guardado, Ana) (Filed on 12/7/2018) (Entered: 12/07/2018)
112 Transcript of Proceedings held on December 7, 2018, before Judge Richard Seeborg. Court Reporter elle Ball, CSR, CRR, RDR, telephone number (415)373−2529, belle_ball@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 33 of 43

12/10/2018 12/10/2018 12/12/2018
12/12/2018 12/12/2018 12/13/2018 12/14/2018
12/14/2018 12/18/2018
12/18/2018
12/18/2018 12/19/2018 12/21/2018
12/21/2018 12/26/2018

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 (111 in 3:18−cv−02279−RS) Transcript Order ) Release of Transcript Restriction set for 3/11/2019. (ballbb15S, COURT STAFF) (Filed on 12/9/2018) (Entered: 12/09/2018)
113 TRANSCRIPT ORDER for proceedings held on 12/7/2018 before Judge Richard Seeborg for Court Reporter Belle Ball. (rjdS, COURT STAFF) (Filed on 12/10/2018) (Entered: 12/10/2018)
114 Supplemental Brief re 99 MOTION for Partial Summary Judgment Supplemental Statement filed byBlack Alliance For Just Immigration, City Of San Jose. (Related document(s) 99 ) (Guardado, Ana) (Filed on 12/10/2018) (Entered: 12/10/2018)
115 Witness List by Ron Jarmin, Wilbur L. Ross, United States Census Bureau, United States Department of Commerce and Exhibit List. (Attachments: # 1 Exhibit A: Witness and Exhibit List)(Federighi, Carol) (Filed on 12/12/2018) (Entered: 12/12/2018)
116 Witness List by Black Alliance For Just Immigration, City Of San Jose . (Guardado, Ana) (Filed on 12/12/2018) (Entered: 12/12/2018)
117 Exhibit List by Black Alliance For Just Immigration, City Of San Jose.. (Attachments: # 1 Exhibit A)(Guardado, Ana) (Filed on 12/12/2018) (Entered: 12/12/2018)
118 NOTICE of Appearance by Marsha S. Edney (Edney, Marsha) (Filed on 12/13/2018) (Entered: 12/13/2018)
119 ORDER by Judge Richard Seeborg denying (89) Motion for Summary Judgment in case 3:18−cv−01865−RS; denying (99) Motion for Partial Summary Judgment; denying (100) Motion for Summary Judgment in case 3:18−cv−02279−RS. (cl, COURT STAFF) (Filed on 12/14/2018) (Entered: 12/14/2018)
Set/Reset Hearing Bench Trial set for 1/7/2019, 1/8/2019, 1/9/2019, 1/10/2019, 1/11/2019, 1/14/2019, 1/15/2019 at 09:00 AM before Judge Richard Seeborg. (cl, COURT STAFF) (Filed on 12/14/2018) (Entered: 12/14/2018)
120 STIPULATION WITH PROPOSED ORDER TO ADMIT EVIDENCE IN LIEU OF TESTIMONY FOR DR. LISA HANDLEY AND DR. HERMANN HABERMANN filed by Black Alliance For Just Immigration, City Of San Jose. (Guardado, Ana) (Filed on 12/18/2018) (Entered: 12/18/2018)
121 ORDER by Judge Richard Seeborg granting (115) Stipulation in case 3:18−cv−01865−RS; granting (120) Stipulation in case 3:18−cv−02279−RS to admit evidence in lieu of testimony for Dr. Lisa Handley and Dr. Hermann Habermann. (cl, COURT STAFF) (Filed on 12/18/2018) (Entered: 12/18/2018)
122 TRANSCRIPT ORDER for Future Trial with Daily Transcripts by City Of San Jose. (Libby, John) (Filed on 12/18/2018) (Entered: 12/18/2018)
123 TRANSCRIPT ORDER for Future Trial with Daily Transcripts by Ron Jarmin, Wilbur L. Ross, United States Census Bureau, United States Department of Commerce. (Federighi, Carol) (Filed on 12/19/2018) (Entered: 12/19/2018)
124 MOTION in Limine filed by United States Census Bureau, United States Department of Commerce. Motion Hearing set for 1/2/2019 10:00 AM in San Francisco, Courtroom 03, 17th Floor before Judge Richard Seeborg. Responses due by 12/28/2018. (Attachments: # 1 Proposed Order)(Edney, Marsha) (Filed on 12/21/2018) (Entered: 12/21/2018)
125 Pretrial Conference Statement by Black Alliance For Just Immigration, City Of San Jose JOINT Pretrial Statement and [Proposed] Order. (Guardado, Ana) (Filed on 12/21/2018) (Entered: 12/21/2018)
126 MOTION to Stay Due to Lapse of Appropriations filed by United States Census Bureau, United States Department of Commerce. Responses due by 12/27/2018. (Edney, Marsha) (Filed on 12/26/2018) (Entered: 12/26/2018)

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 34 of 43

12/26/2018 12/28/2018 12/28/2018 12/28/2018 12/28/2018 12/28/2018 12/28/2018 12/28/2018 12/28/2018 12/28/2018 12/28/2018 12/28/2018 12/28/2018 12/28/2018
12/28/2018 12/29/2018 01/02/2019

127 ORDER by Judge Richard Seeborg denying (121) Motion to Stay in case 3:18−cv−01865−RS; denying (126) Motion to Stay in case 3:18−cv−02279−RS. (cl, COURT STAFF) (Filed on 12/26/2018) (Entered: 12/26/2018)
128 OPPOSITION/RESPONSE (re 124 MOTION in Limine ) filed byBlack Alliance For Just Immigration, City Of San Jose. (Guardado, Ana) (Filed on 12/28/2018) (Entered: 12/28/2018)
129 Trial Declaration of Bernard L. Fraga, Ph.D. by Black Alliance For Just Immigration, City Of San Jose. (Guardado, Ana) (Filed on 12/28/2018) Modified on 1/9/2019 (gbaS, COURT STAFF). (Entered: 12/28/2018)
130 Trial Affidavit of Jeff Ruster by Black Alliance For Just Immigration, City Of San Jose. (Guardado, Ana) (Filed on 12/28/2018) Modified on 1/9/2019 (gbaS, COURT STAFF). (Entered: 12/28/2018)
131 Trial Affidavit of Jill Bourne by Black Alliance For Just Immigration, City Of San Jose. (Guardado, Ana) (Filed on 12/28/2018) Modified on 1/9/2019 (gbaS, COURT STAFF). (Entered: 12/28/2018)
132 Trial Affidavit of Kristen Clements by Black Alliance For Just Immigration, City Of San Jose. (Guardado, Ana) (Filed on 12/28/2018) Modified on 1/9/2019 (gbaS, COURT STAFF). (Entered: 12/28/2018)
133 Trial Affidavit of Margo Anderson by Black Alliance For Just Immigration, City Of San Jose. (Guardado, Ana) (Filed on 12/28/2018) Modified on 1/9/2019 (gbaS, COURT STAFF). (Entered: 12/28/2018)
134 EXHIBITS re 130 Affidavit Exhibit A To Trial Affidavit of Jeff Ruster filed byBlack Alliance For Just Immigration, City Of San Jose. (Related document(s) 130 ) (Guardado, Ana) (Filed on 12/28/2018) (Entered: 12/28/2018)
135 Trial Affidavit of Monique Melchor by Black Alliance For Just Immigration, City Of San Jose. (Guardado, Ana) (Filed on 12/28/2018) Modified on 1/9/2019 (gbaS, COURT STAFF). (Entered: 12/28/2018)
136 Trial Affidavit of Ray Riordan by Black Alliance For Just Immigration, City Of San Jose. (Guardado, Ana) (Filed on 12/28/2018) Modified on 1/9/2019 (gbaS, COURT STAFF). (Entered: 12/28/2018)
137 Trial Declaration of Andrew Reamer, Ph.D. by Black Alliance For Just Immigration, City Of San Jose. (Guardado, Ana) (Filed on 12/28/2018) Modified on 1/9/2019 (gbaS, COURT STAFF). (Entered: 12/28/2018)
138 NOTICE of Appearance by Carlotta Porter Wells (Wells, Carlotta) (Filed on 12/28/2018) (Entered: 12/28/2018)
139 Proposed Findings of Fact by Wilbur L. Ross, United States Census Bureau, United States Department of Commerce . (Bailey, Kate) (Filed on 12/28/2018) (Entered: 12/28/2018)
140 OBJECTIONS to Plaintiffs' Joint Exhibit List by Ron Jarmin, Wilbur L. Ross, United States Census Bureau, United States Department of Commerce. (Attachments: # 1 Exhibit 1: Defendants' Objections)(Federighi, Carol) (Filed on 12/28/2018) Modified on 1/9/2019 (gbaS, COURT STAFF). (Entered: 12/28/2018)
141 Proposed Findings of Fact by Black Alliance For Just Immigration, City Of San Jose Plaintiffs' Proposed Findings of Fact and Conclusions of Law. (Guardado, Ana) (Filed on 12/28/2018) (Entered: 12/28/2018)
142 Trial Affidavit of Opal Tometi by Black Alliance For Just Immigration, City Of San Jose. (Guardado, Ana) (Filed on 12/29/2018) Modified on 1/9/2019 (gbaS, COURT STAFF). (Entered: 12/29/2018)
143 Minute Entry for proceedings held before Judge Richard Seeborg: Pretrial Conference held on 1/2/2019. Motion submitted; Court to issue an order.Total Time in Court: 55 minutes. Court Reporter: Belle Ball.

Plaintiff Attorney: David Holtzman, R. Matthew Wise, Gabrielle D. Boutin, Todd

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 35 of 43

Grabarsky, Malia McPherson, Keith Yeomans, Charles Coleman, Anna Ferrari, Ezra Rosenberg, John Libby, Ana Guardado.

Defendant Attorney: Carol Federighi, Carlotta Wells, Marsha Edney, Kate Bailey.

01/02/2019 01/02/2019 01/03/2019 01/04/2019
01/04/2019 01/07/2019 01/07/2019 01/07/2019
01/07/2019 01/08/2019 01/08/2019

(This is a text−only entry generated by the court. There is no document associated with this entry.) (cl, COURT STAFF) (Date Filed: 1/2/2019) (Entered: 01/02/2019)
144 JOINT PRETRIAL ORDER AND STATEMENT. Signed by Judge Richard Seeborg on 1/2/19. (cl, COURT STAFF) (Filed on 1/2/2019) (Entered: 01/02/2019)
145 TRANSCRIPT ORDER for proceedings held on 01/02/2019 before Judge Richard Seeborg by Black Alliance For Just Immigration, City Of San Jose, for Court Reporter Belle Ball. (Guardado, Ana) (Filed on 1/2/2019) (Entered: 01/02/2019)
146 NOTICE of Supplemental Materials in support of Motion in Limine by United States Census Bureau, United States Department of Commerce (Attachments: # 1 Exhibit)(Edney, Marsha) (Filed on 1/3/2019) Modified on 1/10/2019 (gbaS, COURT STAFF). (Entered: 01/03/2019)
147 Transcript of Proceedings held on January 2, 2019, before Judge Richard Seeborg. Court Reporter Belle Ball, CSR, CRR, RDR, telephone number (415) 373−2529, belle_ball@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 (145 in 3:18−cv−02279−RS) Transcript Order ) Release of Transcript Restriction set for 4/4/2019. (ballbb15S, COURT STAFF) (Filed on 1/4/2019) (Entered: 01/04/2019)
148 ORDER by Judge Richard Seeborg granting in part and denying in part (118) Motion in Limine in case 3:18−cv−01865−RS; granting in part and denying in part (124) Motion in Limine in case 3:18−cv−02279−RS. (cl, COURT STAFF) (Filed on 1/4/2019) (Entered: 01/04/2019)
149 OBJECTIONS to Trial Affidavits by United States Census Bureau, United States Department of Commerce. (Edney, Marsha) (Filed on 1/7/2019) (Entered: 01/07/2019)
150 MOTION in Limine Re Dr. Barreto filed by Ron Jarmin, Wilbur L. Ross, United States Census Bureau, United States Department of Commerce. Motion Hearing set for 1/8/2019 09:00 AM in San Francisco, Courtroom 03, 17th Floor before Judge Richard Seeborg. Responses due by 1/22/2019. Replies due by 1/29/2019. (Attachments: # 1 Proposed Order)(Federighi, Carol) (Filed on 1/7/2019) (Entered: 01/07/2019)
151 NOTICE by Ron Jarmin, Wilbur L. Ross, United States Census Bureau, United States Department of Commerce of Filing of Parties' Deposition Designations and Counter Designations (Attachments: # 1 Exhibit A: 30(b)(6) Vol. 1, # 2 Exhibit B: 30(b)(6) Vol. 2, # 3 Exhibit C: Comstock, # 4 Exhibit D: Gore, # 5 Exhibit E: Jarmin, # 6 Exhibit F: Kelley, # 7 Exhibit G: Langdon, # 8 Exhibit H: Park−Su, # 9 Exhibit I: Teramoto)(Federighi, Carol) (Filed on 1/7/2019) (Entered: 01/07/2019)
152 Minute Entry for proceedings held before Judge Richard Seeborg: Bench Trial began on 1/7/2019. Total Time in Court: 5 hours 30 minutes. Court Reporter: Belle Ball and Jo Ann Bryce. (Attachments: # 1 Trial Log)(cl, COURT STAFF) (Date Filed: 1/7/2019) Modified on 1/10/2019 (cl, COURT STAFF). (Entered: 01/08/2019)
153 Minute Entry for proceedings held before Judge Richard Seeborg: Bench Trial held on 1/8/2019.Total Time in Court: 2 hours. Court Reporter: Belle Ball and Jo Ann Bryce. (Attachments: # 1 Trial Log)(cl, COURT STAFF) (Date Filed: 1/8/2019) (Entered: 01/08/2019)
154 AFFIDAVIT Supplemental Trial Affidavit of Opal Tometi by Black Alliance For Just Immigration, City Of San Jose. (Guardado, Ana) (Filed on 1/8/2019) (Entered: 01/08/2019)

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 36 of 43

01/08/2019 01/08/2019 01/09/2019 01/09/2019 01/09/2019 01/09/2019 01/10/2019 01/10/2019
01/10/2019
01/10/2019

155 NOTICE by Black Alliance For Just Immigration, City Of San Jose re 137 Affidavit Notice Regarding Trial Declaration of Dr. Andrew Reamer (Guardado, Ana) (Filed on 1/8/2019) (Entered: 01/08/2019)
156 AFFIDAVIT re 136 Affidavit Supplemental Trial Affidavit of Raymond Riordan by Black Alliance For Just Immigration, City Of San Jose. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Guardado, Ana) (Filed on 1/8/2019) (Entered: 01/08/2019)
157 AFFIDAVIT Trial Affidavit of Monique Melchor by Black Alliance For Just Immigration, City Of San Jose. (Guardado, Ana) (Filed on 1/9/2019) (Entered: 01/09/2019)
158 AFFIDAVIT Trial Affidavit of Monique Melchor by Black Alliance For Just Immigration, City Of San Jose. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Guardado, Ana) (Filed on 1/9/2019) (Entered: 01/09/2019)
159 Request for Judicial Notice Request For Judicial Notice filed byBlack Alliance For Just Immigration, City Of San Jose. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Guardado, Ana) (Filed on 1/9/2019) (Entered: 01/09/2019)
160 Minute Entry for proceedings held before Judge Richard Seeborg: Bench Trial held on 1/9/2019.Total Time in Court: 5 1/2 hours. Court Reporter: Belle Ball and Jo Ann Bryce. (Attachments: # 1 Trial Log)(cl, COURT STAFF) (Date Filed: 1/9/2019) (Entered: 01/10/2019)
161 Minute Entry for proceedings held before Judge Richard Seeborg: Bench Trial held on 1/10/2019.Total Time in Court: 4 hours. Court Reporter: Belle Ball and Jo Ann Bryce. (Attachments: # 1 Trial Log)(cl, COURT STAFF) (Date Filed: 1/10/2019) (Entered: 01/10/2019)
162 Volume 1 of Transcript of Bench Trial Proceedings held on January 7, 2019, before Judge Richard Seeborg. Court Reporters Belle Ball, CSR, and JoAnn Bryce, CSR, telephone number (415)373−2529, belle_ball@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 Reporters 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 (123 in 3:18−cv−02279−RS) Transcript Order − Future Trial with Daily Transcripts, (122 in 3:18−cv−02279−RS) Transcript Order − Future Trial with Daily Transcripts ) Release of Transcript Restriction set for 4/10/2019. (ballbb15S, COURT STAFF) (Filed on 1/10/2019) (Additional attachment(s) added on 2/13/2019: # 2 Supplement Master Index) (rjdS, COURT STAFF). (Entered: 01/10/2019)
163 Volume 2 of Transcript of Bench Trial Proceedings, held on January 8, 2019, before Judge Richard Seeborg. Court Reporters Belle Ball, CSR, and JoAnn Bryce, CSR, telephone number (415)373−2529, belle_ball@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 Reporters 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 (123 in 3:18−cv−02279−RS) Transcript Order − Future Trial with Daily Transcripts, (122 in 3:18−cv−02279−RS) Transcript Order − Future Trial with Daily Transcripts ) Release of Transcript Restriction set for 4/10/2019. (ballbb15S, COURT STAFF) (Filed on 1/10/2019) (Entered: 01/10/2019)
164 Volume 3 of Transcript of Bench Trial Proceedings held on January 9, 2019, before Judge Richard Seeborg. Court Reporters Belle Ball, CSR, and JoAnn Bryce, CSR, telephone number (415)373−2529, belle_ball@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 Reporters 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 (123 in 3:18−cv−02279−RS) Transcript Order − Future Trial with Daily Transcripts, (156 in

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 37 of 43

01/10/2019
01/11/2019 01/11/2019 01/11/2019 01/13/2019 01/14/2019 01/14/2019 01/14/2019 01/15/2019

3:18−cv−01865−RS) Transcript Order − Future Trial with Daily Transcripts, (117 in 3:18−cv−01865−RS) Transcript Order − Future Trial with Daily Transcripts, (145 in 3:18−cv−02279−RS) Transcript Order, (143 in 3:18−cv−01865−RS) Transcript Order − Future Trial with Daily Transcripts, (122 in 3:18−cv−02279−RS) Transcript Order − Future Trial with Daily Transcripts, (120 in 3:18−cv−01865−RS) Transcript Order − Future Trial with Daily Transcripts ) Release of Transcript Restriction set for 4/10/2019. (ballbb15S, COURT STAFF) (Filed on 1/10/2019) (Entered: 01/10/2019)
165 Volume 4 of Transcript of Bench Trial Proceedings held on January 10, 2019, before Judge Richard Seeborg. Court Reporters Belle Ball, CSR, and JoAnn Bryce, CSR, telephone number (415)373−2529, belle_ball@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 Reporters 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 (123 in 3:18−cv−02279−RS) Transcript Order − Future Trial with Daily Transcripts, (156 in 3:18−cv−01865−RS) Transcript Order − Future Trial with Daily Transcripts, (117 in 3:18−cv−01865−RS) Transcript Order − Future Trial with Daily Transcripts, (143 in 3:18−cv−01865−RS) Transcript Order − Future Trial with Daily Transcripts, (122 in 3:18−cv−02279−RS) Transcript Order − Future Trial with Daily Transcripts, (120 in 3:18−cv−01865−RS) Transcript Order − Future Trial with Daily Transcripts ) Release of Transcript Restriction set for 4/10/2019. (ballbb15S, COURT STAFF) (Filed on 1/10/2019) (Entered: 01/10/2019)
166 OBJECTIONS to Request for Judicial Notice by United States Census Bureau, United States Department of Commerce. (Edney, Marsha) (Filed on 1/11/2019) (Entered: 01/11/2019)
167 ORDER RE DEFENDANTS' MOTION IN LIMINE AND OBJECTIONS TO PLAINTIFFS' TRIAL DECLARATIONS. Signed by Judge Richard Seeborg on 1/11/19. (cl, COURT STAFF) (Filed on 1/11/2019) (Entered: 01/11/2019)
168 Minute Entry for proceedings held before Judge Richard Seeborg: Bench Trial held on 1/11/2019.Total Time in Court: 5 hours 20 minutes. Court Reporter: Belle Ball and Jo Ann Bryce. (Attachments: # 1 Trial Log)(cl, COURT STAFF) (Date Filed: 1/11/2019) (Entered: 01/11/2019)
169 STIPULATION WITH PROPOSED ORDER STIPULATION TO ADMIT TRIAL TRANSCRIPT IN LIEU OF TESTIMONY FOR DR. JOHN ABOWD filed by Black Alliance For Just Immigration, City Of San Jose. (Attachments: # 1 Exhibit A)(Guardado, Ana) (Filed on 1/13/2019) (Entered: 01/13/2019)
170 ORDER by Judge Richard Seeborg granting (172) Stipulation to admit trial transcript in lieu of testimony for Dr. John Abowd in case 3:18−cv−01865−RS; granting (169) Stipulation to admit trial transcript in lieu of testimony for Dr. John Abowd in case 3:18−cv−02279−RS. (cl, COURT STAFF) (Filed on 1/14/2019) (Entered: 01/14/2019)
171 NOTICE by Black Alliance For Just Immigration, City Of San Jose of Filing Revised Declaration of Kristen Clements (Libby, John) (Filed on 1/14/2019) (Entered: 01/14/2019)
172 Minute Entry for proceedings held before Judge Richard Seeborg: Bench Trial held on 1/14/2019. Bench Trial set for 2/15/2019 at 10:00 AM before Judge Richard Seeborg. Total Time in Court: 2 hours and 50 minutes. Court Reporter: Belle Ball and Jo Ann Bryce. (Attachments: # 1 Trial Log)(cl, COURT STAFF) (Date Filed: 1/14/2019) (Entered: 01/14/2019)
173 Volume 5 of Transcript of Bench Trial Proceedings held on January 11, 2019, before Judge Richard Seeborg. Court Reporter Belle Ball, CSR and JoAnn Bryce, CSR, telephone number (415)373−2529, belle_ball@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 (123 in

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 38 of 43

01/15/2019
01/16/2019
01/17/2019 01/17/2019 01/18/2019 01/18/2019 01/23/2019 01/25/2019 02/01/2019 02/01/2019

3:18−cv−02279−RS) Transcript Order − Future Trial with Daily Transcripts, (156 in 3:18−cv−01865−RS) Transcript Order − Future Trial with Daily Transcripts, (117 in 3:18−cv−01865−RS) Transcript Order − Future Trial with Daily Transcripts, (143 in 3:18−cv−01865−RS) Transcript Order − Future Trial with Daily Transcripts, (122 in 3:18−cv−02279−RS) Transcript Order − Future Trial with Daily Transcripts, (120 in 3:18−cv−01865−RS) Transcript Order − Future Trial with Daily Transcripts ) Release of Transcript Restriction set for 4/15/2019. (ballbb15S, COURT STAFF) (Filed on 1/15/2019) (Entered: 01/15/2019)
174 Volume 6 of Transcript of Bench Trial Proceedings held on January 14, 2019, before Judge Richard Seeborg. Court Reporters Belle Ball, CSR and JoAnn Bryce, CSR, telephone number (415)373−2529, belle_ball@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 Reporters 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 (123 in 3:18−cv−02279−RS) Transcript Order − Future Trial with Daily Transcripts, (156 in 3:18−cv−01865−RS) Transcript Order − Future Trial with Daily Transcripts, (117 in 3:18−cv−01865−RS) Transcript Order − Future Trial with Daily Transcripts, (143 in 3:18−cv−01865−RS) Transcript Order − Future Trial with Daily Transcripts, (122 in 3:18−cv−02279−RS) Transcript Order − Future Trial with Daily Transcripts, (120 in 3:18−cv−01865−RS) Transcript Order − Future Trial with Daily Transcripts ) Release of Transcript Restriction set for 4/15/2019. (ballbb15S, COURT STAFF) (Filed on 1/15/2019) (Entered: 01/15/2019)
175 NOTICE by Black Alliance For Just Immigration, City Of San Jose Notice of Judgment in State of New York et al. v. U.S. Dep't of Commerce et al. (18−cv−2921) and New York Immigration Coalition et al. v. U.S. Dep't of Commerce et al. (18−cv−5025) (Attachments: # 1 Exhibit 1 − Final Judgment, Order of Vacatur, and Permanent Injunction, # 2 Exhibit 2 − Findings of Fact and Conclusions of Law)(Guardado, Ana) (Filed on 1/16/2019) (Entered: 01/16/2019)
176 ORDER RE PLAINTIFFS' REQUESTS FOR JUDICIAL NOTICE. Signed by Judge Richard Seeborg on 1/17/19. (cl, COURT STAFF) (Filed on 1/17/2019) (Entered: 01/17/2019)
177 NOTICE by Black Alliance For Just Immigration, City Of San Jose Of Filing Revised Declaration of Margo Anderson (Attachments: # 1 Exhibit 1)(Libby, John) (Filed on 1/17/2019) (Entered: 01/17/2019)
178 JOINT STIPULATION AND ORDER Regarding Evidence Relating to Plaintiffs' Expert Witnesses Drs. Habermann and Handley. Signed by Judge Richard Seeborg on 1/18/19. (cl, COURT STAFF) (Filed on 1/18/2019) (Entered: 01/18/2019)
179 NOTICE by Black Alliance For Just Immigration, City Of San Jose of Filing Revised Declaration of Dr. Andrew Reamer (Attachments: # 1 Exhibit 1)(Guardado, Ana) (Filed on 1/18/2019) (Entered: 01/18/2019)
180 NOTICE by Black Alliance For Just Immigration, City Of San Jose re 159 Request for Judicial Notice, Notice Regarding Facts of Which The Court Took Judicial Notice (Case, Andrew) (Filed on 1/23/2019) (Entered: 01/23/2019)
181 NOTICE by Black Alliance For Just Immigration, City Of San Jose Notice of Joint Evidence List (Attachments: # 1 Exhibit A − Joint Evidence List)(Guardado, Ana) (Filed on 1/25/2019) (Entered: 01/25/2019)
182 NOTICE of Appearance by Brett A. Shumate (Shumate, Brett) (Filed on 2/1/2019) (Entered: 02/01/2019)
183 MOTION for leave to appear in Pro Hac Vice by Alexander H. Southwell ( Filing fee $ 310, receipt number 0971−13058454.) filed by Tech:NYC, Univision Communications Inc., General Assembly, Topia, Minneapolis Regional Chamber of Commerce. (Attachments: # 1 Certificate of Good Standing − New York)(Southwell, Alexander) (Filed on 2/1/2019) (Entered: 02/01/2019)

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 39 of 43

02/01/2019
02/01/2019 02/01/2019 02/01/2019
02/01/2019 02/04/2019 02/04/2019 02/15/2019 02/21/2019 02/22/2019 02/22/2019 02/27/2019 03/06/2019 03/13/2019 03/13/2019 03/14/2019

184 MOTION for leave to appear in Pro Hac Vice by Stuart F. Delery ( Filing fee $ 310, receipt number 0971−13058595.) filed by General Assembly, Minneapolis Regional Chamber of Commerce, Tech:NYC, Topia, Univision Communications Inc.. (Attachments: # 1 Certificate of Good Standing − District of Columbia)(Delery, Stuart) (Filed on 2/1/2019) (Entered: 02/01/2019)
185 Proposed Findings of Fact by Black Alliance For Just Immigration, City Of San Jose Post−Trial Findings of Fact and Conclusions of Law. (Guardado, Ana) (Filed on 2/1/2019) (Entered: 02/01/2019)
186 NOTICE of Appearance by Julian Wolfe Kleinbrodt (Kleinbrodt, Julian) (Filed on 2/1/2019) (Entered: 02/01/2019)
187 MOTION to File Amicus Curiae Brief filed by General Assembly, Minneapolis Regional Chamber of Commerce, Tech:NYC, Topia, Univision Communications Inc.. Motion Hearing set for 3/7/2019 01:30 PM in San Francisco, Courtroom 03, 17th Floor before Judge Richard Seeborg. Responses due by 2/15/2019. Replies due by 2/22/2019. (Attachments: # 1 Amici Curiae Brief, # 2 Proposed Order)(Kleinbrodt, Julian) (Filed on 2/1/2019) (Entered: 02/01/2019)
188 Proposed Findings of Fact by Ron Jarmin, Wilbur L. Ross, United States Census Bureau, United States Department of Commerce Proposed FOF and Conclusions of Law. (Bailey, Kate) (Filed on 2/1/2019) (Entered: 02/01/2019)
189 ORDER by Judge Richard Seeborg granting 183 Motion for Pro Hac Vice as to Alexander H. Southwell. (cl, COURT STAFF) (Filed on 2/4/2019) (Entered: 02/04/2019)
190 ORDER by Judge Richard Seeborg granting 184 Motion for Pro Hac Vice as to Stuart F. Delery. (cl, COURT STAFF) (Filed on 2/4/2019) (Entered: 02/04/2019)
191 Minute Entry for proceedings held before Judge Richard Seeborg: Bench Trial completed on 2/15/2019.Total Time in Court: 4 hours. Court Reporter: Belle Ball. (Attachments: # 1 Trial Log)(cl, COURT STAFF) (Date Filed: 2/15/2019) (Entered: 02/15/2019)
192 NOTICE by Ron Jarmin, Wilbur L. Ross, United States Census Bureau, United States Department of Commerce of Defendants' Position Regarding Supreme Court Proceedings (Shumate, Brett) (Filed on 2/21/2019) (Entered: 02/21/2019)
193 NOTICE by Black Alliance For Just Immigration, City Of San Jose re 192 Notice (Other) Notice of Plaintiffs' Position Regarding Supreme Court Proceedings (Guardado, Ana) (Filed on 2/22/2019) (Entered: 02/22/2019)
194 ORDER DENYING REQUEST FOR STAY. Signed by Judge Richard Seeborg on 2/22/19. (cl, COURT STAFF) (Filed on 2/22/2019) (Entered: 02/22/2019)
195 CLERK'S NOTICE VACATING MOTION HEARING SET FOR MARCH 7, 2019 AT 1:30 PM. (This is a text−only entry generated by the court. There is no document associated with this entry.) (cl, COURT STAFF) (Filed on 2/27/2019) (Entered: 02/27/2019)
196 FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Judge Richard Seeborg on 3/6/19. (cl, COURT STAFF) (Filed on 3/6/2019) (Entered: 03/06/2019)
197 FINAL JUDGMENT, ORDER OF VACATUR, AND PERMANENT INJUNCTION. Signed by Judge Richard Seeborg on 3/13/19. (cl, COURT STAFF) (Filed on 3/13/2019) (Entered: 03/13/2019)
198 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by United States Census Bureau, United States Department of Commerce. (Appeal fee FEE WAIVED.) (Edney, Marsha) (Filed on 3/13/2019) (Entered: 03/13/2019)
199 Transcript of Proceedings held on February 15, 2019, before Judge Richard Seeborg. Court Reporter Belle Ball, CSR, CRR, RDR, telephone number (415)373−2529, belle_ball@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

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 40 of 43

03/20/2019 03/22/2019
03/25/2019 05/30/2019 07/03/2019 07/08/2019 07/08/2019 07/08/2019 07/09/2019
07/09/2019 07/09/2019 07/09/2019 07/09/2019 07/10/2019 07/10/2019

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 (123 in 3:18−cv−02279−RS) Transcript Order − Future Trial with Daily Transcripts, (156 in 3:18−cv−01865−RS) Transcript Order − Future Trial with Daily Transcripts, (143 in 3:18−cv−01865−RS) Transcript Order − Future Trial with Daily Transcripts, (122 in 3:18−cv−02279−RS) Transcript Order − Future Trial with Daily Transcripts, (120 in 3:18−cv−01865−RS) Transcript Order − Future Trial with Daily Transcripts ) Release of Transcript Restriction set for 6/12/2019. (ballbb15S, COURT STAFF) (Filed on 3/14/2019) (Entered: 03/14/2019)
200 USCA Case Number 19−15457 for 198 Notice of Appeal filed by United States Department of Commerce, United States Census Bureau. (gbaS, COURT STAFF) (Filed on 3/20/2019) (Entered: 03/20/2019)
201 STIPULATION WITH PROPOSED ORDER STIPULATION TO EXTEND TIME TO FILE BILL OF COSTS AND MOTION FOR ATTORNEYS FEES filed by Black Alliance For Just Immigration, City Of San Jose. (Attachments: # 1 Declaration DECLARATION OF JOHN F. LIBBY IN SUPPORT OF STIPULATION TO EXTEND TIME TO FILE BILL OF COSTS AND MOTION FOR ATTORNEYS FEES)(Guardado, Ana) (Filed on 3/22/2019) (Entered: 03/22/2019)
202 ORDER by Judge Richard Seeborg granting 201 Stipulation to Extend Time to File Bill of Costs and Motion for Attorneys' Fees.(cl, COURT STAFF) (Filed on 3/25/2019) (Entered: 03/25/2019)
203 NOTICE by Black Alliance For Just Immigration, City Of San Jose of Proceedings in Related Action (Attachments: # 1 Exhibit A)(Guardado, Ana) (Filed on 5/30/2019) (Entered: 05/30/2019)
204 ADMINISTRATIVE MOTION Telephonic Status Conference on July 5, 2019 filed by Black Alliance For Just Immigration, City Of San Jose. Responses due by 7/8/2019. (Guardado, Ana) (Filed on 7/3/2019) (Entered: 07/03/2019)
205 NOTICE of Appearance by Glenn M. Girdharry (Girdharry, Glenn) (Filed on 7/8/2019) (Entered: 07/08/2019)
206 NOTICE by Ron Jarmin, Wilbur L. Ross, United States Census Bureau, United States Department of Commerce of withdrawal and substitution of counsel (Girdharry, Glenn) (Filed on 7/8/2019) (Entered: 07/08/2019)
207 NOTICE of Change In Counsel by Salvador E Perez (Perez, Salvador) (Filed on 7/8/2019) (Entered: 07/08/2019)
208 CLERK'S NOTICE SCHEDULING STATUS HEARING. Status Hearing scheduled for 7/10/2019 at 11:00 AM to be held telephonic. All parties shall appear telephonically and must contact Court Conference at (866) 582−6878 to arrange their participation. (This is a text−only entry generated by the court. There is no document associated with this entry.) (cl, COURT STAFF) (Filed on 7/9/2019) (Entered: 07/09/2019)
209 NOTICE of Appearance by David Michael Morrell (Morrell, David) (Filed on 7/9/2019) (Entered: 07/09/2019)
210 NOTICE of Appearance by Daniel A. Schiffer (Schiffer, Daniel) (Filed on 7/9/2019) (Entered: 07/09/2019)
211 NOTICE of Appearance by Christopher Robert Bachner Reimer (Reimer, Christopher) (Filed on 7/9/2019) (Entered: 07/09/2019)
212 NOTICE of Appearance by Colin A. Kisor (Kisor, Colin) (Filed on 7/9/2019) (Entered: 07/09/2019)
Set/Reset Hearing Status Conference set for 7/10/2019 at 11:00 AM to be held telephonic in San Francisco, Courtroom 03, 17th Floor before Judge Richard Seeborg. (cl, COURT STAFF) (Filed on 7/10/2019) (Entered: 07/10/2019)
213 Minute Entry for proceedings held before Judge Richard Seeborg: Status Conference held telephonically on 7/10/2019.Total Time in Court: 20 minutes. Court Reporter: Raynee Mercado.

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 41 of 43

Plaintiffs Attorney: Gabriel Boutin, Sue Ann Salmon Evans, Valerie Flores, Jon Greenbaum, John Libby, Keith Yeomans, Charles Coleman, Nora Frimann, David Holtzman, Malia McPherson, Mark Rosenbaum, R. Matthew Wise − Telephonic.

Defendants Attorney: Daniel Schiffer, Christopher Reimer − Telephonic.

07/10/2019 07/10/2019 07/11/2019 07/11/2019 07/11/2019 07/11/2019 07/11/2019 07/11/2019 07/11/2019
07/11/2019 07/30/2019 07/30/2019

(This is a text−only entry generated by the court. There is no document associated with this entry.) (cl, COURT STAFF) (Date Filed: 7/10/2019) (Entered: 07/10/2019)
214 TRANSCRIPT ORDER for proceedings held on 7/10/2019 before Judge Richard Seeborg by Black Alliance For Just Immigration, City Of San Jose, for Court Reporter Raynee Mercado. (Guardado, Ana) (Filed on 7/10/2019) (Entered: 07/10/2019)
215 ***ERRONEOUS ENTRY, PLEASE DISREGARD*** NOTICE of Appearance by Emil Petrossian (Petrossian, Emil) (Filed on 7/10/2019) Modified on 7/11/2019 (gbaS, COURT STAFF). (Entered: 07/10/2019)
216 TRANSCRIPT ORDER for proceedings held on 7/10/2019 before Judge Richard Seeborg by Wilbur L. Ross, United States Census Bureau, United States Department of Commerce, for Court Reporter Raynee Mercado. (Reimer, Christopher) (Filed on 7/11/2019) (Entered: 07/11/2019)
217 NOTICE of Appearance by Gerald Brinton Lucas (Lucas, Gerald) (Filed on 7/11/2019) (Entered: 07/11/2019)
218 NOTICE of Appearance by Christopher A. Bates (Bates, Christopher) (Filed on 7/11/2019) (Entered: 07/11/2019)
219 TRANSCRIPT ORDER for proceedings held on 07/10/2019 before Judge Richard Seeborg for Court Reporter Raynee Mercado. (rjdS, COURT STAFF) (Filed on 7/11/2019) (Entered: 07/11/2019)
220 TRANSCRIPT ORDER for proceedings held on 07/10/2019 before Judge Richard Seeborg for Court Reporter Raynee Mercado. (rjdS, COURT STAFF) (Filed on 7/11/2019) (Entered: 07/11/2019)
221 TRANSCRIPT ORDER for proceedings held on 07/10/2019 before Judge Richard Seeborg for Court Reporter Raynee Mercado. (rjdS, COURT STAFF) (Filed on 7/11/2019) (Entered: 07/11/2019)
222 Transcript of Proceedings held on July 10, 2019, before Judge Richard Seeborg. Court Reporter Raynee H. Mercado, CSR, telephone number 510−565−7228, cacsr8258@gmail.com. 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 (216 in 3:18−cv−02279−RS) Transcript Order, (220 in 3:18−cv−02279−RS, 231 in 3:18−cv−01865−RS) Transcript Order, (214 in 3:18−cv−02279−RS) Transcript Order, (221 in 3:18−cv−02279−RS, 232 in 3:18−cv−01865−RS) Transcript Order, (219 in 3:18−cv−02279−RS, 230 in 3:18−cv−01865−RS) Transcript Order ) Release of Transcript Restriction set for 10/9/2019. (rhm) (Filed on 7/11/2019) (Entered: 07/11/2019)
223 CORRECTED NOTICE of Appearance re 215 Notice of Appearance by Mario Cardona (Cardona, Mario) (Filed on 7/11/2019) Modified on 7/11/2019 (gbaS, COURT STAFF). (Entered: 07/11/2019)
224 ORDER of USCA as to 198 Notice of Appeal filed by United States Department of Commerce, United States Census Bureau. (gbaS, COURT STAFF) (Filed on 7/30/2019) (Entered: 07/30/2019)
225 UNOPPOED MOTION to Enter Final Judgment After Remand filed by Black Alliance For Just Immigration, City Of San Jose. Responses due by 8/13/2019. Replies due by 8/20/2019. (Libby, John) (Filed on 7/30/2019) Modified on 7/31/2019 (gbaS,

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 42 of 43

07/30/2019 07/30/2019 08/01/2019 08/01/2019 08/15/2019
08/29/2019 08/30/2019 09/12/2019 09/12/2019 09/26/2019 09/26/2019 10/11/2019 10/11/2019

COURT STAFF). (Entered: 07/30/2019)
226 Statement of Non−Opposition to 225 Unopposed Motion to Enter Final Judgment after Remand by Wilbur L. Ross, United States Census Bureau, United States Department of Commerce. (Schiffer, Daniel) (Filed on 7/30/2019) Modified on 7/31/2019 (gbaS, COURT STAFF). (Entered: 07/30/2019)
Set/Reset Deadlines as to 225 MOTION to Enter Final Judgment After Remand (Unopposed Motion) . Motion Hearing set for 9/12/2019 01:30 PM in San Francisco, Courtroom 03, 17th Floor before Judge Richard Seeborg. (tlS, COURT STAFF) (Filed on 7/30/2019) (Entered: 07/30/2019)
227 ORDER GRANTING MOTION TO ENTER FINAL JUDGMENT AFTER REMAND by Judge Richard Seeborg granting 225 Motion To Enter Judgement After Remand.(tlS, COURT STAFF) (Filed on 8/1/2019) (Entered: 08/01/2019)
228 FINAL JUDGMENT AFTER REMAND, ORDER OF VACATUR, AND PERMANENT INJUNCTION. Signed by Judge Richard Seeborg on 8/1/2019. (tlS, COURT STAFF) (Filed on 8/1/2019) (Entered: 08/01/2019)
229 BILL OF COSTS by Black Alliance For Just Immigration, City Of San Jose. Objections due by 8/29/2019. (Attachments: # 1 Declaration of John F. Libby in Support of Bill of Costs of Plaintiffs City of San Jose and Black Alliance For Just Immigration, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7)(Cardona, Mario) (Filed on 8/15/2019) (Entered: 08/15/2019)
230 STIPULATION WITH PROPOSED ORDER Stipulation and [Proposed] Order Re: Deadlines For Plaintiffs' Forthcoming Motion For Attorneys' Fees and Defendants' Objections To Plaintiffs' Bill of Costs filed by Black Alliance For Just Immigration, City Of San Jose. (Cardona, Mario) (Filed on 8/29/2019) (Entered: 08/29/2019)
231 ORDER by Judge Richard Seeborg granting 230 Stipulation re: deadlines for plaintiffs' forthcoming motion for attorneys' fees and defendants' objections to plaintiffs' bill of costs. (cl, COURT STAFF) (Filed on 8/30/2019) (Entered: 08/30/2019)
232 STIPULATION WITH PROPOSED ORDER Further Extending Deadlines For Plaintiffs' Motion For Attorneys' Fees and Defendants' Objections to Plaintiffs' Bill of Costs filed by Black Alliance For Just Immigration, City Of San Jose. (Cardona, Mario) (Filed on 9/12/2019) (Entered: 09/12/2019)
233 ORDER by Judge Richard Seeborg granting 232 Stipulation further extending deadlines for plaintiffs' forthcoming motion for attorneys fees and defendants' objections to plaintiffs' bill of costs. (cl, COURT STAFF) (Filed on 9/12/2019) (Entered: 09/12/2019)
234 STIPULATION WITH PROPOSED ORDER Further Extending Deadlines For Plaintiffs' Forthcoming Motion For Attorneys' Fees and Defendants' Objections To Plaintiffs' Bill of Costs filed by Black Alliance For Just Immigration, City Of San Jose. (Cardona, Mario) (Filed on 9/26/2019) (Entered: 09/26/2019)
235 ORDER by Judge Richard Seeborg granting 234 Stipulation extending deadlines for Plaintiffs' forthcoming motion for attorneys' fees and defendants' objections to plaintiffs' bill of costs. (cl, COURT STAFF) (Filed on 9/26/2019) (Entered: 09/26/2019)
236 STIPULATION WITH PROPOSED ORDER Further Extending Deadlines For Plaintiffs' Motion For Attorneys' Fees and Defendants' Objections To Plaintiffs' Bill of Costs filed by Black Alliance For Just Immigration, City Of San Jose. (Cardona, Mario) (Filed on 10/11/2019) (Entered: 10/11/2019)
237 ORDER by Judge Richard Seeborg granting 236 Stipulation Extending Deadlines For Plaintiffs' Motion For Attorneys' Fees and Defendants' Objections To Plaintiffs' Bill of Costs. (cl, COURT STAFF) (Filed on 10/11/2019) (Entered: 10/11/2019)

Case: 3:18-cv-2279 As of: 11/23/2019 09:39 AM PST 43 of 43

10/24/2019 10/25/2019 11/07/2019 11/07/2019 11/18/2019

238 STIPULATION WITH PROPOSED ORDER Further Extending Deadlines for Plaintiffs' Motion for Attorneys' Fees and Defendants' Objections to Plaintiffs' Bill of Costs filed by Black Alliance For Just Immigration, City Of San Jose. (Cardona, Mario) (Filed on 10/24/2019) (Entered: 10/24/2019)
239 ORDER by Judge Richard Seeborg granting 238 Stipulation Extending Deadlines for Plaintiffs' Forthcoming Motion for Attorneys' Fees and Defendants' Objections to Plaintiffs' Bill of Costs. (cl, COURT STAFF) (Filed on 10/25/2019) (Entered: 10/25/2019)
240 STIPULATION WITH PROPOSED ORDER Further Extending Deadlines For Plaintiffs' Motion For Attorneys' Fees and Defendants' Objections To Plaintiffs' Bill of Costs filed by Black Alliance For Just Immigration, City Of San Jose. (Cardona, Mario) (Filed on 11/7/2019) (Entered: 11/07/2019)
241 ORDER by Judge Richard Seeborg granting 240 Stipulation Extending Deadlines for Plaintiffs' forthcoming motion for attorneys' fees and Defendants' Objections to Plaintiffs' Bill of Costs. (clS, COURT STAFF) (Filed on 11/7/2019) (Entered: 11/07/2019)
242 NOTICE by Black Alliance For Just Immigration, City Of San Jose Notice of Settlement RE: Attorneys' Fees and Costs (Cardona, Mario) (Filed on 11/18/2019) (Entered: 11/18/2019)

 
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MANATT, PHELPS & PHILLIPS, LLP JOHN F. LIBBY (Bar No. CA 128207) E-mail: jlibby@manatt.com JOHN W. MCGUINNESS (Bar No. CA 277322) E-mail: jmcguinness@manatt.com EMIL PETROSSIAN (Bar No. CA 264222) E-mail: epetrossian@manatt.com 11355 West Olympic Boulevard Los Angeles, California 90064 Telephone: (310) 312-4000 Facsimile: (310) 312-4224 LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW KRISTEN CLARKE (Pro Hac Vice Application Forthcoming) Email: kclarke@lawyerscommittee.org JON M. GREENBAUM (Bar No. CA 166733) E-mail: jgreenbaum@lawyerscommittee.org EZRA D. ROSENBERG (Pro Hac Vice Application Forthcoming) E-mail: erosenberg@lawyerscommittee.org DORIAN L. SPENCE (Pro Hac Vice Application Forthcoming) E-mail: dspence@lawyerscommittee.org 1401 New York Avenue NW, Suite 400 Washington, DC 20005 Telephone: (202) 662-8600 Facsimile: (202) 783-0857 PUBLIC COUNSEL MARK ROSENBAUM (Bar No. CA 59940) E-mail: mrosenbaum@publiccounsel.org 610 South Ardmore Avenue Los Angeles, California 90005 Telephone: (213) 385-2977 Facsimile: (213) 385-9089 Attorneys for Plaintiffs CITY OF SAN JOSE and BLACK ALLIANCE FOR JUST IMMIGRATION [Additional Counsel Listed on Signature Page]
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

CITY OF SAN JOSE, a municipal corporation; and BLACK ALLIANCE FOR JUST IMMIGRATION, a California nonprofit corporation,
Plaintiffs,

Case No. 5:18-cv-2279 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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vs. WILBUR L. ROSS, JR., in his official capacity as Secretary of the U.S. Department of Commerce; U.S. DEPARTMENT OF COMMERCE; RON JARMIN, in his official capacity as Acting Director of the U.S. Census Bureau; U.S. CENSUS BUREAU,
Defendants.

[Administrative Procedure Act Case]

INTRODUCTION 1. The City of San Jose, a municipal corporation (“San Jose” or “the City”), and the Black Alliance for Just Immigration, a California nonprofit corporation (“BAJI”), (collectively “Plaintiffs”) seek declaratory and injunctive relief against the U.S. Department of Commerce, Wilbur L. Ross, Jr., in his official capacity as Secretary of the U.S. Department of Commerce, the U.S. Census Bureau, and Ron Jarmin in his official capacity as Acting Director of the U.S. Census Bureau (collectively, “Defendants”) for violating the United States Constitution and the Administrative Procedure Act (“APA”) by arbitrarily and capriciously adding new and untested questions to the 2020 Decennial Census that will require all United States residents to disclose whether they are citizens. If these questions are added to the Census, there will be an increase in the undercount of persons living in San Jose, and specifically an increased undercount of minority populations, leading to the unconstitutional and unlawful loss of representation in the United States House of Representatives and millions of dollars of federal funds. In addition, BAJI’s mission to advance racial, social, and economic justice for the minority and immigrant communities it serves will be frustrated by the inclusion of citizenship questions in the 2020 Census. Further, BAJI will have to divert organizational resources both to educate its constituents regarding issues posed by these questions and to counteract their harmful effect.
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2. The Constitution provides that all persons in each state, regardless of citizenship status, shall be counted every ten years. U.S. Const., art. I, § 2, cl. 3, and amend. XIV, § 2. The Constitution mandates this “actual Enumeration” of the population for the purpose of apportioning congressional representatives among the states. U.S. Const., art. I, § 2, cl. 3. It is long-settled that all persons residing in the United States—citizens and non-citizens alike—must be counted to fulfill the Constitution’s “actual Enumeration” mandate. Id.; Fed’n for Am. Immigration Reform v. Klutznick, 486 F. Supp. 564, 576 (D.D.C. 1980); see also Plyler v. Doe, 457 U.S. 202, 210 (1982) (holding that the Equal Protection Clause applies to persons who are in the country without proper authorization because “[w]hatever his status under the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that term”).
3. The U.S. Census Bureau (“Bureau”), a division of the U.S. Department of Commerce, will conduct the next census, also known as the “decennial census,” in 2020 (“2020 Census”). The census surveys the number of persons in each household and, in the process, gathers certain demographic information about those persons. The Bureau’s stated goal in administering the census “is to count every person living in the United States once, only once and in the right place.”
4. As an administrative agency of the executive branch, the Bureau is subject to the APA, 5 U.S.C. §§ 551 et seq. Among other provisions, the APA requires that agency action not be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” not be “contrary to constitutional right, power, privilege or immunity,” and not be “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706.
5. Not since 1950 has the decennial census asked whether each respondent is a citizen of the United States. Consistent with modern practice, and as required by statute under 13 U.S.C. § 141(f)(1), the Bureau submitted to
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Congress in March 2017 a report of the proposed subjects planned for the 2020 Census. None of the subjects related to citizenship or immigration status.
6. However, in a December 12, 2017 letter, late in the census planning process and months after the statutory deadline for reporting proposed subjects, the General Counsel of the Justice and Management Division of the U.S. Department of Justice requested that the Bureau include a citizenship question on the 2020 Census. While the letter suggested that adding a citizenship question would assist the Department of Justice in enforcing “Section 2 of the Voting Rights Act,” codified at 52 U.S.C. § 10301, the letter did not address whether or how a citizenship question would facilitate the Bureau’s constitutional duty to capture the “actual Enumeration” of the U.S. population. Nor did the letter consider whether adding a citizenship question would serve the Voting Rights Act’s purpose of ensuring fair representation for all communities, ignoring substantial evidence— and the Bureau’s own past admissions—that fewer people would respond to the 2020 Census if it includes a citizenship question. See Ex. 1 (Dec. 12, 2017, Letter from Arthur E. Gary to Dr. Ron Jarmin).
7. On March 26, 2018, the Department of Commerce, setting aside decades of practice, announced that the final list of census questions that it will submit to Congress will include a question asking the citizenship status of every person in every household in the United States. Ignoring its own past findings, and highlighting the arbitrary and capricious nature of its decision, the Department of Commerce asserted that it “is not able to determine definitively how inclusion of a citizenship question on the decennial census will impact responsiveness” to the 2020 Census. Ex. 2 at 7 (Mar. 26, 2018, Letter from Wilbur Ross to Karen Dunn Kelley).
8. The Department’s action violated the APA’s prohibition against arbitrary and capricious actions, as well as actions that violate the Constitution and exceed the agency’s statutory authority. The Bureau departed from its long-
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standing and well-established processes for revising the decennial census questionnaire as well as the schedule for reporting subjects of the census to Congress. While changes to questions on the decennial census typically take several years to test, evaluate, and implement, Defendants’ decision-making process in this instance—to the extent it even took place—was compressed into a hasty and unprecedented period of fewer than four months, and well after it had reported to Congress on the planned subjects for the 2020 Census.
9. The citizenship question asks, “Is this person a citizen of the United States?” and requires the respondent to select one of the following responses:
(1) “Yes, born in the United States”; (2) “Yes, born in Puerto Rico, Guam, the U.S. Virgin Islands, or Northern Marianas”; (3) “Yes, born abroad of U.S. citizen parent or parents”; (4) “Yes, citizen by naturalization – Print year of naturalization”; or (5) “No, not a U.S. citizen.”
10. Including the citizenship question on the 2020 Census will directly impede the Bureau from achieving its objective of making an “actual Enumeration” of the U.S. population. Ultimately, it will make the census data less accurate and reliable. Numerous studies—including those conducted by the Bureau itself—point to the same conclusion: Asking about citizenship will likely reduce the number of non-citizens and their citizen relatives or household members who respond to the
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2020 Census, and result in an increased undercount of minority populations. At least four former Bureau directors share the view that inquiring about citizenship status on the census “would likely exacerbate privacy concerns and lead to inaccurate responses from non-citizens worried about a government record of their immigration status.” Brief of Former Directors of the U.S. Census Bureau as Amici Curiae in Support of Appellees at 23, Evenwel v. Abbott, 136 S.Ct. 1120 (2016) (No. 14-940), 2015 WL 5675832, at *23. “The sum effect would be bad Census data.” Id. at 25.
11. San Jose and its residents will suffer harm through both lost representation and foregone federal funding if the citizenship question is included on the 2020 Census. The data from the 2020 Census will be used not only to allocate congressional seats but also to determine funding for public health, education, transportation and neighborhood improvements, all of which are to be determined based on population as determined by the Census. Including the citizenship question will result in undercounting in San Jose as its residents—both non-citizens and their citizen relatives—are discouraged from responding. The inaccurate data will in turn result in funding allocations that will disadvantage San Jose and its residents.
12. BAJI will also be harmed due to the diversion of essential and limited resources—including time and money—from other important matters that it ordinarily would have been addressing through dialogues, presentations, workshops, publications, technical assistance and trainings to build alliances between African American and immigrant communities, in order to educate its diverse constituents regarding issues related to the census citizenship questions. Like the residents in San Jose, the minority and immigrant communities BAJI serves will also be deterred from responding to the 2020 Census because of the citizenship question. Thus, BAJI will have to further divert resources to combat any resulting political dilution, loss of federal funding, and other harmful effects
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suffered by the communities it serves. BAJI is further injured because Defendants’ activities impair BAJI’s ability to carry out its mission to advance equity and justice for minority and immigrant communities through its advocacy work.
13. San Jose and BAJI therefore seek a declaration that including the citizenship question on the 2020 Census violates the Constitution’s “actual Enumeration” mandate and the APA’s prohibition against “arbitrary and capricious” agency action. Further, to avoid irreparable harm, San Jose and BAJI seek an injunction prohibiting the Bureau from including the citizenship question on the 2020 Census.
JURISDICTION AND VENUE 14. This Court has subject matter jurisdiction in this action under 28 U.S.C. § 1331 (action arising under the laws of the United States), 28 U.S.C. § 1361 (action to compel officer or agency to perform duty owed to Plaintiff), and 5 U.S.C. §§ 701-706 (judicial review under APA). An actual controversy exists between the parties within the meaning of 28 U.S.C. § 2201(a), and this Court may grant declaratory relief, injunctive relief, and other relief against Defendants pursuant to 28 U.S.C. §§ 2201-2202 and 5 U.S.C. §§ 705–706. 15. Defendants’ submission of the final census questions to Congress no later than March 31, 2018, is a final agency action and is therefore judicially reviewable under the APA. 5 U.S.C. §§ 704, 706. 16. Venue properly lies within the Northern District of California because Plaintiff, the City of San Jose, is a public entity in this judicial district; BAJI, a California nonprofit corporation, maintains an office and provides services in this judicial district; and a substantial part of the events or omissions giving rise to this action will occur or have occurred in this district. 28 U.S.C. § 1391(e). // // //
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INTRADISTRICT ASSIGNMENT 17. Under Civil Local Rules 3-5(b) and 3-2(c), Plaintiffs allege that assignment of this action to the San Jose division of this Court is proper. Plaintiffs further allege that transfer of this action to the San Francisco division of this Court may be proper in light of a pending related action, State of California v. Wilbur J. Ross, Jr., Case No. 3:18-cv-01865, to serve the interests of justice and for the convenience of parties and witnesses.
PARTIES 18. Plaintiff City of San Jose is a municipal corporation, organized as a Charter City under the California Constitution and the laws of the State of California, and is located in the County of Santa Clara. It is the tenth-largest city in the United States. 19. What is today San Jose had originally been home to the Ohlone Indians for hundreds of years. San Jose was founded by Spain on November 29, 1777, as El Pueblo de San Jose de Guadalupe. San Jose was California’s first civilian settlement. In 1821, San Jose became part of the newly independent country of Mexico. After the Treaty of Guadalupe Hidalgo ceded California to the United States at the end of the Mexican-American War in 1848, San Jose became California’s first incorporated U.S. city. Since its founding, San Jose has always been a home to immigrants, with nearly 40% of its current population having been born in another country. 20. San Jose is bringing this action on its own behalf as a municipal corporation. City of Sausalito v. O’Neill, 386 F.3d 1186, 1200 (9th Cir. 2004); 5 U.S.C. § 551(2). San Jose has standing because Defendants’ actions have caused and will continue to cause San Jose to suffer concrete and substantial harm, and such harm would be redressed by this lawsuit. San Jose has an interest in ensuring that the 2020 Census counts all of its residents. There are no other adequate
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remedies available because the failure to capture accurate data in the 2020 Census cannot be reversed.
21. Plaintiff BAJI is a California nonprofit corporation with offices in Oakland, California and Los Angeles, California, as well as in New York, New York, and Atlanta, Georgia. BAJI was founded in April 2006 in response to the mobilization of immigrant communities and their supporters against repressive immigration bills that were pending before the United States Congress at the time. Propelled by the belief that a thriving multiracial democracy requires racial, social, and economic justice for all, BAJI educates and engages African Americans and Black immigrants to organize and advocate for equality and justice in laws and in their communities through dialogues, presentations, workshops, publications, technical assistance, and trainings.
22. BAJI also builds coalitions and initiates campaigns to advance racial justice, and, at the local and regional levels, provides its partner organizations with relevant training and technical assistance. BAJI’s flagship project is the advancement of just immigration policies and the promotion of cultural shifts necessary to secure equal rights for its members and their communities.
23. BAJI has direct organizational standing to bring suit because its essential and limited resources—including time and money —will be diverted from other important matters that it ordinarily would have been addressing through dialogues, presentations, workshops, publications, technical assistance, and trainings to build alliances between African American and immigrant communities, in order to educate its constituents regarding, and counteract the harmful effect of, the inclusion of citizenship questions into the 2020 Census. Fair Housing of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002); see also Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). Additionally, the use of the 2020 Census to question U.S. residents regarding their citizenship status, and associated effects such as discouraging responses, producing fear and anxiety in minority and
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immigrant communities, and reducing both congressional representation and federal funding, frustrate and undermine BAJI’s core mission and will require a further expenditures to investigate the scope of these harms and rigorously mitigate them. Id. As a result, BAJI has suffered and will continue to suffer concrete and substantial harm as a result of Defendants’ actions. There are no other adequate remedies available because the failure to capture accurate data in the 2020 Census cannot be reversed.
24. Defendant Wilbur L. Ross is the Secretary of the U.S. Department of Commerce and is sued in his official capacity. Secretary Ross is responsible for fulfilling the Department of Commerce’s duties under the Constitution, the APA, and the Census Act.
25. Defendant U.S. Department of Commerce is a federal agency. The Department of Commerce, led by Secretary Ross, oversees the Bureau, which is tasked with executing the 2020 Census.
26. Defendant Dr. Ron Jarmin is responsible for performing the nonexclusive functions and duties of the Director of the U.S. Census Bureau and is sued in his official capacity. Dr. Jarmin’s duties include ensuring that the Bureau executes the 2020 Census.
27. Defendant U.S. Census Bureau, the federal government’s largest statistical agency, is an agency within the Department of Commerce, established by Title 13 of the United States Code. See 13 U.S.C. §§ 1 et seq.
SUMMARY OF ALLEGATIONS A. Origin and Purpose of the Census 28. The U.S. Constitution provides legal authority for the census, which it refers to as “Enumeration.” Article I, section 2, clause 3 of the Constitution provides, in relevant part, that “Representatives . . . shall be apportioned among the several States which may be included within this Union, according to their respective Numbers . . . . The actual Enumeration shall be made within three Years
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after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.” The Fourteenth Amendment to the Constitution makes clear that the enumeration must include “the whole number of persons in each state.” The Constitution therefore requires that the enumeration make no distinction between citizens, documented immigrants, or undocumented immigrants. All are persons.
29. Congress has delegated the taking of the census to the Secretary of Commerce. Under 13 U.S.C. § 141(a), “[t]he Secretary shall, in the year 1980 and every 10 years thereafter, take a decennial census of population as of the first day of April of such year.” The Secretary has authority to conduct the census “in such form and content as he may determine.” Id. Likewise, the Bureau Director “is necessarily invested with discretion in matters of form and procedure when these are not specifically provided for by law.” U.S. ex rel. City of Atlanta v. Steuart, 47 F.2d 979, 982 (D.C. Cir. 1931).
30. Defendants’ discretion in taking the census is not unfettered and, in particular, is subject to congressional oversight. Three years before the census, the Secretary must submit to Congress a report proposing the subjects to be included in the census. 13 U.S.C. § 141(f)(1). Two years before the census, the Secretary must submit to Congress the specific questions to be included in the census. Id. § 141(f)(2). The Secretary may later modify the subjects or questions only if he submits a report to Congress finding that “new circumstances exist which necessitate” the modification. Id. § 141(f)(3).
31. Defendants’ discretion in taking the census is also subject to the APA. Under the APA, Defendants must ensure that any agency action is not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” “contrary to constitutional right, power, privilege or immunity,” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706.
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32. Congress, states, and municipalities rely on census data for many purposes, including allocation of federal funding and state and local legislative districting. Wisconsin v. City of New York, 517 U.S. 1, 5-6 (1996); City of Los Angeles v. U.S. Dep’t. of Commerce, 307 F.3d 859, 864 (9th Cir. 2002).
33. Under the direction of the Secretary of Commerce and the Bureau Director, the Bureau conducts the constitutionally required census every ten years by counting all U.S. residents in the place where they live. Besides using the results of the decennial census for the constitutional purpose of determining the number of seats for each state in the House of Representatives, the federal government relies on census data to determine how to distribute billions of dollars of funding each year, including funding for Medicaid, Medicare Part B, the Supplemental Nutrition Assistance Program (SNAP), the State Children’s Health Insurance Program (S-CHIP), and the Highway Planning and Construction Program.
34. The Bureau last included a citizenship question in the decennial census questionnaire in 1950.
35. From 1970 to 2000, the Bureau employed two questionnaires: a “short form” and a “long form.” The short-form questionnaire, which most households received, included a “minimum number of questions” about the race, ethnicity, age, and gender of each occupant. Approximately one out of every six households received the long-form questionnaire, which collected a broader array of social, housing, economic, education, disability, employment, citizenship, and income information.
36. After the 2000 Census, the Bureau discontinued the long-form questionnaire and replaced it, to some degree, with the American Community Survey (“ACS”). Unlike the decennial census, the ACS is not required by the Constitution, and its results do not constitute the enumeration required by the Constitution. While the decennial census requires an actual enumeration of all
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persons residing within the United States, the ACS surveys a statistical sample of the population—over 3.5 million households receive the ACS annually.1 The ACS already contains a citizenship question.
37. On March 28, 2017, Secretary Ross timely submitted a report containing the subjects proposed to be included in the 2020 Census. The subjects, which were unchanged from the 2010 Census, did not include citizenship or immigration status.
B. The Bureau’s Process for Developing Its Survey Content in Advance of the Decennial Census
38. The 2020 Census has been designed and developed in an iterative fashion, incorporating results from various tests conducted over the past decade.2
39. The Bureau develops and tests the content, specific language, order, and layout of the census questionnaire to improve the accuracy of the enumeration. In addition to fulfilling the Bureau’s constitutional duty, this development process involves multiple steps that ensure the accuracy, reliability, and objectivity of the final data, as consistent with prior Bureau practice and as required by the Information Quality Act. Consolidated Appropriations Act, 2001, Pub. L. No. 106554, § 515, 114 Stat. 2763 (Dec. 21, 2000).
40. Government-wide statistical standards adopted under the Information Quality Act require the Commerce Department and the Bureau to carefully design the census questionnaire to “minimize respondent burden while maximizing data quality” and to “achieve the highest rates of response.”3 The standards also require testing each component of the questionnaire to ensure that it operates as intended.
1 See U.S. Census Bureau, American Community Survey Information Guide, (Oct. 2017), https://www.census.gov/content/dam/Census/programssurveys/acs/about/ACS_Information_Guide.pdf. 2 U.S. Census Bureau, 2020 Census Operational Plan (Sept. 2017), https://www2. census.gov/programs-surveys/decennial/2020/program-management/planning-docs/2020-operplan3.pdf. 3 Office of Mgmt. and Budget, Statistical Policy Directive No. 2: Standards and Guidelines for
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41. The questionnaire development process and the evaluation of changes to individual inquiries take several years to complete. For example, the Bureau has spent almost ten years developing and testing the content, specific language, and layout of just one proposed change to the question regarding race and ethnicity on the 2020 questionnaire. From 2008 through 2012, the Bureau conducted comprehensive research into the possibility of combining race and ethnicity into one question on the 2020 Census. The research focused on whether this proposed change would improve respondent understanding of the question and improve the accuracy of race and ethnicity data collected.4
42. The Bureau then spent several years designing and conducting tests in different geographical areas on the proposed change to the question regarding race and ethnicity to explore different alternatives for the language, layout, and instructions regarding a revised question. The testing was designed to assess the accuracy and reliability of alternative forms of asking the proposed question. In 2016, the Bureau conducted outreach to federal agencies and to the public to obtain feedback on the proposed change.5 For example, in August 2016, BAJI organized a meeting between representatives of the Census Bureau and Latinx and African diaspora community leaders in New York to discuss possible changes to the 2020 Census questionnaire that could provide respondents with more accurate options to self-identify their race and/or ethnicity.6
43. The Bureau began conducting major testing of proposed changes to the 2020 Census questionnaire with the 2014 Census Test. At that time, the Bureau assessed wording changes to the race and Hispanic origin question, as well as new
Statistical Surveys §§ 1.3, 1.4, 2.3.1 (2006). 4 U.S. Census Bureau, Research to Improve Data on Race and Ethnicity (2016), https://www.census.gov/about/our-research/race-ethnicity.html. 5 Id. 6 Ramon Taylor, Race Question in US Census Draws Scrutiny, Criticism, Voice of America News (Aug. 23, 2016), https://www.voanews.com/a/race-question-us-census-draws-scrutinycriticism/3477850.html.
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potential response categories for married and unmarried relationships. The 2014 Census Test did not assess the content, wording, or layout of a question regarding citizenship status.
44. The 2015 National Content Test was an opportunity for the Bureau to “compare different versions of questions” prior to making final decisions prior to the 2020 Census.7 While the Bureau tested changes to questions related to race and ethnicity, the Bureau did not design tests of language, layout, or instructions for a question regarding citizenship status. The Bureau announced the results of this test in early March 2017, none of which related to citizenship.8
45. The Bureau had other opportunities during the major tests in 2016 and April 2017 to test its questionnaire for the 2020 Census. However, the questionnaires assessed in these tests did not include a question regarding citizenship status. On information and belief, the Bureau did not begin considering whether to add a demand for citizenship information to the 2020 Census until approximately eight months after it began conducting major testing in 2017.
46. The Bureau concluded its process designing the race and ethnicity questions at the end of 2017, after nine years of evaluation and testing, because it “needed to make a decision on the design of the race and ethnicity questions by December 31, 2017, in order to prepare for the 2020 Census systems, and deliver the final 2020 Census question wording to Congress by March 31, 2018.”9
47. The timing of Secretary Ross’s late decision to include the citizenship question prevented the Bureau from including the question in its only full trial run
7 U.S. Census Bureau, Information Collection Request: 2015 National Content Test, 80 Fed. Reg. 29,609, 29,610 (May 22, 2015). 8 U.S. Census Bureau, 2015 National Content Test Race and Ethnicity Analysis Report (Feb. 28, 2017), https://www2.census.gov/programs-surveys/decennial/2020/programmanagement/final-analysis-reports/2015nct-race-ethnicity-analysis.pdf. 9 U.S. Census Bureau, 2020 Census Program Memorandum Series: 2018.02, Using Two Separate Questions for Race and Ethnicity in 2018 End-to-End Census Test and 2020 Census (Jan. 26, 2018), https://www2.census.gov/programs-surveys/decennial/2020/programmanagement/memo-series/2020-memo-2018_02.pdf.
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of the census count, the 2018 End-to-End Census Test, which commenced its final phase in March 2018 in Providence County, Rhode Island.10 The End-to-End Census Test is a dress rehearsal for the 2020 Census, in which the Bureau tests and validates all major components, including operations, procedures, systems, and infrastructure. The 2018 End-to-End Census Test does not include any request for citizenship information on the questionnaire sent to households. As a result, none of the major tests for the 2020 Census will have assessed the content, language, layout, or order of the citizenship question on the questionnaire, or the impact that the question regarding citizenship status would have on response rates and accuracy.
48. To date, the Bureau has not tested the language or layout of the citizenship question in the context of the decennial census questionnaire.
C. San Jose’s Efforts to Prepare for the 2020 Census 49. The City of San Jose is taking action ahead of the 2020 Census to ensure that as many of its residents as possible are accurately counted. Even without the addition of a question regarding citizenship status, past censuses have undercounted San Jose’s population, costing it millions of dollars. In 2010, the Bureau counted 945,942 residents of San Jose. San Jose estimates that this reflected an undercounting of as many as 70,000 residents, resulting in annual losses of approximately $20 million in federal funds.11 With the addition of the citizenship question, the undercounting and resulting loss will likely be even more significant.
10 Michael Wines, Census Bureau’s Own Expert Panel Rebukes Decision to Add Citizenship Question, N.Y. Times (Mar. 30, 2018), https://www.nytimes.com/2018/03/30/us/census-bureaucitizenship.html. 11 Maureen Naylor, Effort under way for accurate 2020 Census count in San Jose, FOX KTVU News (Mar. 8, 2018), http://www.ktvu.com/news/effort-underway-for-accurate-2020-censuscount-in-san-jose.
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50. San Jose has many foreign-born residents, including undocumented immigrants, who came to the City to live, work, and raise families. Indeed, the City has been an extremely diverse region since the mid-1800s—a factor that has led to immigrants gravitating to San Jose, where there are already established immigrant communities. Waves of immigrants, from China, Mexico, Vietnam, India, Europe, and elsewhere, have played a fundamental role in the creation of three profoundly different industries: first mining, then agriculture, and finally technology in San Jose and the Silicon Valley.12
51. According to the Pew Research Center, San Jose is among the twenty metropolitan areas of the United States with the largest number of undocumented immigrants. As of February 2017, the Pew Research Center estimates that as much as 17% of San Jose’s population consists of undocumented immigrants.13
52. San Jose city leaders are concerned that recent raids by Immigration and Customs Enforcement (“ICE”) could hinder an accurate census count with undocumented families fearful of deportation.
53. Even without the added burden of a citizenship question, the U.S. Census Bureau reports that households with immigrant laborers “may not be willing to respond to the census or able to provide data for their housemates.”14
54. To improve the accuracy of the 2020 Census in San Jose, on December 2, 2017, representatives from six San Jose nonprofit organizations joined San Jose and the nonprofit organization Cities of Service to test a new community addressmapping methodology and text-messaging tool that will help the City prepare for
12 City of San Jose, Envision San Jose 2040: A Brief History of San Jose (Aug. 8, 2013), http://www.sanjoseca.gov/DocumentCenter/View/19862. 13 Jeffrey S. Passel and D’Vera Cohn, 20 metro areas are home to six-in-ten unauthorized immigrants in U.S., Pew Research Center (Feb. 9, 2017), http://www.pewresearch.org/facttank/2017/02/09/us-metro-areas-unauthorized-immigrants/. 14 Herbert F. Stackhouse and Sarah Brady, Census 2000 Mail Return Rates Final Report, U.S. Census Bureau (Jan. 30, 2003), https://www.census.gov/pred/www/rpts/A.7.b.pdf.
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the 2020 Census.15 San Jose will rely on community volunteers in spring 2018 to scour neighborhoods where it suspects many families are doubled up or living in unpermitted housing.16 The volunteers will use a texting app San Jose tested in December to identify unofficial units. The City will then flag them on the Bureau’s master address list for San Jose.
55. San Jose has taken steps to increase participation in the 2020 Census, in part because of fears that immigrants will be undercounted, particularly in the current political climate. In an article on cities worried about census undercounting, the mayor of San Jose was quoted in The New York Times as stating, “Rumors of ICE raids are on Spanish-speaking radio every other day, and you’ve got this enormous fear from residents about talking to the government. You do everything you can to communicate to people, ‘Hey you’re safe with the city, please talk to us.’”17
56. On February 6, 2018, the mayor of San Jose signed a letter to Secretary Wilbur Ross urging him not to add a question on citizenship to the census, noting that “experts, elected officials, and community leaders all agree that adding a question on citizenship in particular will lower initial response.”18
57. Santa Clara County, which includes San Jose, also has taken steps to increase participation in the 2020 Census and voice its concern about the inclusion of a citizenship question. On February 16, 2018, Santa Clara County filed a
15 Rosalind Becker, City of San José Brings Tech and People Together to Prepare for 2020 Census, Cities of Service (Dec. 14, 2017), https://citiesofservice.org/stories/city-san-jose-bringstech-people-together-prepare-2020-census/. 16 Emily Badger, Extra Doorbells, Satellite Dishes: How Cities Search for People the Census May Miss, N.Y. Times (Feb. 22, 2018), https://www.nytimes.com/2018/02/22/upshot/censuscities-undercounting-immigrants.html. 17 Id. 18 Mitchell J. Landrieu, New Orleans Mayor, et al., The United States Conference of Mayors, to the Honorable Wilbur Ross, Secretary of Commerce, U.S. Dep’t. of Commerce (Feb. 6, 2018), http://www.usmayors.org/wp-content/uploads/2018/02/20180206-census-letter.pdf.
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Freedom of Information Act request concerning the possible inclusion of a
citizenship question on the 2020 Census and information on how the Bureau plans to protect the privacy of individuals who respond to the Census.19 Santa Clara
County noted in its press release that “[e]xperts have emphasized the potential
dampening effect of such a question [on citizenship] on census response rates in diverse communities like Santa Clara County.”20
58. San Jose has spent approximately $50,000 on its efforts to prepare for
the 2020 Census to date, and it anticipates substantial additional costs.
D. BAJI Advocates for Accurate Census Data for Minority
Communities and Proper Representation of the Growing Black
Immigrant Population
59. BAJI has consistently advocated for equitable political representation
of minority and immigrant communities. Its 2016 meeting with Bureau
representatives to press for a 2020 Census questionnaire that could obtain more
accurate data regarding the race and ethnicity of its respondents was an extension of
BAJI’s efforts to bolster federal funding for historically undercounted and under-
resourced minority and immigrant communities.
60. BAJI has also partnered with the Immigrant Rights Clinic at New York
University School of Law to produce a comprehensive, statistical report on the
growing population of Black or African American immigrants in the United States.21 The report drew attention to the social, political, and economic conditions
19 Letter from James R. Williams, County Counsel, and Danielle L. Goldstein, Deputy County Counsel, County of Santa Clara, to Vernon E. Curry, Freedom of Information Act Officer, U.S. Census Bureau (Feb. 16, 2018), https://www.sccgov.org/sites/opa/newsroom/Documents/Census% 20FIOA%20request.pdf. 20 Press Release, Office of the County Counsel, County of Santa Clara, County of Santa Clara Files Request for Information on Possible Census Citizenship Question and Privacy Concerns (Feb. 16, 2018), https://www.sccgov.org/sites/opa/newsroom/Documents/FOIA% 20press%20release%202.16.18%20FINAL.pdf. 21 Juliana Morgan-Trostle and Kexin Zheng, New York University School of Law Immigrant
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of this diverse population and provides federal, state, and local recommendations based on this data. Based on its broad experience advancing equal rights for minority and immigrant communities, BAJI has warned the public that the inclusion of the citizenship question in the 2020 Census will instill fear and intimidation in Black immigrant communities and suppress their political representation. BAJI has diverted, and will continue to divert, resources to raise awareness regarding the new census citizenship questions and the related issues.
E. The U.S. Department of Justice’s Request to Add a Citizenship Question to the 2020 Census
61. Nearly nine months after the subjects for the 2020 Census had been identified, on December 12, 2017, the General Counsel of the Justice and Management Division of the U.S. Department of Justice sent a letter to the Bureau requesting the inclusion of a citizenship question on the 2020 Census. The Department of Justice’s purported rationale for requesting the addition of a citizenship question was to assist the Department of Justice with enforcing Section 2 of the Voting Rights Act.
62. On March 26, 2018, setting aside decades of practice regarding the decennial census, Secretary Ross and the Department of Commerce announced that the final list of census questions that they will submit to Congress will include a question on citizenship status. Specifically, the question will ask, for every member of every household, whether that person is a citizen of the United States. The question also will ask whether a citizen was naturalized, born “in the United States,” born “in Puerto Rico, Guam, the U.S. Virgin Islands, or Northern Marianas,” or “born abroad to U.S. citizen parent or parents.”22
Rights Clinic, and Carl Lipscombe, Black Alliance for Just Immigration, The State of Black Immigrants (2016), http://www.stateofblackimmigrants.com/assets/sobi-fullreport-jan22.pdf. 22 U.S. Census Bureau, Questions Planned for the 2020 Census & American Community Survey (Mar. 29, 2018) at 7, https://www2.census.gov/library/publications/decennial/2020/operations/planned-questions-2020acs.pdf.
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63. Consistent with the Department of Justice’s December 2017 letter, the

purported rationale for including the citizenship question on the 2020 Census is that

“[k]nowing how many people reside in the community and how many of those

people are citizens, in combination with other information, provides the statistical

information that helps the government enforce Section 2 of the Voting Rights Act and its protections against discrimination in voting.”23 But including a citizenship

question on the 2020 Census is likely to decrease the accuracy of the 2020 Census

and undermine the core objective of the Census by deterring responses from non-

citizens and their relatives, many of whom are members of the minority populations

that Section 2 of the Voting Rights Act is designed to protect. Thus, including the

question actually undermines the Voting Rights Act’s purpose of ensuring fair

representation for all communities. See Ex. 1. Further, the detail requested by the

citizenship questions, concerning whether respondents were citizens at birth or

naturalized, or where citizens were born, can serve no purpose whatsoever in the enforcement of Section 2 of the Voting Rights Act.

64. In his March 26, 2018, letter, Secretary Ross stated that, to address the

Department of Justice’s request, he had determined that the best option was to add

the ACS citizenship question to the decennial census. Underscoring the arbitrary

and capricious nature of his decision, Secretary Ross speculated that the citizenship

question may not cause an undercount because “there is no information available to

determine the number of people who would in fact not respond due to a citizenship question being added, and no one has identified any mechanism for making such a

determination.” Ex. 2 at 5. Secretary Ross concluded illogically that “the need for

accurate citizenship data” was worth the risk of an undercount. Id.

65. Defendants failed to identify and explain any “new circumstances” that

“necessitated” this modification to the subjects Secretary Ross submitted to

Congress in 2017, as required by statute. 13 U.S.C. § 141(f)(3).

23 Id.

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66. The Census does not produce citizenship data at a level below the block group, out of privacy concerns. By including the citizenship data for all households, the data would be available at the census block level. In some cases, a census block only includes one household and, where that is the case, the citizenship status of the individuals in that household would be in the public domain.
67. In the over fifty years since the Voting Rights Act’s enactment, the Bureau has never asked about citizenship when conducting its 100% enumeration of the population. As Kenneth Prewitt, a director of the Bureau under President Clinton, explained recently to The New York Times, “It’s certainly unnecessary . . . . The Voting Rights Act is being administered very well with data from the American Community Survey. The Justice Department has ruled on that a number of times over the last 15 years.”24
68. Moreover, in voting rights litigation following the 2010 Census, including in at least one case brought by the Department of Justice, federal courts were able to rely on the citizenship data contained in the ACS in analyzing claims under Section 2 of the Voting Rights Act. Courts regularly rely on ACS data to calculate “citizen voting age population.” See, e.g., Perez v. Abbott, 250 F. Supp. 3d 123, 133 (W.D. Tex. 2017); Montes v. City of Yakima, 40 F. Supp. 3d 1377, 1392 (E.D. Wash. 2014); Cisneros v. Pasadena Indep. Sch. Dist., No. 4:12-CV2579, 2014 WL 1668500, at *8 (S.D. Tex. Apr. 25, 2014); Rodriguez v. Harris County, 964 F. Supp. 2d 686, 727 (S.D. Tex. 2013), aff’d sub nom. Gonzalez v. Harris County, 601 F. App’x 255 (5th Cir. 2015).
69. Data collected through the decennial census would not provide a “reliable calculation” of “citizen voting age population” in any event, because
24 Michael Wines and Emily Baumgaertner, At Least Twelve States to Sue Trump Administration Over Census Citizenship Question, N.Y. Times (Mar. 27, 2018), https://www.nytimes.com/2018/03/27/us/census-citizenship-question.html.
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citizenship information collected decennially will quickly become outdated and less reliable over the course of the subsequent decade.
70. Including a question regarding citizenship status on the 2020 Census will undermine, not advance, the goals of the Voting Rights Act. A question regarding citizenship that leads to a systematic undercount of minority populations across the United States will impair fair representation of those groups and the states in which they live. As a result, the purported reasoning that the citizenship question is necessary for enforcement of Section 2 of the Voting Rights Act is a pretext for other unstated and ulterior purposes.
F. The Chilling Effect of Adding the Citizenship Question to the Census Form
71. The Bureau is well aware that adding the citizenship question to the census form will directly cause an undercount in the 2020 Census.
72. The Bureau itself has recognized that minority and immigrant populations have historically been challenging groups to count accurately in the decennial census, due to issues such as language barriers and distrust of government.25
73. The risk of undercounting is pronounced in the current political environment. San Jose residents and members of the communities served by BAJI will not consider whether to respond to the citizenship question in a vacuum. Rather, the current Administration’s heightened anti-immigrant rhetoric and pattern of policies and actions that target immigrant communities will inevitably color people’s decisions. These policies and actions include the rescission of the Deferred Action for Childhood Arrivals program; the ban on travel from several majority-Muslim countries; the suspension on refugee admissions to the United
25 See U.S. Census Bureau, 2020 Census Operational Plan (Sept. 2017), https:// www2.census.gov/programs-surveys/decennial/2020/program-management/planning-docs/2020oper-plan3.pdf.
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States; the termination of special protections from removal for migrants from nations experiencing war and natural disasters; increased detention of undocumented migrants; efforts to suspend or terminate federal funding to localities that elect to limit their participation in federal immigration enforcement efforts; and efforts to build a physical wall along the Mexico-U.S. border, among other actions.
74. The Administration’s anti-immigrant rhetoric has been prevalent in the years leading up to the 2020 Census. For example, Donald Trump during his campaign for President and since becoming President has made clear his animus toward immigrants, documented and otherwise. Leaders in his Administration, including at the Department of Justice and Department of Homeland Security, also have made anti-immigrant statements.
75. Candidate Trump repeatedly denigrated Mexican immigrants in particular, even comparing them to rapists in his presidential bid announcement: “When Mexico sends its people, they’re not sending their best. They’re not sending you. They’re not sending you. They’re sending people that have lots of problems and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume are good people.”26
76. During the first Republican presidential debate, candidate Trump doubled down on his disparaging comments about Mexican immigrants, claiming that “[t]he Mexican government is much smarter, much sharper, much more cunning. And they send the bad ones over because they don’t want to pay for them. They don’t want to take care of them.”27
26 The Washington Post Staff, Full text: Donald Trump announces a presidential bid (June 16, 2015), https://www.washingtonpost.com/news/post-politics/wp/2015/06/16/full-text-donaldtrump-announces-a-presidential-bid/?utm_term=.d9c21741c206. 27 Suzanne Gamboa, Trump Claims in Debate Mexico ‘Sends the Bad Ones’ to U.S., NBC News (Aug. 6, 2015), https://www.nbcnews.com/news/latino/trump-claims-debate-mexico-sends-badones-u-sn405661.
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77. During another presidential debate in October 2016, candidate Trump
once again broadly assaulted immigrant families and communities with his views
on immigration by declaring, “We have some bad hombres here and we’re going to get them out.”28
78. ICE’s Acting Director, Thomas Homan, testified in June 2017 that “If
you’re in this country illegally, and you committed a crime by entering this country, you should be uncomfortable. You should look over your shoulder.”29
79. United States Attorney General Jeff Sessions stated on Fox News in
April 2017 that “[e]verybody in the country illegally is subject to being deported, so
people come here and they stay here a few years and somehow they think they are
not subject to being deported—well, they are. The policy is that if people are here
unlawfully, they’re subject to being deported. Our priority is clear . . . we can’t promise people who are here unlawfully that they’re not going to be deported.”30
80. The Bureau itself expressed concern that anti-immigrant rhetoric by
elected and appointed officials and the media would affect Census participation.
Indeed, the Bureau’s own 2017 study revealed “an unprecedented ground swell in
confidentiality and data sharing concerns, particularly among immigrants or those
who live with immigrants,” and that these concerns “may present a barrier to participation in the 2020 Census.”31 Ex. 3 at 15 [Meyers Report]. The studies’
28 Elizabeth Gurdus, Trump: ‘We have some bad hombres and we’re going to get them out,’ CNBC (Oct. 19, 2016), https://www.cnbc.com/2016/10/19/trump-we-have-some-bad-hombresand-were-going-to-get-them-out.html. 29 Maria Sacchetti, ICE chief tells lawmakers agency needs much more money for immigration arrests, The Washington Post (June 13, 2017), https://www.washingtonpost.com/local/socialissues/ice-chief-tells-lawmakers-agency-needs-much-more-money-for-immigrationarrests/2017/06/13/86651e86-5054-11e7-b064828ba60fbb98_story.html?utm_term=.bdab82b48326. 30 Adam Shaw, Sessions defends immigration policies after reported ‘DREAMer’ deportation, FOX News (Apr. 19, 2017), http://www.foxnews.com/politics/2017/04/19/sessions-defendsimmigration-policies-after-reported-dreamer-deportation.html. 31 See Mikelyn Meyers, Center for Survey Management, U.S. Census Bureau, Presentation on Respondent Confidentiality Concerns and Possible Effects on Response Rates and Data Quality
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respondents “express[ed] new concerns about topics like the ‘Muslim ban,’
discomfort ‘registering’ other household members by reporting their demographic
characteristics, the dissolution of the ‘DACA’ (Deferred Action for Childhood
Arrival) program, repeated references to Immigration and Customs Enforcement (ICE), etc.”32 Ex. 4 at 1 [Memorandum on the Meyers Report].
81. The Bureau itself has reported heightened privacy concerns from
members of the public when they are asked to respond to census questionnaires, as
reflected in the Meyers Report:
 Respondent Fears o “The possibility that the Census could give my information to internal security and immigration could come and arrest me for not having documents terrifies me.” (Spanish interview) o “Particularly with our current political climate, the Latino community will not sign up because they will think that Census will pass their information on and people can come looking for them.” (Spanish interview) o English-speaker mentioned the “Muslim ban.”
 Respondent Focus Group Findings o Legal residency status, fear of deportation, concern about how the data are used, and which agencies can see it (DHS? ICE?) o Receiving advice not to open the door; [Respondent]s should request warrant be slipped under the door.  “They say, ‘Never open the door!’”  “This alert has been spread everywhere now.” (Korean Focus Group) . . . .
for the 2020 Census, presented at National Advisory Committee on Racial, Ethnic, and Other Populations Fall Meeting (Nov. 2, 2017), https://www2.census.gov/cac/nac/meetings/201711/Meyers-NAC-Confidentiality-Presentation.pdf (“Meyers Report”). 32 See Memorandum from the Center for Survey Measurement on Respondent Confidentiality Concerns to Associate Directorate for Research and Methodology, U.S. Census Bureau (Sept. 20, 2017), https://www2.census.gov/cac/nac/meetings/2017-11/Memo-Regarding-RespondentConfidentiality-Concerns.pdf (“Memorandum on the Meyers Report”).
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o “In light of the current political situation, the immigrants, especially the Arabs and Mexicans, would be so scared when they see a government interviewer at their doorsteps.” (Arabic Focus Group)
o “The immigrant is not going to trust the Census employee when they are continuously hearing a contradicting message from the media every day threatening to deport immigrants.” (Arabic Focus Group)
 Behavior Changes Are Recent o “The politics have changed everything. Recently.” (Interviewer) o “This may just be a sign of the times, but in the recent several months before anything begins, I’m being asked times over, does it make a difference if I’m not a citizen?” (Interviewer) o “Three years ago was so much easier to get respondents compared to now because of the government changes . . . and trust factors . . . . Three years ago I didn’t have problems with the immigration questions.” (Interviewer)33
82. These types of concerns are not new to the Bureau. Since at least
1980, the Bureau has recognized that, because of immigrants’ fear of how
information disclosed on the Census may be used against them, “any effort to
ascertain citizenship will inevitably jeopardize the overall accuracy of the
population count.” Fed’n for Am. Immigration Reform, 486 F. Supp. at 568.
83. The Bureau’s own experts believe that adding the citizenship question
may threaten the accuracy and confidentiality of enumeration, make the census more expensive to conduct, and jeopardize the Bureau’s nonpartisan reputation.34
84. The current Administration’s proposed funding cuts will adversely
affect the decennial census and will thus exacerbate the citizenship question’s effect
on its accuracy. Former Bureau officials, members of Congress, and Government
Accountability Office staff all have expressed concern about a funding shortage for
the 2020 Census. The Office of Management and Budget has ordered agencies to
33 See Meyers Report at 8–9, 13. 34 Wines, supra, Census Bureau’s Own Expert Panel Rebukes Decision to Add Citizenship Question.
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submit plans for personnel cuts and other restructuring moves, and the Department of Commerce has not publicly disclosed them or explained how they will affect its plans to hire up to half-a-million temporary workers to conduct the decennial census. The hiring of these workers is particularly important to ensuring an accurate count, as they will be the ones following up with households that do not respond to the initial mailing.
G. Harm to San Jose, Its Residents and BAJI 85. The undercount of Californians in the 2020 Census likely to result from the citizenship question will cause significant harm to cities such as San Jose and their residents. The undercount that will result from the citizenship question will also cause California, and its municipalities, to lose federal funding, including resources from the federal assistance programs that distribute funds on the basis of decennial census-derived statistics. 86. Citywide, 12.6% of San Jose’s population lives below the poverty line. 87. Many residents of San Jose depend upon the receipt of federally funded benefits for their livelihoods. For example, 23.7% of San Jose residents receive Social Security income; 6.6% receive Supplemental Security Income; 2.8% receive cash public assistance income; and 7.6% receive supplemental nutrition assistance benefits. 88. This undercount will also harm BAJI, which advocates for minority and immigrant communities, due to the drain on its resources caused by the need to educate its constituents regarding the citizenship questions and other programming to minimize its effects. Further, the diminished federal funding and political representation of minority and immigrant communities as a result of the citizenship questions directly frustrates BAJI’s goal of fostering racial, economic, and social equality for Black immigrants and other historically underrepresented communities. 89. Unless enjoined now, the Bureau will proceed with finalizing the 2020 Census paper questionnaires, which are scheduled to be printed in May of 2019.
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Only through an injunction can San Jose’s right to have its residents fully and accurately counted be preserved. An injunction is further necessary to protect the interests of BAJI.
FIRST CAUSE OF ACTION (Violation of Constitution’s “Actual Enumeration” Mandate;
U.S. Const., art. I, § 2, cl. 3) 90. Plaintiffs reallege and incorporate herein by reference each and every allegation set forth in paragraphs 1 through 89 above as though set forth herein. 91. The Constitution requires the “actual Enumeration” of all people in each state every ten years for the sole purpose of apportioning representatives among the states. U.S. Const., art. I, § 2, cl. 3, and amend. XIV, § 2. The clause does not distinguish between citizens and non-citizens, nor does it distinguish between the legal statuses of non-citizens. 92. By including the citizenship question on the 2020 Census, Defendants are in violation of the “actual Enumeration” clause of the Constitution. Because the question will diminish the response rates of non-citizens and their citizen relatives, San Jose, which has a large immigrant population, and BAJI, which advocates for Black immigrant communities, will be disproportionately affected by the census undercount. Inclusion of the question thus directly interferes with Defendants’ fulfillment of their constitutional responsibility, as delegated by Congress, to conduct an “actual Enumeration” of the U.S. population. 93. This violation harms San Jose and its residents. San Jose will be awarded fewer seats in the U.S. House of Representatives than its population dictates. Further, it will receive millions of dollars less in federal funding for public health, education, transportation and neighborhood improvements on an annual basis. 94. This violation harms BAJI due to the diversion of its resources to educate its constituents regarding the census citizenship questions and other
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programming to minimize its effects and the frustration of its mission to advance racial, economic, and social equality
95. Defendants’ violation has caused and will continue to cause ongoing, irreparable harm to San Jose, its residents, and BAJI.
96. An actual controversy exists between Plaintiffs and Defendants regarding whether Defendants’ inclusion of a citizenship question on the 2020 Census violates the “actual Enumeration” clause of the U.S. Constitution.
SECOND CAUSE OF ACTION (Violation of the Constitution’s Apportionment Clause;
U.S. Const. amend. XIV, § 2) 97. Plaintiffs reallege and incorporate herein by reference each and every allegation set forth in paragraphs 1 through 96 above as though set forth herein. 98. The Constitution requires that representatives be “apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.” U.S. Const., amend. XIV, § 2. 99. By including the citizenship question on the 2020 Census, Defendants will undercount “the whole number of persons in each state” because non-citizens and their citizen relatives will be discouraged from responding. 100. Because the results of the 2020 Census will be inaccurate if the citizenship question is included, apportionment of congressional seats based upon those results will not be based on “the whole number of persons in each state,” violating the apportionment clause of the Fourteenth Amendment. 101. This violation will harm San Jose and its residents. San Jose will be awarded fewer seats in the U.S. House of Representatives than its population dictates. Further, it will receive millions of dollars less in federal funding for public health, education, transportation and neighborhood improvements on an annual basis.
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102. This violation harms BAJI and the minority and immigrant communities that it serves. These underserved communities will be deprived of federally funded resources and benefits, and the municipalities in which they reside will lose congressional seats, resulting in their political dilution.
103. Defendants’ violation has caused and will continue to cause ongoing, irreparable harm to San Jose, its residents, and BAJI.
104. An actual controversy exists between Plaintiffs and Defendants regarding whether Defendants’ inclusion of a citizenship question on the 2020 Census violates the Apportionment Clause of the U.S. Constitution.
THIRD CAUSE OF ACTION (Violation of APA’s Requirement that Administrative Action Be in Accordance with Law, Not Contrary to Constitutional Right, and Not
Beyond Statutory Authority; 50 U.S.C. § 706(2)) 105. Plaintiffs reallege and incorporate herein by reference each and every allegation set forth in paragraphs 1 through 104 above as though set forth herein. 106. A court must “hold unlawful and set aside” any agency action that is “not in accordance with law,” “contrary to constitutional right,” or that is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2). 107. Adding the citizenship question to the 2020 Census would be contrary to the constitutional requirement that the Census conduct “actual Enumeration” of all people in each state every ten years for the sole purpose of apportioning representatives among the states. U.S. Const., art. I, § 2, cl. 3. 108. Adding the citizenship question to the 2020 Census would also be contrary to the constitutional requirement that congressional seats be “apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.” U.S. Const., amend. XIV, § 2.
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109. This violation will harm San Jose and its residents. San Jose will be awarded fewer seats in the U.S. House of Representatives than its population dictates. Further, it will receive millions of dollars less in federal funding for public health, education, transportation and neighborhood improvements on an annual basis.
110. This violation harms BAJI due to the diversion of its resources to educate its constituents regarding the census citizenship questions and other programming to minimize its effects and the frustration of its mission to advance racial, economic, and social equality Defendants’ violation has caused and will continue to cause ongoing, irreparable harm to San Jose, its residents, and BAJI.
111. An actual controversy exists between Plaintiffs and Defendants regarding whether Defendants’ inclusion of a citizenship question on the 2020 Census violates Section 706(2) of the APA.
FOURTH CAUSE OF ACTION (Violation of APA’s Arbitrary and Capricious Standard;
5 U.S.C. § 706(2)(A)) 112. Plaintiffs reallege and incorporate herein by reference each and every allegation set forth in paragraphs 1 through 111 above as though set forth herein. 113. The APA requires courts to “hold unlawful and set aside” agency action that is, among other things, “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” “contrary to constitutional right, power, privilege or immunity,” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706. 114. Defendants’ inclusion of the citizenship question on the 2020 Census is all of the above. Because the question will diminish the response rates of noncitizens and their citizen relatives, San Jose, which has a large immigrant population, and BAJI, which directly advocates for Black immigrant communities, will be disproportionately affected by the census undercount. Inclusion of the
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question thus directly interferes with Defendants’ fulfillment of their constitutional responsibility, as delegated by Congress, to conduct an “actual Enumeration” of the U.S. population, as well as Secretary Ross’s statutory duty to “take a decennial census of population” under 13 U.S.C. § 141(a). A citizenship question, moreover, would not serve the purpose articulated by the U.S. Department of Commerce, because an undercount of non-citizens and their citizen relatives will decrease the accuracy of census data available to prove voter dilution under Section 2 of the Voting Rights Act. Further, Defendants failed to follow their own internal agency policies and guidelines, including under the Information Quality Act, in reaching their decision to add the citizenship question. And finally, Defendants made the decision to include the citizenship question very late in the census planning process and months after the statutory deadline for reporting proposed subjects had passed. This last-minute decision was done hurriedly, at the apparent request of the Department of Justice, on a pre-textual basis, and without the benefit of careful analysis and testing the Bureau usually engages in during the years leading up to the census. This not only constitutes a failure to abide by a statutory mandate, but also reflects the hasty and ill-advised nature of the decision to include the citizenship question on the 2020 Census.
115. Defendants’ decision to add a citizenship question to the 2020 Census thus violates the APA’s prohibition against “arbitrary and capricious” agency action. The stated purpose of adding the question—that it is necessary to enforcing Section 2 of the Voting Rights Act—is not borne out by the facts and is a pretext for other unstated and ulterior purposes.
116. Defendants’ violation has caused and will continue to cause ongoing, irreparable harm to San Jose, its residents, and BAJI.
117. An actual controversy exists between Plaintiffs and Defendants regarding whether Defendants’ inclusion of a citizenship question on the 2020 Census violates Section 706(2)(A) of the APA.
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PRAYER FOR RELIEF WHEREFORE, the City of San Jose and BAJI, by and through their attorneys, respectfully requests that this Court: 1. Issue a declaratory judgment, under 28 U.S.C. §§ 2201 and 2202, that including the citizenship question on the 2020 Census violates Article I, Section 2, Clause 3 of the United States Constitution and the APA; 2. Issue a preliminary injunction prohibiting all Defendants and all those acting in concert with them from including a citizenship question on the 2020 Census and from taking any irreversible steps to include a citizenship question on the 2020 Census; 3. Issue a permanent injunction prohibiting all Defendants and all those acting in concert with them from including the citizenship question on the 2020 Census; 4. Award Plaintiffs costs, expenses, and reasonable attorney fees; and
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5. Award such other relief as the Court deems just and proper.

Dated: April 17, 2018

Respectfully submitted, MANATT, PHELPS & PHILLIPS, LLP
By: s/ John F. Libby John F. Libby John W. McGuinness Emil Petrossian 11355 West Olympic Boulevard Los Angeles, California 90064 Telephone: (310) 312-4000 Facsimile: (310) 312-4224 LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW Kristen Clarke Jon M. Greenbaum Ezra D. Rosenberg Dorian L. Spence 1401 New York Avenue NW, Suite 400 Washington, DC 20005 Telephone: (202) 662-8600 Facsimile: (202) 783-0857 PUBLIC COUNSEL Mark Rosenbaum 610 South Ardmore Avenue Los Angeles, California 90005 Telephone: (213) 385-2977 Facsimile: (213) 385-9089 CITY OF SAN JOSE Richard Doyle, City Attorney Nora Frimann, Assistant City Attorney Office of the City Attorney 200 East Santa Clara Street, 16th Floor San José, California 95113-1905 Telephone Number: (408) 535-1900 Facsimile Number: (408) 998-3131 E-Mail: cao.main@sanjoseca.gov
Attorneys for Plaintiffs CITY OF SAN JOSE and BLACK ALLIANCE FOR JUST IMMIGRATION

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FILER’S ATTESTATION Pursuant to Civil Local Rule 5-1(i)(3), regarding signatures, Ana G.

Guardado hereby attests that concurrence in the filing of this document has been

obtained from all the signatories above.

Dated: April 17, 2018

s/ Ana G. Guardado Ana G. Guardado

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 Case 3:18-cv-02279-RS Document 33 Filed 05/22/18 Page 1 of 1

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
RELATED CASE ORDER

A Motion fo r Administrative Relief to Consider Whether Cases Shou ld be Related or a Sua Sponte Judicial Referral for Purpose of Determining Relationship (Civ il L.R. 3-12) has been filed. The time fo r filing an opposition or statement of support has passed. As the judge assigned to case
18-cv-0 1865-RS State of California v. Ross
I find that the more recently filed case(s) that I have initialed below are related to the case assigned to me, and such case(s) shall be reassigned to me. Any cases listed below that are not related to the case assigned to me are referred to the judge assigned to the next-earliest fil ed case for a related case determination.

Case 18-cv-02279-HRL
ORDER
The parties are instructed that all future filings in any reassigned case are to bear the initials of the newl y assigned judge immediately after the case number. Any case management conference in any reassigned case will be rescheduled by the Court. The parties shall adjust the dates for the conference, disclosures and report required by FRCivP 16 and 26 accordingly. Unless otherwise ordered, any dates for hearing noticed motions are vacated and must be renoticed by the moving party before the newly assigned judge; any dead lines set by the ADR Local Rules remain in effect; and any deadlines established in a case management order continue to ~overn, except dates fo r appearance in court, which willi be ri esch! edule/ d byL the newl? y assigned Judge.

g Dated: )"- )_;2 --- (

By: Richard Seeborg United States District Judge

 
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United States District Court Northern District of California

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9
STATE OF CALIFORNIA, et al., 10
Plaintiffs, 11
v. 12
WILBUR ROSS, et al., 13
Defendants. 14
----------------------------------------------------15 CITY OF SAN JOSE, et al.,

16

Plaintiffs,

Case Nos. 18-cv-01865-RS; 18-cv-2279-RS
ORDER DENYING MOTIONS TO DISMISS

17

v.

18 WILBUR ROSS, et al.,

19

Defendants.

20

21

22

23 I. INTRODUCTION
24 This action arises out of a decision by the U.S. Census Bureau, a division of the U.S.
25 Department of Commerce, to include a question regarding citizenship status on the 2020 decennial
26 census questionnaire. The census surveys the number of persons in each household and in so
27 doing, collects certain demographic information about those persons. While questions relating to
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1 citizenship have historically been part of the census process, not since 1950 has the decennial

2 census asked whether each respondent is a citizen of the United States. Plaintiffs in these two

3 related cases contend the decision to deviate from modern practice violates both the Constitution

4 and the Administrative Procedure Act (“APA”). Plaintiffs in 18-cv-1865 are the State of

5 California, by and through Attorney General Xavier Becerra, County of Los Angeles, City of Los

6 Angeles, City of Fremont, City of Long Beach, City of Oakland, City of Stockton, and Los 7 Angeles Unified School District.1 Plaintiffs in 18-cv-2279 are City of San Jose and Black Alliance

8 for Just Immigration (“BAJI”). Plaintiffs in each of the complaints in general contend that the

9 inclusion of a citizenship question operates by design to depress an accurate count of certain

10 immigrant communities residing in the United States. Defendants in both matters are Wilbur Ross,

11 in his official capacity as Secretary of the U.S. Department of Commerce; the U.S. Department of

12 Commerce; Ron Jarmin, in his official capacity as Acting Director of the U.S. Census Bureau; and

13 the U.S. Census Bureau.

14

Defendants move to dismiss all claims asserted against them. For the reasons set forth

15 below, the motions to dismiss are denied in their entirety. First, plaintiffs have standing to

16 challenge the decision by Secretary Ross to add a citizenship question to the 2020 Census. Second,

17 that decision is not insulated from judicial review as defendants insist. Third, assuming, as is

18 required at the pleading stage, that all facts asserted in the operative complaints are true, plaintiffs 19 have stated claims for relief under both the Enumeration Clause of the Constitution and the APA.2

20

21 1 The Los Angeles Unified School District (“LAUSD”) filed a motion to intervene in this case on the side of plaintiffs. As LAUSD states valid grounds for intervention, and defendants do not
22 oppose, the motion is granted. All arguments asserted by defendants against plaintiffs in this action are taken to be asserted equally against LAUSD.

23 2 Plaintiffs in 18-cv-2279 set out two separately articulated constitutional claims, one for violation 24 of the Constitution’s “‘Actual Enumeration’ Mandate; U.S. Const., art. I § 2, cl. 3,” and one for
violation of the “Apportionment Clause; U.S. Const., amend. XIV § 2.” At oral argument, San 25 Jose/BAJI plaintiffs took the position that the latter claim could survive independently of the
former. While plaintiffs here allege a violation of the constitutional mandate to count the 26 population, in part because of its projected effect on apportionment, they do not allege a defect in
the method of apportioning representatives itself. C.f. Dep’t of Commerce v. Montana, 503 U.S. 27 442 (1992) (challenging the “method of equal proportions” that translates census data into a
determination of how many representatives each state is accorded). Therefore, the constitutional

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ORDER DENYING MOTIONS TO DISMISS

CASE NO. 18-cv-01865-RS

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1

2

II. BACKGROUND3

3

The U.S. Constitution provides for an “actual Enumeration” of the population once every

4 decade to count “the whole number of persons” in each state. U.S. Const. Art. I, § 2, cl. 3, and

5 Amend. XIV, § 2. All residents of a state are to be counted, regardless of citizenship status. Fed’n

6 for Am. Immigration Reform (FAIR) v. Klutznick, 486 F. Supp. 564, 567 (D.D.C. 1980). The

7 purpose of the “actual Enumeration” is to guide the apportionment of congressional seats among

8 the states based on their respective populations. Art. 1, § 2, cl.3. The federal government also

9 relies on census data to determine how to distribute billions of dollars in funding each year,

10 including funds for Medicaid, Medicare Part B, the Supplemental Nutrition Assistance Program

11 (“SNAP”), the State Children’s Health Insurance Program (“S-CHIP”), and the Highway Planning

12 and Construction Program. State of California’s First Amended Complaint (“FAC”) ¶ 7; City of

13 San Jose’s Complaint (“San Jose Compl.”) ¶¶ 33, 85.

14

Under the Census Act, 13 U.S.C. §§ 1 et seq. (the “Act”), Congress delegated its

15 constitutional duty to conduct the decennial census to the Secretary of Commerce and the U.S.

16 Census Bureau, a federal statistical agency within the Department of Commerce. 13 U.S.C. §§ 2,

17 4, 141(a). Under section 141(f), the Commerce Secretary must submit to Congress a final list of

18 subjects to be covered in the census questionnaire at least three years before the census date, and

19 must submit a final list of specific questions two years before the census date. 13 U.S.C. §§

20 141(f)(1)-(2). Once these reports are submitted, the Secretary has limited discretion to alter their

21 content and may do so only if “new circumstances exist which necessitate that the subjects, types

22

23 claims rise and fall together and defendants’ motion to dismiss is deemed to be directed at both
24 claims.
25 3 Unless otherwise noted, this synopsis is based on facts drawn from the operative complaints, which must be taken as true for purposes of a 12(b)(6) motion. Because defendants’12(b)(1)
26 motion is framed as a facial rather than factual attack upon plaintiffs’ claim to federal subject matter jurisdiction, the Court “must accept as true the allegations of the complaint.” U.S. ex. rel.
27 Lujan v. Hughes Aircraft Co., 243 F.3d 1181, 1189 (9th Cir. 2001).

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ORDER DENYING MOTIONS TO DISMISS

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1 of information, or questions contained in reports so submitted be modified.” 13 U.S.C. § 141(f)(3).

2

Several federal laws govern the specific manner in which the census is to be developed and

3 conducted. For example, the Paperwork Reduction Act of 1995 (“PRA”) directs the Office of

4 Management and Budget (“OMB”) to issue “[g]overnment-wide policies, principles, standards,

5 and guidelines” governing “statistical collection procedures and methods” which the Bureau is

6 required to follow. See id. §§ 3504(e)(3)(A), 3506(e)(4); 5 C.F.R. § 1320.18(c). The Information

7 Quality Act and OMB-issued Statistical Policy Directives set standards for survey content

8 development that guide the Bureau’s activities. San Jose Compl. ¶¶ 39, 40. The Bureau itself has

9 issued Statistical Quality Standards applicable to “all information products released by the Bureau

10 and the activities that generate those products”—including the decennial census. San Jose Compl.

11 ¶ 39. These standards call for rigorous pretesting requirements to identify problems and refine data

12 collection instruments before implementation. Id.

13

The development process of each decennial census takes several years, a period during

14 which the Bureau conducts tests regarding the content, specific language, order, and layout of the

15 census questionnaire to improve the accuracy of the enumeration. San Jose Compl. ¶ 39. None of

16 the tests conducted in preparation for the 2020 Census included a citizenship question or gathered

17 data on the impact of a citizenship question. Id. ¶¶ 43, 47-48; FAC ¶ 38. The March 2017 report

18 submitted by defendants to Congress set out a list of planned subjects for the 2020 Census but did

19 not include citizenship among the topics. San Jose Compl. ¶¶ 5, 37.

20

On December 12, 2017, DOJ submitted a letter to the Census Bureau “formally

21 request[ing] that the Census Bureau reinstate on the 2020 Census questionnaire a question

22 regarding citizenship.” Letter from Arthur Gary, General Counsel, DOJ, to Ron Jarmin (Dec. 12,

23 2017) (“DOJ Letter”); see Administrative Record (“A.R.”) at 663. DOJ stated the data was

24 “critical” to the agency’s ability to enforce the requirements of Section 2 of the Voting Rights Act

25 (“VRA”), now codified at 52 U.S.C. § 10301. A.R. at 663. According to the DOJ, census-block-

26 level data collected through the decennial census questionnaire would be more useful to the

27 enforcement of the VRA than the census-block-group level data currently available through the

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ORDER DENYING MOTIONS TO DISMISS

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1 American Community Survey (“ACS”), which is sent yearly to a sample of the population—about

2 one in 38 households. Id. at 663-64.

3

On March 26, 2018, Secretary Ross issued a memorandum announcing the inclusion of a

4 citizenship question on the 2020 Census questionnaire. Memorandum to Karen Dunn Kelley,

5 Under Secretary for Economic Affairs, from the Sec’y of Commerce on Reinstatement of a

6 Citizenship Question on the 2020 Decennial Census Questionnaire at 1 (Mar. 26, 2018), FAC ¶ 4;

7 A.R. at 1313. The Secretary’s stated justification was that the information was needed to provide

8 DOJ with census-block-level data to assist in enforcing the VRA. A.R. at 1313. Based on a

9 purported review of the Bureau’s history of collecting citizenship information on the decennial

10 census, the Secretary concluded that “the citizenship question has been well tested.” Id. at 1314.

11

At the Secretary’s request, the Census Bureau presented three alternatives for providing the

12 data requested by DOJ: Option A called for continuing the status quo and providing DOJ with

13 ACS citizenship data at the census-block-group level instead of the block level requested by DOJ;

14 Option B provided for the placement of the ACS citizenship question on the decennial census; and

15 Option C involved obtaining the requested information from existing federal administrative-record

16 data. A.R. 1314-16. In his decision memo, the Secretary elected not to pursue Option A, as it

17 would not provide data at the level requested by DOJ, even using sophisticated modeling methods.

18 Id. at 1314-15. Instead, the Secretary chose to implement a fourth option, as a combination of

19 Options B and C. Id. at 1316. Under this Option D, a citizenship question would be reinstated on

20 the decennial census, while the Census Bureau enhanced its administrative record data sets,

21 protocols, and statistical models to maximize its ability to match the decennial census responses to

22 administrative records. Id. at 1316. This methodology would, the Secretary opined, provide DOJ

23 with the most complete and accurate data. Id.

24

In arriving at his decision, Secretary Ross had before him the views of numerous

25 stakeholders, many of whom expressed concern that addition of a citizenship question would

26 negatively impact response rates and result in an undercount of the population. A.R. at 1313-14. In

27 particular, the Chief Scientist and Associate Director of Research and Methodology at the Bureau,

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1 Dr. John M. Abowd, conducted analysis showing that addition of a citizenship question would

2 have a negative effect on the accuracy and quality of the 2020 Census and would negatively

3 impact response rates from non-citizen households. A.R. at 1277, 1279-82. The Secretary

4 acknowledged that a “significantly lower response rate by non-citizens could reduce the accuracy

5 of the decennial census and increase costs for non-response follow up operations,” but concluded

6 that “neither the Census Bureau nor the concerned stakeholders could document that the response

7 rate would in fact decline materially” as a consequence of his reinstating a citizenship question.

8 A.R. at 1315. He noted that “while there is widespread belief among many parties that adding a

9 citizenship question could reduce response rates, the Census Bureau’s analysis did not provide

10 definitive, empirical support for that belief.” Id. at 1316.

11

Secretary Ross further offered the unadorned assumption that reduced census participation

12 would be primarily limited to those individuals who may decline to participate regardless of

13 whether the census includes a citizenship question. A.R. at 1317. Finally, the Secretary explained

14 that the Census Bureau intends to take steps to conduct respondent and stakeholder-group outreach

15 in an effort to mitigate the impact of these issues on the 2020 Census. Id.

16

In response to the Secretary’s March 2018 announcement, plaintiffs in these cases filed

17 suit to enjoin the implementation of a citizenship question on the 2020 Census questionnaire.

18 Plaintiffs assert that that the inclusion of a citizenship question will result in an undercount of the

19 U.S. population in the State of California and its counties and cities with sizeable minority and

20 non-citizen communities. FAC ¶ 40. As a result of the undercount, California will lose seats in the

21 House of Representatives for the first time in its history and will suffer the loss of federal funding

22 allocated on the basis of census-derived statistics. Id. ¶ 41. These consequences will negatively

23 impact the communities represented by plaintiffs, including those individuals BAJI serves.

24

III. LEGAL STANDARD

25

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the court's

26 subject matter jurisdiction over the asserted claims. It is the plaintiff’s burden to prove jurisdiction

27 at the time the action is commenced. Tosco Corp. v. Communities for Better Environment, 236

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1 F.3d 495, 499 (9th Cir. 2001); Morongo Band of Mission Indians v. Cal. State Bd. of

2 Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988). “A Rule 12(b)(1) jurisdictional attack may be

3 facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a

4 facial attack, the challenger asserts that the allegations contained in the complaint are insufficient

5 on their face to invoke federal jurisdiction.” Id. Accordingly, when considering this type of

6 challenge, the Court is required to “accept as true the allegations of the complaint.” U.S. ex rel.

7 Lujan v. Hughes Aircraft Co., 243 F.3d 1181, 1189 (9th Cir. 2001).

8

A complaint must contain “a short and plain statement of the claim showing that the

9 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While “detailed factual allegations are not

10 required,” a complaint must have sufficient factual allegations to “state a claim to relief that is

11 plausible on its face.” Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009) (citing Bell Atlantic v. Twombly,

12 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the pleaded factual content allows

13 the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

14 Id. This standard asks for “more than a sheer possibility that a defendant acted unlawfully.” Id.

15 The determination is a context-specific task requiring the court “to draw on its judicial experience

16 and common sense.” Id. at 679.

17

A motion to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) tests the

18 legal sufficiency of the claims alleged in the complaint. See Parks Sch. of Bus., Inc. v. Symington,

19 51 F.3d 1480, 1484 (9th Cir. 1995). Dismissal under Rule 12(b)(6) may be based on either the

20 “lack of a cognizable legal theory” or on “the absence of sufficient facts alleged under a

21 cognizable legal theory.” UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006,

22 1014 (9th Cir. 2013). When evaluating such a motion, the Court must “accept all factual

23 allegations in the complaint as true and construe the pleadings in the light most favorable to the

24 nonmoving party.” Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). Although a court is

25 generally not to rely on evidence outside the pleadings in deciding a motion under Rule 12(b)(6),

26 it “may, however, consider certain materials—documents attached to the complaint, documents

27 incorporated by reference in the complaint, or matters of judicial notice—without converting the

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1 motion to dismiss into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903,

2 907-08 (9th Cir. 2003). Moreover, “when faced with a motion to dismiss in the APA context, a

3 court may consider the administrative record and public documents without converting the motion

4 into a motion for summary judgment,” Bates v. Donley, 935 F. Supp. 2d 14, 17 (D.D.C. 2013)

5 (citing Rempfer v. Sharfstein, 583 F.3d 860, 865 (D.C. Cir. 2009)). When a plaintiff has failed to

6 state a claim upon which relief can be granted, leave to amend should be granted unless “the

7 complaint could not be saved by any amendment.” Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th

8 Cir. 2002) (citation and internal quotation marks omitted).

9

IV. DISCUSSION

10

Defendants make four arguments in support of their motion to dismiss, two that are

11 generally applicable to all claims advanced by the plaintiffs, and two that are specific to certain of

12 those claims. First, defendants argue plaintiffs lack standing to challenge the Secretary’s decision

13 to add a citizenship question to the decennial census. Plaintiffs’ claimed injuries are loss of

14 representation in Congress and in the Electoral College, and decreased federal funding due to

15 reduced response rates of their residents. Defendants take the position these injuries are too

16 speculative to confer Article III standing, and are not fairly traceable to the Secretary’s decision.

17

Second, defendants contend plaintiffs’ challenge is unreviewable under the political

18 question doctrine. According to defendants, the Constitution textually commits the “[m]anner” of

19 conducting the census to Congress, and contains no judicially discoverable or manageable

20 standards for determining which demographic questions may be included on the census form.

21 Resolution of this case would, according to defendants, require a court order dictating the form

22 and content of the decennial census, a policy determination defendants believe is ill-suited to

23 judicial resolution and is expressly committed to the political branches.

24

With respect to plaintiffs’ APA claim specifically, defendants contend the Secretary’s

25 actions are not subject to judicial review because the decision at issue is committed to agency

26 discretion by law. Congress has authorized the Secretary to conduct the decennial census “in such

27 form and content as he may determine,” 13 U.S.C. § 141(a). This broad delegation of authority,

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1 defendants argue, leaves a court with no meaningful standard to apply when evaluating the

2 Secretary’s choice to include certain demographic questions on the decennial census form.

3

Finally, defendants assert that plaintiffs’ Enumeration Clause claim fails because the

4 Secretary’s decision is consistent with longstanding historical census practice of asking about

5 citizenship and other demographic information. Success on plaintiff’s theory, defendants argue,

6 would call into question the constitutionality of asking any type of demographic question that

7 lacks a direct relationship to the counting of the population and may cause some individuals not to

8 respond.

9

A. Standing

10

To satisfy Article III’s standing requirements, “a plaintiff must show (1) it has suffered an

11 ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or

12 hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is

13 likely, as opposed to merely speculative, that the injury will be redressed by a favorable

14 decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81,

15 120 S. Ct. 693, 145 L.Ed.2d 610 (2000). As the party invoking federal jurisdiction, the plaintiff

16 bears the burden of establishing all three requirements are met. Lujan v. Defs. of Wildlife, 504 U.S.

17 555, 561 (1992). “At the pleading stage, general factual allegations of injury resulting from the

18 defendant’s conduct may suffice.” Id. Defendants contend plaintiffs in this action fail to meet their

19 burden to allege concrete injury-in-fact. They further argue plaintiffs’ alleged injuries cannot be

20 fairly traced to government action and are instead attributable to the independent actions of third

21 parties. Neither of these challenges is persuasive.

22

1. Injury-in-Fact

23

In order to demonstrate an “injury in fact,” a plaintiff must allege it “has sustained or is

24 immediately in danger of sustaining a direct injury” as a result of the challenged action. Spokeo,

25 Inc. v. Robins, 136 S. Ct. 1540, 1552 (2015) (citations omitted). The injury or threat of injury must

26 be “concrete and particularized,” Defs. of Wildlife, 504 U.S. at 560, and not “merely ‘conjectural’

27 or ‘hypothetical’ or otherwise speculative.” Summers v. Earth Island Inst., 555 U.S. 488, 505

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1 (2009) (quoting Defs. of Wildlife, 504 U.S at 560). An alleged future injury must be “certainly

2 impending,” and not a mere possibility. See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409

3 (2013) (emphasis in original).

4

Defendants argue plaintiffs’ claims of injury are premised on a speculative assertion that

5 the addition of the citizenship question will ultimately cause a net decrease in the response rates,

6 and a corresponding undercount of the population. As defendants see it, the conjectural nature of

7 plaintiffs’ theory is evidenced by the lack of “definitive, empirical” evidence regarding the effect

8 of adding a citizenship question to the decennial census. See A.R. at 1316; see also id. at 1315-18.

9 Secretary Ross also noted that households have historically failed to respond to census surveys for

10 a variety of reasons and found no evidence that there were any individuals who would otherwise

11 participate in the census but for the inclusion of a citizenship question. A.R. at 1317.

12

At the pleading stage, plaintiffs are not required to prove facts supporting each element of

13 the standing inquiry. Here, plaintiffs plausibly allege that the introduction of a citizenship question

14 to the census will depress response rates, particularly among immigrants and relatives of

15 immigrants who may feel trepidation identifying themselves or others as non-citizens. Several

16 factual allegations support this claim. As the FAC notes, since at least 1980, the Census Bureau

17 has recognized that “any effort to ascertain citizenship will inevitably jeopardize the overall

18 accuracy of the population count.” FAC ¶ 37 (citing Fed. For Am. Immigration Reform v.

19 Klutznick, 486 F. Supp. 564, 568 (D.D.C. 1980)). In an amicus brief to the Supreme Court in

20 2016, four former Census Bureau Directors appointed by presidents of both parties expressed their

21 belief that “a one-by-one citizenship inquiry would invariably lead to a lower response rate to the

22 Census in general,” including a “reduced rate of response overall and an increase in inaccurate

23 response.” FAC ¶ 5; Brief of Former Directors of the U.S. Census Bureau as Amici Curiae in

24 Support of Appellees at 23-26, Evenwel v. Abbott, 136 S. Ct. 1120 (2016), 2015 WL 5675832. In

25 2017, the Bureau itself conducted a study that concluded there is “an unprecedented groundswell”

26 of concern that could “present a barrier to participation in the 2020 Census” and have a

27 “disproportionate impact on hard-to-count populations,” particularly immigrants and non-English

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1 speakers. FAC ¶ 37.

2

Most recently, defendant Jarmin acknowledged in a congressional hearing that the

3 inclusion of a citizenship question would cause more than a “minimal” decline in 2020 Census

4 participation, and that the decline “would be largely felt in various sub-groups, in immigrant

5 populations [and] Hispanic populations.” See Jarmin Testimony starting at 1:39, response at

6 1:44:10; 1:50:35, response at 1:50:48. He also reported that the “best approach” recommended by

7 the Census Bureau staff to obtain the information sought by DOJ “would be to use administrative

8 records rather than adding a citizenship question.” Id. starting at 1:19:10, response at 1:21:30.

9 Taken together, these allegations satisfy plaintiffs’ burden to plead facts demonstrating injury that

10 is likely to occur and not merely a conjectural possibility.

11

Defendants’ other arguments also go to issues of proof. They contend plaintiffs cannot

12 establish the probability of an undercount occurring due to the “extensive procedures” deployed

13 by the Census Bureau to address non-responses and to obtain accurate data for those households 14 that decline to respond. Motion to dismiss (“Mot.”)4 at 14. Thus, defendants insist, plaintiffs

15 cannot show use of the citizenship question alone will reduce self-response rates, or that an

16 undercount will be higher in California. Once again, there is no requirement, at this juncture, that

17 plaintiffs produce “definitive, empirical” evidence regarding the effect of adding a citizenship 18 question to the census in order to survive a motion to dismiss.5 Plaintiffs have plausibly alleged

19 that California’s population includes large numbers of immigrants and non-citizens relative to

20 other states and that logically, an appreciable undercount of those particular subgroups will have

21 an outsized impact. See FAC ¶ 40; San Jose Compl. ¶¶ 85, 92.

22

23 4 For the sake of clarity, references to defendants’ motion to dismiss are to the motion filed in 1824 cv-1865 unless otherwise noted.
25 5 While plaintiffs’ general allegations that the citizenship question will cause an undercount are sufficient at the pleading stage, State of California plaintiffs also aver specifically that “the Bureau
26 will be unable to take sufficient measures to avoid or mitigate the resulting undercount of noncitizens and their citizen relatives if the citizenship question is included in the 2020 Census.” FAC
27 ¶ 38.

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1

Defendants next target the alleged connection between the projected undercount of the

2 population and the risk plaintiffs will lose representation or funding as a consequence. Plaintiffs

3 allege that an increased undercount will impact the number of representatives California has in the

4 House of Representatives and the Electoral College and will decrease their share of federal funds

5 under a variety of federal programs. FAC ¶¶ 40-47. Because apportionment is a complex process

6 that involves ranking states based on their population to determine priority for seats, see 2 U.S.C.

7 § 2a(a); https://wwww.census.gov/population/apportionment/about/computing.html, defendants

8 insist that the impact on California’s representation is merely hypothetical. While it may be, as

9 defendants assert, that undercounts in other states will offset the effect on California in the final

10 apportionment calculation, that is a determination on the merits. Defendants cannot defeat

11 plaintiffs’ as yet to be proven assertions about California’s projected loss of congressional

12 representation with equally unproven assertions regarding a lack of impact. The cases defendants

13 offer to the contrary were decided on motions for summary judgment, where the parties’ offers of

14 proof were given due consideration.

15

With respect to funding related concerns, defendants acknowledge that the court in

16 National Law Center on Homelessness and Poverty v. Kantor found, for the purposes of ruling on

17 summary judgment, that allegations of loss of funding are sufficient to survive motions to dismiss.

18 See 91 F.3d 178, 185 (D.C. Cir. 1996) (citing cases). In the particular context of the census, courts

19 have consistently held that individual plaintiffs have standing where they allege a loss of federal

20 funding to their states and localities resulting from a census undercount. See Carey v. Klutznick,

21 637 F.2d 834, 838 (2d Cir. 1980) (holding that “citizens who challenge a census undercount on the

22 basis, inter alia, that improper enumeration will result in loss of funds to their city have established

23 . . . an injury in fact traceable to the Census Bureau”); Glavin v. Clinton, 19 F. Supp. 2d 543, 550

24 (E.D. Va. 1998) (holding that plaintiffs had standing because they established the proposed census

25 methodology would “directly result in a decrease of federal funding to the states and counties in

26 which Plaintiffs reside”); City of Philadelphia v. Klutznick, 503 F. Supp. 663, 672 (E.D. Pa. 1980)

27 (concluding that plaintiffs had standing even if they did not personally receive federal aid

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1 allocated to the City of Philadelphia because “all enjoy the benefits yielded when the City is

2 enabled to improve quality of life through the receipt of this money”). Defendants, however,

3 maintain these cases are distinguishable because they involved post-census challenges to counting

4 methodologies, and none of them involved a challenge to the mere inclusion of a question on the

5 census form. As with apportionment of representatives, defendants point out that allocation of

6 funds under the programs cited by plaintiffs is “not generally proportional to population, but is a

7 function of multiple factors including, often, the populations of other states.” Mot. at 16 (citing 42

8 U.S.C. § 5305(d)(1) (public transportation funding); 20 U.S.C. § 6337 (education funding); 42

9 U.S.C. § 1301(a)(8)(A)(Medicaid funding)).

10

Defendants’ attempts to distinguish the numerous cases finding standing where plaintiffs

11 have alleged loss of funding are unpersuasive. First, the distinction between post-census

12 challenges to calculation methodologies and pre-census challenges to the inclusion of a census

13 question is of no consequence with respect to the nature of the injury alleged. All three of the

14 above referenced census challenges were, as here, filed before the relevant decennial census was 15 completed and before any alleged loss of funding could have taken place.6 Second, as explained

16 above with respect to defendants’ challenge to plaintiffs’ allegations regarding apportionment,

17 disputes about whether California will in fact lose federal funding are not proper for determination

18 on a motion to dismiss.

19

Finally, defendants argue that even if plaintiffs can show Article III injury, their allegations

20 are insufficient to bring them within the zone of interests protected by the Constitution’s

21 Enumeration Clause, which “has no relation to, and was intended to, ensure that federal grant

22 monies flow equally to all individuals.” Mot. at 17. On the contrary, plaintiffs have alleged loss of

23 funding and inadequate representation flowing from the Secretary’s alleged failure to conduct an

24
25 6 Carey challenged an undercount that was projected disproportionately to affect New York State and New York City, Glavin challenged the planned use of statistical sampling in the next
26 decennial census, and City of Philadelphia challenged the Bureau’s refusal to make adjustments to the census count on the grounds that it was likely to result in a loss of funding to the city and its
27 residents.

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1 “actual Enumeration” as required by the Constitution. These allegations easily survive the zone-

2 of-interests test.

3

2. Causation

4

In the event plaintiffs state an injury that is sufficiently concrete, defendants contend they

5 cannot show the alleged injury is “fairly traceable” to the actions of defendants. Defs. of Wildlife,

6 504 U.S. at 560. Courts generally decline to find standing where the asserted injury results from

7 the independent actions of third parties rather than the challenged conduct of defendants. See

8 Clapper, 568 U.S. at 414 (noting the Supreme Court’s “usual reluctance to endorse standing

9 theories that rest on speculation about the decisions of independent actors.”); Simon v. E. Ky.

10 Welfare Rights Org., 426 U.S. 26, 41-42 (1976).

11

Specifically, defendants argue plaintiffs’ allegations of harm rely upon intervening acts of

12 third parties—individuals who violate their clear legal duty to participate in the decennial census.

13 See 13 U.S.C. § 221. Plaintiffs allege that individuals in their communities who would otherwise

14 comply with their legal obligations to respond to the census will be deterred from participating

15 because of the addition of the citizenship question. This reluctance, defendants insist, is not fairly

16 traceable to any action by the Secretary, given that it is impossible to determine what percentage

17 of this population would be reluctant to respond to the census questionnaire regardless of what

18 questions appear on it.

19

Once again, defendants articulate a standard far higher than what is required under Article

20 III. Courts recognize that “[c]ausation may be found even if there are multiple links in the chain

21 connecting the defendant’s unlawful conduct to the plaintiff’s injury, and there’s no requirement

22 that the defendant’s conduct comprise the last link in the chain.” Mendina v. Garcia, 768 F.3d

23 1009, 1012 (9th Cir. 2014), citing Bennett v. Spear, 520 U.S. 154, 168-69 (1997)). The key

24 question, as plaintiffs rightly point out, is whether the “government’s unlawful conduct is at least a

25 substantial factor motivating the third parties’ actions.” Id. at 1013 (internal citations and

26 quotations omitted). “So long as plaintiff can make that showing without relying on speculation or

27 guesswork about the third parties’ motivations, she has adequately alleged Article III causation.”

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1 Id. (internal citations and quotations omitted); see also In re Zappos.com, 888 F.3d 1020, 1026 n.6

2 & 1028-30 (9th Cir. 2018) (injury related to data breach was fairly traceable to retailer, even

3 though third party hackers stole data).

4

Plaintiffs meet that burden here by alleging the inclusion of a citizenship question will

5 discourage their constituents and members of their communities from participating in the census,

6 due to anxieties about the federal government’s perceived negative treatment of minority and

7 immigrant populations. San Jose Compl. ¶¶ 6, 10, 71-73, 80-83. They also point to evidence from

8 the Bureau itself attesting to the projected negative impact of asking a citizenship question on

9 census response rates. That non-respondents would violate their legal duty to participate in the

10 census and may be influenced by other factors in refusing to participate does not diminish the

11 strength of plaintiffs’ allegation that the citizenship question will be a “substantial” factor

12 affecting non-response rates. Neither is causation defeated by defendants’ assertions that refusing

13 to respond to the census is “irrational.” See Block v. Meese, 793 F.2d 1303, 1309 (D.C. Cir. 1986)

14 (holding “irrational” reactions of public leading to depressed sales did not defeat the causation

15 element of standing in suit challenging the Department of Justice’s classification of three films as

16 “political propaganda.”). Accordingly, plaintiffs in this action have standing to assert their claims.

17

3. BAJI’s Organizational Standing

18

An organization may show an “injury in fact” sufficient to confer direct standing by

19 alleging: “(1) frustration of its organizational mission; and (2) diversion of its resources” to

20 combat the challenged actions by defendant. See Smith v. Pac. Properties & Dev. Corp., 358 F.3d

21 1097, 1105 (9th Cir. 2004). An organization cannot “manufacture” an injury by sustaining

22 litigation costs or by choosing to use resources to fix problems that otherwise would not have

23 affected it. See La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d

24 1083, 1088 (9th Cir. 2010). It is sufficient, however, for the organization to allege defendant’s

25 actions caused it to expend additional resources and “but for” those actions it would have spent

26 those resources to accomplish other aspects of its organizational mission. See Nat’l Council of La

27 Raza v. Cegavske, 800 F.3d 1032, 1040-41 (9th Cir. 2015).

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1

Here, BAJI has alleged an injury sufficient to confer organizational standing. San Jose

2 Compl. ¶ 23. It describes its goal as fostering racial, economic, and social equality for Black

3 immigrants and other historically underrepresented communities. Because the inclusion of a

4 citizenship question on the 2020 Census questionnaire, they allege, will disproportionately depress

5 the response rates of immigrant communities, BAJI contends these communities stand to lose

6 political representation and access to federal funding. In response, BAJI has diverted the

7 organization’s limited resources to address and counteract the anticipated effects of the Secretary’s

8 decision to reinstate the census question. These efforts include providing “dialogues,

9 presentations, workshops, publications, technical assistance, and trainings to build alliances

10 between African American and immigrant communities.” Id. Taken together, these allegations are

11 sufficient to demonstrate that BAJI’s organizational mission has been frustrated due to defendants’

12 actions, and the resources diverted to dealing with that frustration go above and beyond litigation.

13 See Fair Housing of Marin v. Combs, 285 F.3d 899 (9th Cir. 2002) (finding the resources an

14 organization had diverted to investigate defendant’s alleged discriminatory actions established

15 standing). Therefore, at the pleading stage, BAJI has sustained its burden to show standing.

16

B. Political Question

17

The political question doctrine is “primarily a function of the separation of powers.” Baker

18 v. Carr, 369 U.S. 186, 210 (1962). The doctrine “excludes from judicial review those

19 controversies which revolve around policy choices and value determinations constitutionally

20 committed for resolution to the halls of Congress or the confines of the Executive Branch.” Japan

21 Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986). The presence of a nonjusticiable

22 political question is analyzed on a case-by-case inquiry involving the following six factors:

23

[1] a textually demonstrable constitutional commitment of the issue to a coordinate

24

political department; or [2] a lack of judicially discoverable and manageable

25

standards for resolving it; or [3] the impossibility of deciding without an initial

policy determination of a kind clearly for nonjudicial discretion; or [4] the

26

impossibility of a court’s undertaking independent resolution without expressing

lack of the respect due coordinate branches of government; or [5] an unusual need

27

for unquestioning adherence to a political question already made; or [6] the

28

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potentiality of embarrassment from multifarious pronouncements by various

1

departments on one question.

2

3 Baker, 369 U.S. at 217; see Republic of the Marshall Islands v. United States, 865 F.3d 1187,

4 1200 (9th Cir. 2017). Although the first two factors are considered the most important, see

5 Zivotosky v. Clinton, 566 U.S. 189, 195 (2012) (examining only the first two factors); Vieth v.

6 Jubelirer, 541 U.S. 267, 278 (2004), a court may find a political question if even one factor is

7 satisfied, see Republic of Marshall Islands, 865 F.3d at 1200. Defendants argue that at least three

8 factors are relevant here.

9

1. Textually Committed to Congress

10

The Constitution provides that Representatives “shall be apportioned among the several

11 States . . . according to their respective numbers,” which requires “counting the whole number of

12 persons in each State.” U.S. Const. amend. XIV, § 2. To calculate the “number of persons in each

13 State,” id., the Enumeration Clause requires an “actual Enumeration” every 10 years “in such

14 Manner as [Congress] shall by Law direct.” Id. art. I, § 2, cl. 3. Defendants take the position that

15 the command to conduct an “actual enumeration” presents a judicially cognizable question that

16 courts have routinely answered, while the latter command regarding the “manner” of conducting

17 the census presents a nonjusticiable political question reserved for Congress and by delegation, to

18 the Secretary.

19

Because the phrase “in such a Manner” modifies the phrase ‘[t]he actual Enumeration shall

20 be made,” defendants argue the text of the Constitution makes clear that Congress has full and

21 exclusive control over the manner in which the decennial census is conducted. The census

22 questionnaire, they reason, is synonymous with the “form” of the census, and it is the “method” by

23 which an “actual Enumeration” is conducted. In defendants’ telling, the decision to include a

24 citizenship question concerns only the “manner” in which the Secretary performs the information-

25 gathering function of the census. It does not, in their view, implicate questions of “whom to count,

26 how to count them, or where to count them.” Mot. at 18. Thus, defendants read plaintiffs’

27 challenge as directed at the “way of performing or executing” the census, a determination

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1 Congress has reserved to itself.

2

These arguments fail for at least four reasons. First, while there is no question the language

3 of the Constitution accords great deference to Congress, and by delegation to the Secretary, with

4 respect to the methodology by which the decennial census is conducted, defendants offer no cases

5 supporting a sharp dividing line between reviewable actions implicating the “Enumeration” prong

6 and unreviewable actions implicating only the “Manner” prong. Courts have routinely held that

7 the Enumeration Clause does not textually commit exclusive, non-reviewable control over the

8 census to Congress. See Young v. Klutznick, 497 F. Supp. 1318, 1326 (E.D. Mich. 1980), rev’d on

9 other grounds, 652 F.2d 617 (6th Cir. 1981) (finding the Enumeration Clause “does not say that

10 Congress and Congress alone has the responsibility to decide the meaning of, and implement,

11 Article I, Section 2, Clause 3.”); State of Texas v. Mosbacher, 783 F. Supp. 308, 312 (S.D. Tex.

12 1992) (finding Congress’s exclusive power to determine the manner of the census did not preclude

13 judicial review of its actions); City of Willacoochee v. Baldridge, 556 F. Supp. 551, 557 (S.D. Ga.

14 1983) (“[T]he Court finds no support for the argument that the Framers intended that all aspects of

15 conducting the census be exclusively within the province of Congress and exempt from judicial

16 review.”).

17

Second, the distinction defendants attempt to draw—between a “method” of conducting

18 the census and considerations of “whom to count, how to count them, or where to count them”—

19 appears to be one of semantics rather than substance. The latter considerations, which defendants

20 concede are subject to judicial review, could reasonably be interpreted as describing different

21 “ways” of “performing or executing” the census. In other words, both statistical adjustment to the

22 census count and creation of the census questionnaire concern the methodology of conducting the

23 “actual Enumeration,” albeit at different points in the process.

24

Third, those cases that ultimately denied challenges to the decennial census did so by

25 evaluating challenged procedures as part of the “manner” in which the census is conducted. See

26 Utah v. Evans, 536 U.S. 452, 474 (2002) (holding that the use of “hot-deck” imputation to infer

27 information about certain addresses was permissible under the Enumeration Clause under the “in

28

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1 such Manner” language); Wisconsin, 517 U.S. 1, 17 (upholding the Secretary’s decision not to

2 adjust the population count with a post-enumeration survey as permissible under Congress’ broad

3 delegation of authority to “conduct the census ‘in such Manner as they shall by Law direct’”);

4 Franklin v. Massachusetts, 505 U.S. 788, 803-807 (1992) (upholding the Secretary’s manner of

5 counting federal employees serving abroad).

6

Finally, plaintiffs here articulate a challenge to “how” the Secretary intends to count the

7 population—by using a questionnaire that will allegedly exacerbate non-response rates in certain

8 communities. Even under defendants’ strained reading of the Enumeration Clause, plaintiffs’

9 claims are not insulated from judicial review by the text of the Constitution.

10

2. Judicially Manageable Standards

11

Defendants characterize the decision to add a citizenship question as a policy decision

12 regarding census procedures. In this case, defendants assert, the Secretary balanced the need for

13 citizenship information against the cost and effectiveness of efforts to mitigate non-responses, the

14 possibility of lower response rates, the cost of increased non-response follow-up, and the

15 completeness and cost of administrative records. Defendants contend there are no judicially

16 manageable standards for determining how to weigh these factors because they do not implicate

17 the constitutional command to count rather than estimate the population. Such a determination

18 would involve cost/benefit analysis and value judgments that are beyond the province of the

19 court’s judgment.

20

Defendants again distinguish prior census-related cases decided by the Supreme Court on

21 grounds that all concerned calculation methodologies, rather than pre-count information-gathering

22 functions or content determinations. See, e.g. Utah, 536 U.S. at 452 (“hot-deck imputation”—a

23 non-sampling process which infers characteristics of individuals based upon the characteristics of

24 neighbors, resulting in inclusion of individuals who otherwise would be excluded—did not violate

25 the Enumeration Clause); Dep’t of Commerce v. U.S. House of Representatives, 525 U.S. 316,

26 317-18 (1999) (holding that statistical sampling violates the Census Act, 13 U.S.C. § 195, and

27 declining to reach the Enumeration Clause claim); Wisconsin, 517 U.S. at 1 (holding that

28

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1 Secretary did not violate Enumeration Clause by failing to correct a census undercount with data

2 from a post-enumeration survey); Franklin v. Massachusetts, 505 U.S. at 788 (1992) (confirming

3 that the method used to count federal employees serving overseas did not violate Enumeration

4 Clause).

5

Yet nothing in these cases indicates that guidance regarding judicial evaluation of

6 calculation methodologies may not also govern challenges to other census-related decisions. The

7 Supreme Court has identified several guiding principles that are applicable here. Although the

8 Court has declined to “decide . . . the precise methodological limits foreseen by the Census

9 Clause,” it has found a “strong constitutional interest in accuracy.” Utah, 536 U.S. at 478. The

10 Court reviews decisions pertaining to the administration of the decennial census with an eye to

11 whether the challenged decision bears “a reasonable relationship to the accomplishment of an

12 actual enumeration of the population, keeping in mind the constitutional purpose of the census.”

13 Wisconsin, 517 U.S. at 20. As plaintiffs point out, a “reasonable relationship” standard imposes

14 deferential yet concrete limitations on the Secretary’s exercise of discretion. For example, one

15 would expect the Secretary could be precluded from printing all census questionnaires in Greek or

16 in illegible font. Here, plaintiffs allege the Secretary exceeded the constitutional bounds of his

17 discretion when he decided to reinstate a citizenship question, a decision they assert will

18 affirmatively undermine the actual enumeration and its purpose of congressional apportionment.

19 FAC ¶¶ 49-50; San Jose Compl. ¶ 26. In evaluating this claim, this Court may examine whether

20 the Secretary’s policy decisions exceeded the bounds of his constitutional discretion without

21 passing judgment on the wisdom or correctness of his analysis.

22

In addition to these constitutional parameters, reference may be made to a variety of

23 judicially manageable standards from a number of statutes, regulations, and policies, including the

24 Paperwork Reduction Act, OMG’s Statistical Policy Directives, and the Bureau’s own Statistical

25 Quality Standards. Conformance with established procedures may be evaluated without requiring

26 a second-guess of the Secretary’s balancing of various policy options. Therefore, for the reasons

27 articulated above, the political question doctrine does not preclude review of plaintiffs’ claims.

28

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1

C. Administrative Procedure Act

2

The APA authorizes courts to set aside final agency actions, findings, and conclusions that

3 are “arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law.” 5 U.S.C.

4 § 706. Although there is a “strong presumption that Congress intends judicial review of

5 administrative action,” Bowen v. Michigan Acad. of Family Physicians, 476 U.S. 667, 670, (1986),

6 the statute exempts from scrutiny certain categories of decisions that “courts traditionally have

7 been regarded as ‘committed to agency discretion.’” Lincoln v. Vigil, 508 U.S. 182, 191 (1993)

8 (quoting 5 U.S.C. § 701(a)(2)). Agency action is committed to agency discretion by law where

9 “‘statutes are drawn in such broad terms that in a given case there is no law to apply,’” Citizens to

10 Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971) (internal citation omitted). In

11 these cases, judicial review is precluded because there is no “meaningful standard against which to

12 judge the agency’s exercise of discretion.” Webster v. Doe, 486 U.S. 592, 600 (1988); see also

13 Ctr. For Policy Analysis on Trade & Health v. Office of the U.S. Trade Rep., 540 F.3d 940, 945

14 (9th Cir. 2008) (applying § 701(a)(2) to bar judicial review where relevant statutes “are devoid of

15 standards suggesting what Congress intended”).

16

Application of section 701(a)(2) “requires careful examination of the statute on which the

17 claim of agency illegality is based,” Webster, 486 U.S. at 600. A court also considers whether the

18 matter is one traditionally viewed as committed to agency discretion, Interstate Commerce

19 Comm’n v. Bhd. Of Locomotive Eng’rs (“BLE”), 482 U.S. 270, 283 (1987), or whether the

20 challenged action manifests a “general unsuitability” for judicial review because it involves a

21 “complicated balancing of a number of factors” concerning the allocation of agency resources, or

22 matters uniquely committed to another branch of government, Heckler v. Chaney, 470 U.S. 821,

23 831-32 (1985). Defendants maintain that the decision to reinstate a citizenship question is akin to

24 any decision regarding the conduct of the census generally, a discretionary determination that is

25 insulated from judicial review.

26

Under the Census Act, Congress’s delegation of authority to the Secretary is a broad one:

27 “The Secretary shall . . . take a decennial census of the population . . . in such form and content as

28

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1 he may determine,” and “[i]n connection with any such census, the Secretary is authorized to

2 obtain such other census information as necessary.” 13 U.S.C. § 141(a). Defendants compare the

3 statute’s “may determine” language to the discretionary language at issue in Webster, 486 U.S. at

4 600, which allowed the CIA Director to terminate an employee whenever he “shall deem such

5 termination necessary or advisable in the interests of the United States.” Therefore, defendants

6 argue, just as the CIA Director’s decision to terminate an employee as “necessary or advisable” is

7 immune from judicial review, so too is the Secretary’s decision to collect information through the

8 decennial census “as necessary” and “in such form and content as he may determine.” 13 U.S.C. §

9 141(a).

10

In the specific context of the census, the Supreme Court has confirmed that Congress’s

11 authority over the census is accorded substantial deference. Wisconsin v. New York, 517 U.S. at

12 19:

The text of the Constitution vests Congress with virtually unlimited discretion in

13

conducting the decennial “actual Enumeration,” see Art. I, § 2, cl. 3, and

14

notwithstanding the plethora of lawsuits that inevitably accompany each decennial

census, there is no basis for thinking that Congress’ discretion is more limited than

15

the text of the Constitution provides. . . . Through the Census Act, Congress has

delegated its broad authority over the census to the Secretary.

16

17 Some courts have concluded that the absence of “guidelines for an accurate decennial census”

18 from the Constitution, the Census Act, and the APA itself creates “the inference . . . that these

19 enactments do not create justiciable rights.” Tucker v. Dep’t of Commerce, 958 F.2d 1414, 1417-

20 18 (7th Cir. 1992); see also Senate of the State of Cal. v. Mosbacher, 968 F.2d 974, 977-79 (9th

21 Cir. 1992) (finding “no law to apply” under the Constitution and Census Act). Tucker and

22 Mosbacher, however, were decided before the Supreme Court’s decisions in Utah and Wisconsin,

23 without the benefit of the guidance provided in those decisions. Moreover, Mosbacher dealt with a

24 plaintiff’s FOIA-type request to compel the Bureau to release census count data that had not been

25 made public, an issue that has little relationship to the facts of this case.

26

As described in the preceding section of this Order, the Constitution provides a standard

27 for determining whether the Secretary’s decision violates the APA. In searching for a meaningful

28

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1 standard of judicial review, courts may look beyond the statute authorizing agency action and

2 consider other statutes and “regulations, established agency policies, or judicial decisions.”

3 Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 868 (9th Cir. 2003); accord Pinnacle Armor, 648

4 F.3d at 719. Under Wisconsin and Utah, this Court may evaluate whether the Secretary’s actions

5 evidence “a reasonable relationship to the accomplishment of an actual enumeration of the

6 population, keeping in mind the constitutional purpose of the census.” Wisconsin, 517 U.S. at 19-

7 20. The Secretary’s decision must also be consistent with the “strong constitutional interest in

8 accuracy.” Utah, 536 U.S. at 478; see also Pub. L. No. 105-119, § 209(a)(6) (“it is essential that

9 the decennial enumeration of the population be as accurate as possible, consistent with the

10 Constitution and laws of the United States.”).

11

Plaintiffs allege that citizenship data from a decennial census will not assist enforcement of

12 the Voting Rights Act, and will instead cause injury to those populations the Act was designed to

13 protect. Accordingly, they accuse defendants of sacrificing census accuracy for an illegitimate and

14 unsupported purpose. FAC §§ 14-15. While perfect census accuracy is clearly not required, a

15 decision that both undermines the accuracy of the enumeration process and does so without

16 reasonable justification may be adjudged “arbitrary, capricious, an abuse of discretion or otherwise

17 not in accordance with law.” 5 U.S.C. § 706(2)(a).

18

A substantial body of federal regulations and Census Bureau policies also provide

19 manageable standards against which the Secretary’s actions can be measured. In particular, the

20 Bureau’s own Statistical Quality Standards guide the process—from planning to collecting to

21 analyzing and reporting—of producing Bureau information products. See Bureau’s Statistical

22 Quality Standards at i. The document instructs, “All Census Bureau employees . . . must comply

23 with these standards.” Id. at ii (emphasis added). The standards expressly identify circumstances

24 under which pretesting “must” occur, such as when, for example, “review by cognitive experts

25 reveals that adding pretested questions to an existing instrument may cause potential context

26 effects” or “an existing data collection instrument has substantive modifications (e.g., existing

27 questions are revised or new questions added).” Id. at 8. These internal agency standards provide

28

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1 “law to apply” in evaluating the Secretary’s exercise of his discretion. An “irrational departure

2 from agency policy,” plaintiffs argue, can constitute grounds for arbitrary and capricious review,

3 regardless of whether the relevant standards are legally binding on the agency. See I.N.S. v. Yueh-

4 Shaio Yang, 519 U.S. 26, 32 (1996); Salazar v. King, 822 F.3d 61, 76-77 (2d Cir. 2016).

5

Even confined to the text of 13 U.S.C. § 141(a), the view defendants adopt, it is well

6 established that “the mere fact that a statute contains discretionary language does not make agency

7 action unreviewable.” Pinnacle Armor, 648 F.3d at 719 (“Just because a statute calls on the

8 agency to exercise its ‘judgment’ in making its determination does not necessarily make an

9 agency’s action unreviewable.”); ASSE Int’l, Inc. v. Kerry, 803 F.3d 1059, 1068 (9th Cir. 2015)

10 (“Even where statutory language grants an agency ‘unfettered discretion,’ its decision may

11 nonetheless be reviewed if regulations or agency practice provide a ‘meaningful standard by

12 which this court may review its exercise of discretion.’”) (quoting Spencer Enters., Inc. v. United

13 States, 345 F.3d 683, 688 (9th Cir. 2003)). Moreover, the weight of authority considering section

14 141(a) strongly indicates the Secretary’s authority and discretion is not so limitless as to foreclose

15 APA review. See Dist. of Columbia v. U.S. Dep’t of Commerce, 789 F. Supp. 1179, 1188 n.16

16 (1992) (“[A]lmost every court that has considered the issue has held that 13 U.S.C. § 141 does not

17 preclude judicial review.”); City of New York v. U.S. Dep’t of Commerce, 713 F. Supp. 48, 53

18 (E.D.N.Y. 1989) (“The overwhelming majority of cases considering the issue[] have concluded

19 that § 701(a)(2) of the APA is inapplicable to the census statute.”); see, e.g., Carey v. Klutznick,

20 637 F.2d at 838 (challenge to the “manner” in which the Census Bureau assembled address

21 registers for the census was not “committed to agency discretion by law” under section 701(a)(2)):

22 City of Philadelphia, 503 F. Supp. at 675; see also Franklin, 505 U.S. at 818-819 (Stevens, J.,

23 concurring in part).

24

Most recently, in a thoughtful and meticulously researched analysis of the issue, District

25 Judge Furman noted that the Census Act, read as a whole, “imposes any number of mandatory

26 duties upon the Secretary,” including obligations to prepare the census questionnaire, take a

27 decennial census, to complete the census within nine months, and to furnish a report of the census

28

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1 to Congress prior to the census date. See State v. U.S. Dep’t of Commerce, No. 18-cv-2921, No.

2 18-cv-5025, 2018 WL 3581350, at *16 (S.D.N.Y. July 26, 2018). In short, Judge Furman

3 concluded, there was “strong evidence that Congress did not intend to preclude judicial review of

4 the Secretary’s actions.” Id. The single use of the word “may” does not operate to overcome the

5 presumption of review created by the statute’s otherwise mandatory, non-discretionary language.

6

Defendants articulate no persuasive reasons to depart from the considerable precedent

7 identified above. For these reasons, plaintiffs are not precluded from seeking judicial review of

8 their claims under the APA.

9

D. Enumeration Clause

10

Finally, even if this Court finds plaintiffs’ claims justiciable, defendants argue plaintiffs’

11 claim under the Enumeration Clause should be dismissed. The Constitution’s only command with

12 respect to the “actual Enumeration,” defendants contend, is that the Secretary must conduct a

13 person-by-person headcount. As long as the Secretary is counting rather than estimating the

14 population, the requirements of the Enumeration Clause, they insist, are satisfied.

15

According to defendants, plaintiffs have not, and cannot, allege that the Secretary has

16 failed to establish procedures for counting every resident of the United States. The Census Bureau

17 has comprehensive procedures in place for non-response follow-up and will attempt to contact

18 every person in the country. 2020 Census Operational Plan, at 88-92, 112-21. These procedures

19 include multiple mailings, digital methods and automation, and in-person visits by a census

20 enumerator. In light of these intensive efforts, defendants argue, the mere possibility of an

21 undercount is insufficient to establish a violation of the Enumeration Clause. See Utah, 536 U.S. at

22 504 (Thomas, J., concurring in part and dissenting in part) (canvassing the history of census

23 undercounts, including the first Census in 1790); Wisconsin, 517 U.S. at 6 (“Although each [of the

24 20 past censuses] was designed with the goal of accomplishing an ‘actual Enumeration’ of the

25 population, no census is recognized as having been wholly successful in achieving that goal.”);

26 Gaffney v. Cummings, 412 U.S. 735, 745 (1973) (census data “are inherently less than absolutely

27 accurate”); Senate of the State of Cal., 968 F.2d at 979 (describing the 1990 Census as “one of the

28

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1 best ever taken in this country” despite counting “approximately 98 percent of the population”);

2 City of Los Angeles v. Evans, No. 01-cv-1671, 2001 WL 34125617, at *2 (C.D. Cal. Apr. 25,

3 2001) (“Like all of its predecessors, Census 2000 produced less than perfect results.”).

4

Plaintiffs’ theory, defendants contend, would call into question a whole host of

5 demographic questions on the current and prior census forms—related to sex, origin, race, and

6 relationship status—as some people may prefer not to answer those questions either. It would also

7 challenge the constitutionality of asking demographic questions on the long-form questionnaire

8 sent to a small subset of the population, which has been shown to elicit a lower response rate. See

9 Census Topic Report No. 11, Response Rates and Behavior Analysis, at 9,

10 https://www.census.gov/pred/www/rpts/TR11.pdf (concluding that mail-back response rate for

11 2010 long form was 9.6% lower than short form). Courts recognize that demographic information-

12 gathering serves as “a linchpin of the federal statistical system by collecting data on the

13 characteristics of individuals, households, and housing units throughout the country.” Dep’t of

14 Commerce, 525 U.S. at 341 (quoting Nat’l Research Council, Counting People in the Information

15 Age 1 (D. Steffey & N. Bradburn eds. 1994). For that reason, defendants argue, the Supreme

16 Court has never invalidated the Secretary’s population count on Enumeration Clause grounds. See

17 Utah, 536 U.S. at 474; Dep’t of Commerce, 525 U.S. at 344; Wisconsin, 517 U.S. at 1; Franklin,

18 505 U.S. at 788.

19

The history of the census reflects that demographic questions have long been a part of the

20 enumeration process since its inception. See Dep’t of Commerce, 2018 WL 3581350, at *20-22.

21 The first census in 1790 asked about age, race, and sex. Census Act of 1790, § 1, 1 Stat. 101

22 (1790). Every census since then has collected demographic information beyond the number and

23 location of inhabitants. Although no census since 1950 has asked ever respondent to report

24 citizenship status, questions relating to citizenship have appeared on a long-form questionnaire

25 sent to portions of the population from 1960 through 2000. Thus, it is clear that the mere asking of

26 a question about citizenship on the census form is consistent with the historical conduct of the

27 census. See Wisconsin, 517 U.S. at 21 (explaining that historical practice is a critical factor in

28

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1 examining an alleged violation of the Enumeration Clause). As discussed at oral argument in this

2 matter, counsel for defendants could not point to any case where the constitutionality of a

3 citizenship question was the subject of litigation. That said, the fact remains not only has Congress

4 itself directed the inclusion of demographic questions on the census (before such determinations

5 were delegated to an agency), but the handful of lower courts to have entertained challenges to the

6 Secretary’s power to collect demographic information via the census questionnaire have rejected

7 them. See Dep’t of Commerce, 2018 WL 3581350, at *21-22 (collecting cases).

8

Yet plaintiffs do not frame their objection to the citizenship question as an inherent

9 disagreement with citizenship as a proper subject for the census, nor is theirs a challenge to the

10 general proposition that the Secretary is empowered by Congress to collect demographic

11 information through the decennial census. The long history of demographic questions appearing

12 on the census questionnaire, including questions regarding place of birth and immigration status,

13 confirms that the specific act of including a citizenship question on the census is not, by and of

14 itself, beyond the Secretary’s authority under the Enumeration Clause. At oral argument, counsel

15 for plaintiffs also made clear that they were not taking the position that every single past census

16 that included a citizenship question was constitutionally defective. In other words, plaintiffs do not

17 ask for a determination on whether the Constitution categorically prohibits the Secretary from

18 asking census respondents about their citizenship, only whether he is precluded under these

19 particular facts.

20

Plaintiffs agree that the standard for evaluating a challenge under the Enumeration Clause

21 is an objective one—that is, the Secretary’s actions either satisfy the constitutional mandate or

22 they do not. Because the Constitution instructs the Secretary to count the population, plaintiffs

23 urge the proper focus of the Court’s inquiry is on the effect of asking a question about citizenship

24 in the context of this decennial census taking. For that reason, plaintiffs argue, a question that

25 chills participation in the census process today might not necessarily have been chilling in 1950.

26 Indeed, the operative complaints are replete with examples of government policies, actions, and

27 rhetoric within the last year that would tend to make non-citizens and their family members

28

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1 potentially afraid to divulge their household’s citizenship status to a federal agency. These

2 government activities logically shape the impact of asking a citizenship question on the 2020

3 Census questionnaire specifically. Thus, it is plaintiffs’ position that the decision to ask a

4 citizenship question in 2020 is reviewable under the Enumeration Clause without implicating the

5 constitutionality of other demographic questions in general, or past iterations of the citizenship

6 question in particular.

7

Although a close question, plaintiffs’ claim under the Enumeration Clause may proceed

8 past the pleading stage. First, defendants’ assertion, in their papers and at oral argument, that the

9 Secretary’s exercise of discretion to add questions to the census questionnaire is never subject to

10 constitutional scrutiny, is overbroad. Second, although the census has included questions relating

11 to citizenship and other demographic characteristics throughout its history, the constitutionality of

12 asking about citizenship in particular has never been actually tested. Third, the Supreme Court has

13 identified a “strong constitutional interest in accuracy,” Utah, 536 U.S. at 478, and entertained

14 challenges to the mechanics of conducting the decennial census—i.e. statistical adjustment to the

15 initial census count, allocation of persons counted, procedures to tabulate survey responses, etc.—

16 under that standard. The conclusion drawn from the aforementioned points is that while the

17 content of the census questionnaire, including the specific questions that appear on it, is nearly

18 always committed to the Secretary’s sound discretion, there may be a rare question that is so

19 uniquely impactful on the process of counting itself, that it becomes akin to a mechanics-of-

20 counting-type challenge, which is plainly reviewable under the Enumeration Clause.

21

Here, plaintiffs aver that the citizenship question on the 2020 Census questionnaire is one

22 such question. They argue it is unusually sensitive in light of the current political climate, that the

23 question will have a material impact on the census count, that the effects will be unevenly

24 distributed, and that the resulting undercount will be significant enough to affect the

25 reapportionment of representatives among the states. Thus, while each and every question on the

26 census need not be related to the goal of actual enumeration, see Baldridge v. Shapiro, 455 U.S.

27 345, 353 (1982) (acknowledging that the census “fulfils many important and valuable functions,”

28

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1 including “provid[ing] important data for Congress and ultimately for the private sector”), the

2 Secretary’s decision to alter the census in a way that affirmatively interferes with the actual

3 enumeration, and does not fulfill any other reasonable governmental purpose, is subject to a

4 challenge under the Enumeration Clause. Given these facts as alleged in the operative complaints,

5 which must be taken as true for the purposes of a motion to dismiss, plaintiffs make a sufficient

6 showing that the Secretary’s decision to add a citizenship will undermine the “strong

7 constitutional interest in accuracy” of the census, see Utah, 536 U.S. at 478, and thus violate the

8 Constitution’s actual enumeration command. Whether plaintiffs can ultimately sustain this

9 showing on the merits remains to be seen. At this juncture, dismissal is premature and plaintiffs

10 will be allowed to develop their claims as this case proceeds in due course.

11

V. CONCLUSION

12

For the reasons set forth above, defendants’ motions to dismiss are denied.

13 IT IS SO ORDERED.

14

15 Dated: August 17, 2018

16

______________________________________

17

RICHARD SEEBORG United States District Judge

18

19

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22

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United States District Court Northern District of California

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9

STATE OF CALIFORNIA, et al., 10

Case No. 18-cv-01865-RS

Plaintiffs, 11

18-cv-02279-RS

v.

12

WILBUR ROSS, et al., 13

ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT AND FOR

Defendants.

PARTIAL SUMMARY JUDGMENT

14

------------------------------------------------------

15

CITY OF SAN JOSE, et al.,

16

Plaintiffs,

17

v.

18

WILBUR L. ROSS, et al.,

19

Defendants.

20 I. INTRODUCTION
21 This action, comprising two related cases, arises from the U.S. Census Bureau’s decision
22 to include a question regarding citizenship status on the 2020 decennial census questionnaire. The
23 plaintiffs in these two related cases contend the decision to include this question violated the
24 Constitution and the Administrative Procedure Act (“APA”). Plaintiffs in Case No. 18-cv-1865
25 are the State of California, the County of Los Angeles, the City of Los Angeles, the City of
26 Fremont, the City of Long Beach, the City of Oakland, the City of Stockton, and the Los Angeles
27 Unified School District (collectively, “California Plaintiffs”). Plaintiffs in Case No. 18-cv-2279
28

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1 are the City of San Jose and the Black Alliance for Just Immigration (“BAJI”) (collectively, “San 2 Jose Plaintiffs”).1 Defendants in both matters are Wilbur Ross, in his official capacity as Secretary

3 of the U.S. Department of Commerce; the U.S. Department of Commerce; Ron Jarmin, in his

4 official capacity as Acting Director of the U.S. Census Bureau; and the U.S. Census Bureau.

5

Defendants now move for summary judgment with respect to all claims asserted against

6 them. The San Jose Plaintiffs move for partial summary judgment with respect to their APA claim.

7 For the reasons set forth below, these motions are denied.

8

II. BACKGROUND

9

The factual background of this case is set forth in the Order Denying Motion to Dismiss,

10 issued on August 17, 2018.

11

III. LEGAL STANDARD

12

Under the Federal Rules of Civil Procedure, a court must grant a motion for summary

13 judgment if, viewing the evidence in the light most favorable to the non-moving party, there is no
14 genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Fed. R.
15 Civ. P. 56(a); Valandingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989). When making
16 this evaluation, courts must draw all reasonable inferences in favor of the non-moving party.
17 Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 520-21 (1991). While summary judgment is
18 often an appropriate mechanism for deciding claims arising under the APA, Ctr. for Envtl. Health 19 v. McCarthy, 192 F. Supp. 3d 1036, 1040 (N.D. Cal. 2016), this is not the case where resolution of
a claim requires credibility determinations or inferences in favor of the moving party. See Fuller v. 20
Idaho Dep't of Corr., 865 F.3d 1154, 1165 (9th Cir. 2017); see also Buffalo Cent. Terminal v. 21
United States, 886 F. Supp. 1031, 1047-48 (W.D.N.Y. 1995) (refusing to grant summary judgment 22
on an APA claim because of credibility issues related to bad faith and pretext). 23

24

25
26 1 There is substantial overlap in the arguments presented by the San Jose Plaintiffs and the California Plaintiffs. Accordingly, certain portions of this order will treat Plaintiffs arguments
27 jointly.

28

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1

IV. DISCUSSION

2

The motions for summary judgment in this matter revolve around three questions: (1)

3 whether Plaintiffs have standing, (2) whether Defendants are entitled to summary judgment with

4 respect to the Enumeration Clause claim, and (3) whether either Defendants or the San Jose

5 Plaintiffs are entitled to summary judgment with respect to the APA claim.

6

A. Standing

7

To establish standing under Article III of the Constitution, a plaintiff must show (1) it has

8 suffered an “injury in fact,” (2) the injury is “fairly traceable to” the challenged action, and (3) the

9 injury would be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl.

10 Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). As the party invoking federal jurisdiction, the

11 plaintiff bears the burden of establishing all three requirements. Lujan v. Defs. of Wildlife, 504

12 U.S. 555, 561 (1992). Furthermore, plaintiffs may not rest upon mere allegations at the summary

13 judgment stage, but must “set forth by affidavit or other evidence specific facts” that support a

14 finding of standing. Id. These facts are presumed to be true at the summary judgment stage but
may be challenged at trial. Id. 15
1. Injury in Fact 16
To establish injury in fact, a plaintiff must demonstrate it “has sustained or is immediately 17
in danger of sustaining a direct injury” as a result of the challenged action. Spokeo, Inc. v. Robins, 18
136 S. Ct. 1540, 1552 (2016) (quotation omitted). This injury or threat of injury must be “concrete 19
and particularized” rather than conjectural or hypothetical. Lujan, 504 U.S. at 560. Thus, where 20
standing is based upon an alleged future injury, the plaintiff must demonstrate a substantial risk
21 the harm will occur. See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013); Monsanto Co.
22 v. Geertson Seed Farms, 561 U.S. 139, 153 (2010).

23

a. Injury to the California Plaintiffs

24

The California Plaintiffs argue the inclusion of the citizenship question on the census will

25 artificially depress the population count in California, resulting in a loss of federal funding and a

26 decrease in the state’s congressional apportionment. According to Defendants, however, the

27 Census Bureau’s “extensive procedures” for contacting non-responding households will prevent

28

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1 any undercount from occurring. Defs.’ Mot. Summ. J. 9. For example, households that do not

2 initially respond receive follow-up mailings encouraging them to fill out the questionnaire.

3 Households that still fail to respond are assigned an enumerator who physically visits the

4 household to conduct an interview. If these efforts are unsuccessful, the Census Bureau attempts

5 to contact a nearby proxy, such as a neighbor, to determine how many people live in the non-

6 responding household. Finally, if all else fails, the Bureau will attempt to impute the number of

7 persons in non-responding households by referring to administrative records.

8

Defendants further argue that, even if an undercount were to occur, it would not materially

affect either apportionment or federal funding. According to defense expert Stuart Gurrea, 9

assuming the Bureau’s non-response follow up (“NRFU”) operations are as successful in 2020 as 10

they were in 2010, California’s apportionment would not change even if the self-response rates 11
dropped significantly. Gurrea also estimates California’s federal funding would decline by no
12 more than 0.01 percent under such circumstances. According to Defendants, this loss of funding is

13 insufficient to establish injury in fact.

14 The California Plaintiffs respond by pointing to empirical research by expert Matthew

15 Barreto showing that between 7.1 and 9.7 percent of the nationwide population will not respond as

16 a result of the citizenship question. Decl. Barreto ¶ 19. Barreto estimates the drop-off rate in

17 California would be even higher—between 12.3 and 18 percent. Id. ¶ 20. Furthermore, the Census

18 Bureau itself conservatively estimated that inclusion of the citizenship question would result in a

19 5.8 percent decline in self-reporting in households with at least one non-citizen relative to all-

20 citizen households.

21

The California Plaintiffs also point to expert testimony that the Census Bureau’s NRFU

22 procedures and use of administrative imputation will not mitigate the differential response rates

23 between citizens and non-citizens, and may in fact exacerbate this differential. The California

24 Plaintiffs note, and Defendants do not dispute, that the Census Bureau’s NRFU procedures have

25 historically been less effective in reaching immigrant and non-citizen populations. Furthermore,

26 administrative records are less likely to exist for non-citizens, thereby perpetuating a systematic 27 undercount of this population. Abowd Dep. (Oct. 12, 2018) 255:2-8; O’Muircheartaigh Decl. 14-

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1 15.

2

Finally, the California Plaintiffs proffer expert testimony that any undercount of

3 California’s population relative to the rest of the country will result in a loss of federal funding to

4 the state. Defendants attempt to minimize this injury by referring to expert testimony that

5 California would suffer only a 0.01 percent loss in federal funding, which amounts to

6 approximately $215,000. “For standing purposes,” however, “a loss of even a small amount of

7 money is ordinarily an injury.” Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 983 (2017)
8 (quotation marks omitted).
In sum, Plaintiffs’ evidence, taken as true for the purposes of summary judgment, is 9
sufficient to establish injury with respect to the State of California, and therefore with respect to 10
the California Plaintiffs generally. See Leonard v. Clark, 12 F.3d 885, 888 (9th Cir. 1994) 11
(explaining that “once the court determines that one of the plaintiffs has standing, it need not 12
decide the standing of the others.”). 13
b. Injury to the San Jose Plaintiffs 14
The San Jose Plaintiffs point to essentially the same evidence discussed above to establish 15
a substantial risk of an undercount of immigrants and non-citizens. Furthermore, it is undisputed
16 that a disproportionate number of such persons reside in San Jose. Because the City of San Jose
17 operates at least two programs that receive federal funding based on census data, Plaintiffs
18 contend, the city will lose federal funding if the population of San Jose is underreported in the

19 2020 census. Clements Decl. ¶¶ 3, 4, 12, 14, 22, 23-27.

20

These facts, taken as true, are sufficient to establish injury in fact with respect to the San

21 Jose Plaintiffs. BAJI, however, also independently asserts injury in fact under both an

22 organizational standing theory and a loss of privacy theory.2 Under the organizational standing

23 doctrine, a plaintiff may establish injury in fact by alleging: “(1) frustration of its organizational

24 mission; and (2) diversion of its resources” to mitigate the effects of the challenged action. See

25
26 2 The loss of privacy theory received relatively short shrift in the parties’ briefing, accordingly resolution of this question is more appropriately addressed at trial, should the San Jose Plaintiffs
27 choose to pursue this argument.

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1 Smith v. Pac. Properties & Dev. Corp., 358 F.3d 1097, 1105 (9th Cir. 2004); see also E. Bay

2 Sanctuary Covenant v. Trump, No. 18-17274, 2018 WL 6428204, at *10-11 (9th Cir. Dec. 7,

3 2018) (reaffirming the organizational standing requirements).

4

In short, the organization must allege the defendant’s actions caused it to expend additional

5 resources and that, “but for” those actions, it would have used those resources to accomplish other

6 aspects of its organizational mission. See Nat’l Council of La Raza v. Cegavske, 800 F.3d 1032,

7 1040-41 (9th Cir. 2015). An organization may not, however, manufacture an injury by expending

8 resources to fix a problem that otherwise would not have affected it. See La Asociacion de
Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010). 9
According to BAJI’s Executive Director, the organization was originally founded in 2006 10
to mobilize against “repressive immigration bills that were pending before the United States 11
Congress at the time.” Tometi Decl. ¶ 3. BAJI’s broader organizational mission is to organize 12
African American and Black immigrant communities to advocate for “racial, social, and economic 13
justice.” Id. ¶ 6. BAJI fulfills this mission through “dialogues, presentations, workshops,
14 publications, technical assistance, and trainings.” Id. ¶ 7. According to the San Jose Plaintiffs, this
15 mission is harmed by the inclusion of the citizenship question because an undercount of immigrant

16 populations will dilute the political power of the communities BAJI seeks to organize and

17 diminish the amount of funding available to those communities. Id. ¶ 9.

18

In response to this threat, BAJI has diverted the organization’s resources to encourage its

19 constituents to participate in the census and to counteract the chilling effects of the citizenship

20 question. Id. ¶ 12-13. BAJI specifically alleges it has already expended considerable staff time

21 responding to constituents’ concerns and plans to spend an additional $200,000 over the next two

22 years educating constituents about the citizenship question. Id. ¶ 20. These averments, taken as

23 true, are sufficient to satisfy both organizational injury in fact requirements. Accordingly, for the

24 purposes of summary judgment, the San Jose Plaintiffs have established injury on this basis as

25 well.

26

2. Causation and Redressability

27

Defendants contend that, even if Plaintiffs can establish injury in fact, they cannot show

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1 the injury is traceable to Defendants’ actions or would be redressed if the question were removed

2 from the census questionnaire. According to Defendants, any person who is so fearful that he or

3 she refuses to respond to the census based on the presence of the citizenship question would likely

4 refuse to answer the census even if the citizenship question were removed. While some individuals

5 may refuse to respond to the census regardless of whether it includes the citizenship question,

6 Plaintiffs have adduced evidence, and the Bureau’s own study revealed, that the inclusion of this

7 question is likely further to depress the response rate of non-citizens and their relatives.

8

In sum, Plaintiffs have set forth sufficient evidence to support a finding of standing and

therefore defeat Defendants’ motion for summary judgment on this issue. The presence of 9

disputed facts likewise precludes the San Jose Plaintiffs’ motion for partial summary judgment on 10
that question.3 11

B. Merits 12

As explained above, Defendants seek summary adjudication of both the Constitutional and 13

APA claims raised in this suit. The San Jose Plaintiffs seek summary judgment solely with respect 14

to their APA claim while the California Plaintiffs have elected not to seek summary judgment. 15
1. Enumeration Clause Claim4 16

Defendants seek summary judgment with respect to the Enumeration Clause claim based 17

on two alternate theories. First, Defendants argue the Enumeration Clause only requires that “the 18

population be determined by a person-by-person headcount, rather than through estimate or 19

conjecture.” Defs.’ Mot. Summ. J. (State of California v. Ross) 15; Defs.’ Mot. Summ. J. (City of 20

San Jose v. Ross) 16. Therefore, because there is no dispute that the Census Bureau will attempt to 21

conduct a person-by-person count, the Enumeration Clause, Defendants argue, is satisfied. In the 22

23 3 Plaintiffs advance additional arguments in favor of standing which are not explicitly discussed
24 here. Each of these arguments ultimately relies upon a question of fact that cannot be resolved at the summary judgment stage. To the extent Plaintiffs wish to raise these additional standing
25 arguments at trial, they remain free to do so.
26 4 The San Jose Plaintiffs also raise an Apportionment Clause claim. As noted in the Order Denying Motion to Dismiss, issued on August 17, 2018, the Apportionment Clause and
27 Enumeration Clause claims rise and fall together.

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1 order denying Defendants’ motion to dismiss, issued on August 17, 2018, this argument was

2 rejected. As explained in that order, “there may be a rare question that is so uniquely impactful on

3 the process of counting itself, that it becomes akin to a mechanics-of-counting-type challenge,

4 which is plainly reviewable under the Enumeration Clause.” Order Deny. Mot. Dismiss 28.

5 Accordingly, a “decision to alter the census in a way that affirmatively interferes with the actual

6 enumeration, and does not fulfill any other reasonable governmental purpose, is subject to a

7 challenge under the Enumeration Clause.” Id. 29.

8

Second, Defendants argue, “to the extent the Court is concerned about the accuracy of the

9 enumeration,” Plaintiffs have failed to establish a genuine dispute of fact regarding the likelihood

10 of an undercount. Defs.’ Mot. Summ. J. (State of California v. Ross) 17; Defs.’ Mot. Summ. J.

11 (City of San Jose v. Ross) 18. In reaching this conclusion, Defendants rely on the same arguments

12 advanced in the standing section. In short, Defendants argue the Census Bureau’s follow-up

13 procedures prevent Plaintiffs from showing that an undercount “sufficient to violate the

14 Enumeration Clause” is likely to occur. Defs.’ Reply (City of San Jose v. Ross) 7.

15

Plaintiffs, however, provide substantial evidence that these follow-up procedures will still

16 systematically undercount non-citizens. In particular, Plaintiffs point to testimony by expert Colm

17 O’Muircheartaigh that NRFU and imputation methods are unlikely to eliminate the impact of

18 differential non-response rates between citizens and non-citizens, and may in fact exacerbate that

19 differential. O’Muircheartaigh Decl., Ex. 2 at 2-3, 12, 16-17. This is particularly true, Plaintiffs

20 contend, with respect to administrative imputation. Id., Ex. 2 at 15. Furthermore, Plaintiffs argue it

21 will be more difficult to find willing proxy respondents in tracts containing higher proportions of

22 non-citizens. Id., Ex. 2 at 16.

23

In light of the foregoing arguments, there is a material dispute of fact regarding whether,

24 and to what extent, the addition of the citizenship question will impact the final enumeration of the

25 public. Defendants’ motion for summary judgment with respect to the Enumeration Clause claim

26 is, accordingly, denied.

27

2. APA Claim

28

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1

Plaintiffs each advance two theories in support of their respective APA claims. First,

2 Plaintiffs contend the decision to include the citizenship question was arbitrary and capricious.

3 Second, Plaintiffs argue the addition of the question was ultra vires, thereby giving rise to a claim

4 under 5 U.S.C. § 706(2)(C). As a preliminary matter, Defendants argue review of Plaintiffs’ APA

5 arbitrary and capricious claim should be confined to the administrative record. It is not necessary

6 to decide whether extra-record evidence is admissible at this stage because the San Jose Plaintiffs’

7 motion relies exclusively on evidence in the administrative record and because Defendants’

8 motions fail regardless of whether such evidence is considered. The scope of review remains to be

9 resolved at trial.

10

a. APA Arbitrary and Capricious Review

11

The standard for evaluating whether an agency’s decision was arbitrary and capricious is

12 whether the decision “was the product of reasoned decisionmaking.” Motor Vehicle Mfrs. Ass’n of

13 U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52 (1983). This standard is deferential,

14 Pac. Dawn LLC v. Pritzker, 831 F.3d 1166, 1173 (9th Cir. 2016), and does not permit the Court to

15 “substitute its judgment for that of the agency,” Ctr. for Bio. Diversity v. Zinke, 868 F.3d 1054,

16 1057 (9th Cir. 2017). The focus at all times must remain on whether the agency “considered the

17 relevant factors and articulated a rational connection between the facts found and the choices

18 made.” Nw. Ecosys. All. v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140, 1145 (9th Cir. 2007)

19 (quotation omitted).

20

Little doubt remains that Secretary Ross entered office with an interest in reinstating the

21 citizenship question. After some discussion of the issue with other political appointees, the

22 Secretary solicited the views of the Department of Justice (“DOJ”) on the matter. DOJ staff

23 initially declined to request the addition of the citizenship question. After the Secretary met with

24 then Attorney General Jeff Sessions, however, Defendants received a letter from DOJ requesting

25 that “the Census Bureau reinstate on the 2020 Census questionnaire a question regarding

26 citizenship.” AR 663. This letter stated that citizenship data is “critical” to DOJ’s Voting Rights

27 Act enforcement and indicated that collecting data through the census would provide block-level

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1 citizenship data, which would be preferable to the data available through the American

2 Community Survey (“ACS”). Id. 663-65.

3

The Secretary subsequently requested the Census Bureau perform a technical review to

4 determine how best to obtain the requested data. The Census Bureau evaluated three possible

5 options: (A) make no change to the census questionnaire, but assist DOJ with statistical modeling,

6 (B) include a citizenship question on the census, or (C) obtain citizenship data from administrative

7 records. The Census Bureau ultimately advised against Option B, pointing out that responses to

8 the citizenship question are frequently inaccurate and that inclusion of the question would be

9 costly and would depress response rates. Census Bureau staff concluded that relying on

10 administrative records to collect citizenship data would be a more effective means of providing the

11 requested data and would avoid the drawbacks associated with the citizenship question.

12

At the Secretary’s request, the Bureau subsequently evaluated a fourth course of action,

13 Option D, which combined Options B and C. Census Bureau staff advised the Secretary that this

14 hybrid option suffered from the same defects as simply adding the citizenship question. Secretary

15 Ross, however, ultimately chose Option D. In his memo, the Secretary stated that “placing the

16 question on the decennial census and directing the Census Bureau to determine the best means to

17 compare the decennial census responses with administrative records” would “provide DOJ with

18 the most complete and accurate [citizenship] data in response to its request.” Id. 1317. He also

19 asserted that “no one provided evidence that reinstating a citizenship question on the decennial

20 census would materially decrease response rates.” Id. Secretary Ross opined that any decrease in

21 responses rates would be offset by the NRFU procedures and that, in any event, the value of

22 providing DOJ with more complete data regarding citizenship outweighed “any adverse effect that

23 may result from people violating their legal duty to respond.” Id. 1319.

24

Defendants argue Secretary Ross’s decision to add the citizenship question was not

25 arbitrary and capricious because he evaluated the costs and benefits of adding the question and

26 explained the reasoning behind his decision. According to the government, Secretary Ross’s

27 consultation with census bureau staff and consideration of multiple options support this

28

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1 conclusion. Defendants further argue that Secretary Ross considered whether to test the citizenship

2 question, but ultimately chose not to because “the question is already asked on the American

3 Community Survey” and he could therefore “accept the cognitive research and questionnaire

4 testing from the ACS instead of independently retesting the citizenship question.” Id. 1279.

5 Finally, Defendants argue that even if the Secretary was subjectively predisposed to reinstate the

6 citizenship question, this does not necessarily render his ultimate decision arbitrary and capricious.

7 Jagers v. Fed. Crop Ins. Corp., 758 F.3d 1179, 1186 (10th Cir. 2014) (rejecting the idea that an

8 agency’s “subjective desire to reach a particular result must necessarily invalidate the result,

9 regardless of the objective evidence supporting the agency’s conclusion”).

10

Plaintiffs, for their part, argue Secretary Ross’s decision to add the citizenship question

11 was arbitrary and capricious for three reasons: (1) the agency “relied on factors which Congress

12 has not intended it to consider,”5 (2) the agency “entirely failed to consider an important aspect of

13 the problem,” and (3) the agency “offered an explanation for its decision that runs counter to the

14 evidence before the agency, or is so implausible that it could not be ascribed to a difference in

15 view or the product of agency expertise.” State Farm, 463 U.S. at 43. Plaintiffs specifically allege:

16 Secretary Ross’s stated reasons for adding the question were pretextual and he instead relied upon

17 improper political concerns; the Secretary failed to consider the necessity of testing the citizenship

18 question before including it on the census; and the Secretary ignored all scientific evidence in

19 deciding to add the citizenship question.

20

Considering only the administrative record, neither party is entitled to summary judgment

21 with respect to the APA claim. First, the questions whether Secretary Ross’s decision to add the

22 citizenship question was pretextual depends upon what inferences flow from the discussions

23

24 5 The California Plaintiffs propose a slightly different version of this argument. Although the San
25 Jose Plaintiffs and the California Plaintiffs each advance an argument based on pretext, the California Plaintiffs base their pretextual argument on the theory the Secretary failed to disclose
26 and explain the true basis of his decision, as required under the APA. State Farm, 463 U.S. at 48. This distinction, however, does not meaningfully affect the analysis of the parties’ motions for
27 summary judgment.

28

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1 between Secretary Ross, his staff, and various other political appointees, and from Secretary Ross’

2 belatedly admission that the DOJ request was obtained only after Secretary Ross asked DOJ to

3 intervene. While Plaintiffs present seemingly strong evidence of an ulterior motive, this question

4 cannot be resolved without certain inferences and credibility determinations regarding statements

5 in the record.

6

Second, there are material disputes regarding whether the Secretary failed to “consider an

7 important aspect of the problem” before making his decision. In particular, the parties disagree

8 about the degree to which Secretary Ross considered relevant cognitive and field testing data

9 regarding the performance of the citizenship question. While both parties agree that the addition of

10 the citizenship question to the census was not independently tested, they disagree about the extent

11 to which testing of the ACS’s citizenship question can stand in for census-specific testing.

12

Defendants argue the ACS testing is an adequate substitute for independently testing the

13 citizenship question as a part of the census instrument. Plaintiffs, however, point out the decision

14 not to perform independent cognitive and field testing departs from the Census Bureau’s past

15 practices, AR 1296, and underscore a letter from six former Bureau chiefs emphasizing the

16 importance of independently testing the citizenship question, Id. 1057-58. Accordingly, resolving

17 whether the Secretary failed to consider “an important aspect” of the problem depends upon

18 whether Secretary Ross could have rationally concluded ACS testing provided the necessary

19 information. As this question cannot be resolved without the benefit of certain inferences and

20 credibility determinations, a trial will be necessary to determine this issue.

21

Finally, ascertaining whether the Secretary’s decision “runs counter to the evidence before

22 the agency, or is so implausible that it could not be ascribed to a difference in view” depends upon

23 inferences that cannot be resolved at the summary judgment stage. While Plaintiffs present

24 substantial evidence that adding the citizenship question to the census was not an effective method

25 of obtaining the requested citizenship data, deciding the case in their favor ultimately requires a

26 determination that the Census Bureau’s analysis was credible. Assessing the credibility of the

27 Census Bureau’s analysis is, however, an issue for trial.

28

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1

The Defendants, for their part, do not point to any evidence in the administrative record

2 showing that the addition of the citizenship question was an effective method of collecting

3 citizenship data. Rather, the Defendants argument seems to rest upon the assumption that the

4 Census Bureau’s analysis was incorrect, and that Secretary Ross was therefore free to conclude the

5 addition of the citizenship question was an effective method of achieving his stated goals without

6 negatively affecting the accuracy of the census count. Ruling in Defendants’ favor would therefore

7 require the Court to conclude the Census Bureau’s analysis carried little to no weight and therefore

8 could reasonably be disregarded, even absent contradictory evidence. Defendants are entitled to no

9 such inference at the summary judgment stage. Accordingly, considering only the administrative

10 record, both Defendants’ and the San Jose Plaintiffs’ motions for summary judgment must be

11 denied.

12

a. APA Ultra Vires Theory

13

In addition to the APA arbitrary and capricious theory discussed above, Plaintiffs allege

14 Secretary Ross’s decision to add the citizenship question exceeded his statutory authority and

15 therefore violated the APA. Plaintiffs specifically contend the Secretary acted in excess of his

16 statutory authority under section 141(f) and section 6(c) of the Census Act. 13 U.S.C. §§ 141(f),

17 6(c). Defendants seek summary judgment with respect to both sections.6 The San Jose Plaintiffs

18 seek summary judgment only with respect to section 6(c).

19

i. Section 141(f)

20

Under section 141(f)(2), the Secretary of Commerce must submit to Congress “not later

21 than 2 years before the appropriate census date, a report containing the Secretary's determination

22 of the questions proposed to be included in such census.” Id. § 141(f)(2). If, after submission of

23 this report, the Secretary “finds new circumstances exist which necessitate that the subjects, types

24 of information, or questions contained in reports” be modified, he or she must submit a new report

25
26 6 Defendants, in passing, request summary judgment with respect to the Information Quality Act. Plaintiffs clarified that they are not advancing an independent theory under that act, and
27 accordingly there is no need to address this issue.

28

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1 describing these modifications. Id. § 141(f)(3). According to Plaintiffs, Secretary Ross acted in

2 excess of his authority by adding the citizenship question in the absence of new circumstances

3 justifying this modification. Plaintiffs further contend the Secretary was required to disclose these

4 new circumstances in his report to Congress. In the alternative, Plaintiffs argue they may challenge

5 the Defendants’ purported failure to report to Congress as a final agency action in its own right

6 because it implemented a decision “from which legal consequences will flow.” U.S. Army Corps

7 of Engineers v. Hawkes Co., 136 S. Ct. 1807, 1813 (2016).

8

Defendants argue a failure to report to Congress is not an “agency action” that is subject to

9 challenge. See 5 U.S.C. § 551; Wild Fish Conserv. v. Jewel, 730 F.3d 791, 800-01 (9th Cir. 2013).

10 Defendants further contend that requiring Defendants to submit a new report under section

11 141(f)(3) would not redress any injury and therefore fails Article III’s standing requirements. See

12 Renee v. Duncan, 686 F.3d 1002, 1016-17 (9th Cir. 2012). Finally, and most pertinently,

13 Defendants ague section 141(f) does not impose any substantive limitations on the Secretary’s

14 discretion regarding the contents of the decennial census.

15

While Defendants are correct that the primary function of section 141(f) is to impose

16 reporting requirements, it also imposes substantive limitations on the Secretary’s ability to modify

17 the census. Any other reading would render the “new circumstances” clause superfluous and

18 undermine the purpose of the statute. Section 141(f)(3) requires that, “if the Secretary finds new

19 circumstances exist which necessitate that the subjects, types of information, or questions”

20 included in the census be modified, he submit a new report detailing these modifications. 13 U.S.C

21 § 141(f)(3). Under Defendants’ reading of this section, the Census Bureau could overhaul the

22 census questionnaire the day before the census begins even if there were no new circumstances

23 justifying this change. Furthermore, so long as this change was not based on any “new

24 circumstances,” the statute would not even require the Census Bureau to report these changes to

25 Congress. This reading runs contrary to the purpose of the section and ascribes a perverse meaning

26 to the “new circumstances” clause.

27

Perhaps the more charitable interpretation of Defendants’ position is that the phrase “if the

28

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1 Secretary finds new circumstances exist” has no effect whatsoever. Under this interpretation, the

2 Census Bureau would be required to report all changes to Congress, but would be free to make

3 these changes at any time and for any reason. Construing the statute in this manner would, of

4 course, render the “new circumstances” clause utterly meaningless. This runs afoul of one of the

5 most basic canons of construction, that a “statute should be construed so that effect is given to all

6 its provisions, so that no part will be inoperative or superfluous, void or insignificant.” Corley v.

7 United States, 556 U.S. 303, 314 (2009) (quoting Hibbs v. Winn, 542 U.S. 88, 101 (2004)).

8 Furthermore, the inclusion of the “new circumstances” clause in section 141(f)(3), but not in

9 section 141(f)(2), suggests Congress wished to limit the Secretary’s ability to make changes to the

10 census after the two year mark.

11

Ultimately, the more straightforward reading of this section, which gives effect to all parts

12 of the text, is that, once the Secretary has submitted the section 141(f)(2) report, he or she may

13 modify the questions included on the census only if “new circumstances” so require, and must 14 report these modifications to Congress.7

15

Because the final agency action at issue here is the modification of the census, not the

16 report itself, Defendants arguments regarding jurisdiction and standing are unavailing. There is no

17 indication in the statute, however, that the Secretary must explain the new circumstances in the

18 report to Congress. Accordingly, resolution of this claim ultimately turns on whether the Secretary

19 concluded new circumstances necessitated addition of the citizenship question. In practice, there

20 appears to be little daylight between a finding that no new circumstances necessitated addition of

21 the citizenship question and a finding that the decision to add the census question was arbitrary

22 capricious. Here, both arguments turn on whether the Secretary’s reliance on the DOJ’s formal

23 request was mere pretext or whether the DOJ’s request was in fact the basis for modifying the

24 census questionnaire. As explained above, this question cannot be resolved without the benefit of

25
26 7 Notably, Defendants do not request Chevron deference. Even if this argument were properly raised, Chevron deference is not appropriate here because the canons of construction provide a
27 clear interpretation of the statute. See Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1630 (2018).

28

ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT

CASE NO. 18-cv-01865-RS

15

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United States District Court Northern District of California

1 credibility determinations and inferences that cannot be made at the summary judgment stage.

2

ii. Section 6(c)

3

Section 6(c) requires the Secretary to rely on administrative records rather than direct

4 inquiries “[t]o the maximum extent possible” when collecting supplemental data on behalf of other

5 agencies. 13 U.S.C. § 6(c). According to Plaintiffs, Defendants violated this provision by

6 including the citizenship question in the census rather than relying exclusively on administrative

7 records. Defendants respond by noting this section allows the Secretary to consider “the kind,

8 timeliness, quality and scope of the statistics required” in determining whether to conduct direct

9 inquiries or rely on administrative data. Id. Furthermore, Defendants argue, the Secretary’s

10 discretion on this matter was not meant to be reviewed by the courts.

11

Defendants do not cite any authority for the proposition that the Secretary’s compliance

12 with section 6(c) is immune from judicial review. Defendants are correct, however, that section

13 6(c) provides the Secretary with discretion to decide whether a direct inquiry is warranted.

14 Therefore, for all intents and purposes, this question collapses with the arbitrary and capricious

15 review inquiry. Both issues turn on whether the Secretary had a valid basis for adding the

16 citizenship question rather than relying on administrative records as recommended by Census

17 Bureau staff. Accordingly, the parties’ motions for summary judgment on this question are denied

18 for the reasons set forth in Part A.2.

19

V. CONCLUSION

20

For the reasons set forth above, the parties’ motions for summary judgment and for partial

21 summary judgment are denied.8

22

23 IT IS SO ORDERED.

24

25

26 8 In light of the denial of the San Jose Plaintiffs’ motion, there is no need to reach the question of
27 remedy. This remains an open question for resolution at the trial of this action as necessary.

28

ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT

CASE NO. 18-cv-01865-RS

16

Case 3:18-cv-02279-RS Document 119 Filed 12/14/18 Page 17 of 17

United States District Court Northern District of California

1 Dated: 12/14/2018 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

______________________________________ RICHARD SEEBORG United States District Judge
ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT
CASE NO. 18-cv-01865-RS 17

 
 Case 3:18-cv-02279-RS Document 197 Filed 03/13/19 Page 1 of 3

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9

10 STATE OF CALIFORNIA, et al.

Case No. 18-cv-01865-RS

11

Plaintiffs,

18-cv-02279-RS

12

v.

13 WILBUR L. ROSS, et al.,

14

Defendants.

FINAL JUDGMENT, ORDER OF VACATUR, AND PERMANENT INJUNCTION

15 ------------------------------------------------------

16 CITY OF SAN JOSE, et al.,

17

Plaintiffs,

18

v.

19 WILBUR L. ROSS, et al.,

20

Defendants.

21

22

23

In accordance with the Court’s Findings of Fact and Conclusions of Law, dated March 6,

24 2019, and Rule 58(b)(2)(B) of the Federal Rules of Civil Procedure, it is ORDERED,

25 ADJUDGED, and DECREED as follows:

26

27

28

Case 3:18-cv-02279-RS Document 197 Filed 03/13/19 Page 2 of 3

1

FINAL JUDGMENT

2

Final judgment is entered for Plaintiffs and against Defendants on Plaintiffs’ claims

3 arising under the Enumeration Clause and the Fourteenth Amendment (the First Cause of Action

4 in the Complaints in each of No. 18-cv-1865 and No. 18-cv-2279).

5

Final judgment is entered for Defendants and against Plaintiffs the City of San Jose and

6 Black Alliance for Just Immigration (the “San Jose Plaintiffs”) on the San Jose Plaintiffs’ claim

7 arising under the Apportionment Clause (the Second Cause of Action in the Complaint in No. 18-

8 cv-2279).

9

Final judgment is entered for Plaintiffs and against Defendants on Plaintiffs’ claims

10 arising under the Administrative Procedure Act (the Second Cause of Action in the Complaint in

11 No. 18-cv-1865 and the Third and Fourth Causes of Action in No. 18-cv-2279).

12

VACATUR AND REMAND

13

Secretary Ross’s March 26, 2018 decision to include the citizenship question on the 2020

14 Census is VACATED and the matter is REMANDED to the Department of Commerce.

15

PERMANENT INJUNCTION

16

In accordance with the above judgment in favor of Plaintiffs on their claims arising under

17 the Administrative Procedure Act, Defendants, including the Secretary of Commerce in his

18 official capacity, the Director of the Census in his official capacity, and any successors to those

19 offices, together with their agents, servants, employees, attorneys, and other persons who are in

20 active concert or participation with the foregoing, see Fed. R. Civ. P. 65(d)(2), are

21 PERMANENTLY ENJOINED from including the citizenship question on the 2020 Census

22 unless:

23

(1) Defendants establish that direct inquiries regarding citizenship are necessary given the

24

“kind, timeliness, quality and scope of the statistics required” and that administrative

25

records will not suffice, 13 U.S.C. § 6(c);

26

(2) Defendants identify new circumstances that necessitate the last minute addition of the

27

citizenship question to the census, id. § 141(f)(3); and

28

(3) Secretary Ross considers all relevant factors and evidence, and sets forth the actual

Case 3:18-cv-02279-RS Document 197 Filed 03/13/19 Page 3 of 3

1

basis for his decision.

2

In addition, in accordance with the above judgment in favor of Plaintiffs on their claims

3 arising under the Enumeration Clause, Defendants, including the Secretary of Commerce in his

4 official capacity, the Director of the Census in his official capacity, and any successors to those

5 offices, together with their agents, servants, employees, attorneys, and other persons who are in

6 active concert or participation with the foregoing, see Fed. R. Civ. P. 65(d)(2), are

7 PERMANENTLY ENJOINED from including the citizenship question on the 2020 Census,

8 regardless of any technical compliance with the Administrative Procedure Act.

9

10 IT IS SO ORDERED.

11

12 Dated: March 13, 2019

13

14

____________________________________ RICHARD SEEBORG

15

United States District Judge

16

CASE NOS. 18-cv-01865-RS, 18-cv-02279-RS

17

18

19

20

21

22

23

24

25

26

27

28

 
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United States District Court

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9

10

STATE OF CALIFORNIA, et al.,

11

Plaintiffs,

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

12

v.

13

14

WILBUR ROSS, et al.,

15

Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

16

---------------------------------------------------

17

CITY OF SAN JOSE, et al.,

18

Plaintiffs,

19

v.

20

21

WILBUR L. ROSS, et al.,

22

Defendants.

23

24

25

26

27

28

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United States District Court

TABLE OF CONTENTS
1 I. SUMMARY OF DECISION ........................................................................................... 3
2
3 II. BACKGROUND.............................................................................................................. 6

4 III. STANDING .................................................................................................................. 8

5

A. Legal Standard ........................................................................................................... 8

6 B. Findings of Fact Related to Standing ........................................................................ 9
7 C. Conclusions of Law Related to Standing ................................................................ 49
8

9

1. Injury-in-Fact ....................................................................................................... 50

10

2. Traceability .......................................................................................................... 55

11

3. Redressability....................................................................................................... 57

12 IV. APA CLAIM ............................................................................................................... 58
13

A. Legal Standard ......................................................................................................... 58 14

15

B. Scope of Review ...................................................................................................... 58

16

C. Findings of Fact Based Exclusively on the Administrative Record ........................ 60

17

D. Findings of Fact Based on Extra-Record Evidence ................................................. 87

18 E. Conclusions of Law ............................................................................................... 105
19

20 V. CONSTITUTIONAL CLAIMS ................................................................................... 118

21

A. Legal Standard ....................................................................................................... 119

22

B. Scope of Review .................................................................................................... 120

23

C. Conclusions of Law ............................................................................................... 121

24
VI. REMEDIES ............................................................................................................... 124 25

26

27

28 CASE NO. 18-cv-01865-RS; 18-cv-02279-RS
2

United States District Court

Case 3:18-cv-02279-RS Document 196 Filed 03/06/19 Page 3 of 126
I. SUMMARY OF DECISION 1
The formal decision by Secretary of Commerce Wilbur L. Ross, Jr. on March 26, 2
2018 to add a citizenship question to the 2020 Decennial Census violated the Administrative 3
Procedure Act (“APA”) and the Enumeration Clause of the United States Constitution. 4
Nearly a year before issuing that decision, on May 2, 2017, Secretary Ross sent an email to 5
Deputy Chief of Staff Earl Comstock stating in part “I am mystified why nothing [has] been 6
done in response to my months old request that we include the citizenship question. Why 7
not?” What ensued was a cynical search to find some reason, any reason, or an agency 8
request to justify that preordained result. 9
As to the APA, one need look no further than the Administrative Record1 to conclude 10
that the decision to include the citizenship question was arbitrary and capricious, represented 11
an abuse of discretion, and was otherwise not in accordance with law. In response to 12
Secretary Ross’s demand, Comstock began to search for an agency that would be willing to 13
request the inclusion of the citizenship question in the 2020 Census. When initially 14
approached by Comstock about the citizenship question, the Department of Justice (“DOJ”) 15
opted not to request its inclusion in the census. Comstock then reached out to the Department 16
of Homeland Security, which similarly declined to request the addition of the question. Only 17
after Secretary Ross personally interceded with then Attorney General Jeff Sessions did the 18
DOJ switch its position and request the inclusion of a citizenship question, ostensibly to 19
assist in the enforcement of Section 2 of the Voting Rights Act (“VRA”). 20
Despite unrefuted evidence produced by the professional staff of the Census Bureau 21
that inclusion of a citizenship question would likely result in a significant differential decline 22
in self-response rates within noncitizen and Latino communities and that the requested data 23
24 1 The Administrative Record comprises all documents identified in the parties’ stipulation,
25 specifically: AR 1 through AR 13024 (PTX-001 through PTX-014); PTX-016 through PTX152; PTX-154; PTX-156; PTX-157; PTX-164 through PTX-170; PTX-172 through PTX-
26 182; PTX-184; PTX-185; PTX-227; PTX-228; PTX-244; PTX-264; PTX-274; PTX-362; PTX-363; PTX-370; PTX-374 through PTX-390; PTX-397; PTX-399 through PTX-433;
27 PTX-435 through PTX-452. Joint Pretrial Statement 11-12.
28 CASE NO. 18-cv-01865-RS; 18-cv-02279-RS
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1 could be obtained by other means, Secretary Ross insisted upon adding the citizenship

2 question to the census. When Census Bureau staff offered to meet with DOJ staff to ascertain

3 if other available data could be used to meet their VRA enforcement needs, DOJ took the

4 unprecedented step of refusing to allow even such an inter-agency meeting to take place.

5

These facts and other evidence contained in the Administrative Record, along with all

6 reasonable inferences to be drawn therefrom, demonstrate that Secretary Ross’s reliance on

7 VRA enforcement to justify inclusion of the citizenship question was mere pretext and the

8 definition of an arbitrary and capricious governmental act. Moreover, Secretary Ross’s

9 conclusion that adding the citizenship question would enable the Census Burau to obtain

10 more “complete and accurate data” in response to the DOJ’s request is not only unsupported,

11 it is directly contradicted by the scientific analysis contained in the Administrative Record.

12 PTX-26 at 1, 7. While it is of course appropriate for an incoming cabinet member to

13 advocate for different policy directions, to solicit support for such views from other agencies,

14 and to disagree with his or her professional staff, this record reflects a profoundly different

15 scenario: an effort to concoct a rationale bearing no plausible relation to the real reason,

16 whatever that may be, underlying the decision.

17

Again confining review solely to the Administrative Record, it is evident that the

18 inclusion of the citizenship question on the 2020 Census violated both Sections 6(c) and

19 141(f)(3) of the 1976 Census Act. Section 6(c) mandates that, to the maximum extent

20 possible, the Secretary use administrative records as opposed to additional census questions

21 to obtain secondary data, such as demographic information. Section 141(f) mandates certain

22 timely reports to Congress regarding the subject and questions to be included on the census

23 and limits the Secretary’s ability subsequently to modify the contents of the census absent

24 new circumstances that necessitate a change. Quite simply, Secretary Ross ignored these

25 statutory requirements in issuing his March 26, 2018 decision.

26

While finding a violation of the APA logically flows from the Administrative Record

27 in this action alone, the facts here satisfy the requisite standard warranting consideration of

28 CASE NO. 18-cv-01865-RS; 18-cv-02279-RS
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1 extra-record evidence. Such evidence includes the absence of any effort to test the impact of

2 the addition of the citizenship question to the census, the deviation from the Census Bureau’s

3 usual process for adding new questions to the census, the troubling circumstances under

4 which the DOJ’s request letter was drafted and procured, and Sessions’ order prohibiting

5 DOJ staff from meeting with Census Bureau officials to discuss alternative sources of data

6 that could meet DOJ’s VRA enforcement needs. Going beyond the Administrative Record,

7 in short, confirms that the decision to include a citizenship question runs afoul of the APA.

8

The analysis of the Enumeration Clause claim similarly involves evidence beyond

9 the four corners of the Administrative Record. As a general proposition, the decision to

10 include a specific question on the census is committed to the discretion of the Commerce

11 Secretary and does not implicate the constitutional command that all persons in each state be

12 counted every ten years. However, if the Secretary’s decision to include a question

13 affirmatively interferes with the actual enumeration and fulfills no reasonable governmental

14 purpose, it may form the basis for a cognizable Enumeration Clause challenge.

15

The evidence admitted in the trial of these actions demonstrates that a significant

16 differential undercount, particularly impacting noncitizen and Latino communities, will

17 result from the inclusion of a citizenship question on the 2020 Census, compounded by

18 macro-environmental factors arising out of the national immigration debate. Efforts to

19 ameliorate these effects through Non-Response Follow-Up (“NRFU”), the evidence showed,

20 would not remediate and could in fact exacerbate the differential undercount of noncitizens

21 and Latino persons. While a citizenship question had been included in the decennial census

22 in 1950 and before, the analysis now must turn on the impact of that question on the prospect

23 of achieving the central constitutional purpose of an actual enumeration in 2020. Viewed

24 through that lens, the inclusion of the question is contrary to the Constitution.

25

Plaintiffs in each of these actions satisfied their burden of demonstrating standing

26 under Article III of the Constitution. The State of California demonstrated that it will suffer a

27 loss of federal funding and face a substantial risk of losing political representation directly

28 CASE NO. 18-cv-01865-RS; 18-cv-02279-RS
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1 traceable to the inclusion of the citizenship question on the census. California established

2 that the inclusion of this question will also require the expenditure of additional funds to

3 attempt to mitigate the effects of the question and minimize the resulting undercount of

4 California vis-à-vis other states. Similarly, the City of San Jose and the Black Alliance for

5 Just Immigration (“BAJI”) each established injury directly flowing from the addition of the

6 citizenship question. In the case of San Jose, it showed the negative impact on federal

7 funding it would receive for various programs dependent on census data and the additional

8 resources that would be required to attempt to mitigate those effects. As to BAJI, the

9 organization demonstrated that it will be obliged to commit additional time and resources to

10 address the specific effects of the citizenship question on its constituents and to encourage

11 them to participate despite the perceived risks.

12

In light of the statutory and constitutional violations outlined above, the issue

13 becomes the appropriate remedy. With respect to the APA claim, consistent with and for the

14 reasons stated in New York v. United States Dep’t of Commerce, No. 18-cv-2921 (S.D.N.Y.

15 Jan. 15, 2019) (the “New York matter”), vacatur of the Secretary’s decision, remand to the

16 agency, and an injunction against inclusion of the citizenship question on the 2020 census is

17 warranted and will be ordered. As to the Enumeration Clause violation, an injunction is the

18 proper relief. The Department of Commerce urges that any relief should be limited to the

19 particular plaintiffs before the Court. While mindful of the concerns regarding individual

20 district courts issuing orders of national scope, the limitation advanced by Defendants here is

21 simply impractical in light of the nationwide nature of the questionnaire at issue.

22 Accordingly, no such limitation will be included in the injunctive relief ordered by this

23 Court.

24

II. BACKGROUND

25

This action, comprising two related cases, arises from the U.S. Census Bureau’s

26 decision to include a question regarding citizenship status on the 2020 Census questionnaire.

27 Plaintiffs in Case No. 18-cv-1865 are the State of California, the County of Los Angeles, the

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1 City of Los Angeles, the City of Fremont, the City of Long Beach, the City of Oakland, the

2 City of Stockton, and the Los Angeles Unified School District (collectively, “California

3 Plaintiffs”). Plaintiffs in Case No. 18-cv-2279 are the City of San Jose and the Black

4 Alliance for Just Immigration (“BAJI”) (collectively, “San Jose Plaintiffs”). Defendants in

5 both matters are Wilbur L. Ross, Jr., in his official capacity as Secretary of the U.S.

6 Department of Commerce; the U.S. Department of Commerce; Stephen Dillingham, in his

7 official capacity as Director of the United States Census Bureau; and the U.S. Census

8 Bureau. During the relevant period Dr. Ron Jarmin served as Acting Director of the United

9 States Census Bureau.

10

On March 26, 2018, Secretary Ross issued a memorandum (the “Decision Memo”)

11 directing the Census Bureau to add a question on citizenship status to the 2020 Census. PTX-

12 1 at 1313-20. Plaintiffs contend the decision to include this question violated the

13 Constitution and the APA. They specifically argue Secretary Ross’s decision violated the

14 Enumeration Clause, U.S. Const. art. I, § 2, cl. 3, and was “arbitrary, capricious, [and]

15 otherwise not in accordance with law” under the APA, 5 U.S.C. § 706(2)(A).2 The San Jose

16 Plaintiffs also allege a violation of the Apportionment Clause of the Constitution. U.S.

17 Const. amend. XIV, § 2.

18

The process by which the decennial census is taken has changed significantly over

19 the years, as have the questions asked in the census instrument. From 1790 to 1960, the

20 Bureau collected data directly from households through in-person interviews. Undisputed

21 Fact (“UF”) 75.3 Moreover, from 1820 to 1950, with the exception of 1840, respondents

22 were asked a question concerning citizenship or birthplace. UF 67. The Census Bureau

23

24 2 There is significant overlap in the arguments and evidence presented by the San Jose
25 Plaintiffs and the California Plaintiffs. Accordingly, certain portions of this order will treat Plaintiffs arguments jointly.
26 3 The parties have stipulated to over one hundred undisputed facts, which can be found under
27 Exhibit A to the Joint Pretrial Statement (ECF 144 in Case No. 18-cv-01865).

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1 subsequently transitioned to a mailed questionnaire, which involved sending a “short form”

2 questionnaire to most residences, and a “long form” questionnaire with significantly more

3 questions to the remaining households. UF 77-78.

4

The long form questionnaires used in 1970, 1980, 1990, and 2000 included a

5 question about citizenship status, whereas the short form questionnaires did not. UF 80.

6 After the 2000 Decennial Census, the functions performed by the long form questionnaire

7 were replaced by the American Community Survey (“ACS”). UF 83. The ACS is a yearly

8 survey of approximately 2% of households—about 3.5 million—across the United States.

9 UF 85. A question concerning citizenship status currently appears among more than 50

10 questions on the ACS questionnaire. UF 86.

11

In keeping with recent practice, the 2020 Census will be “short form only.” UF 102.

12 The ACS will continue to be distributed as usual and will continue to include a citizenship

13 question. UF 103. Per Secretary Ross’s Decision Memo, the 2020 Census will also include a

14 citizenship question. The text of this newly added question will read, “Is this person a citizen

15 of the United States?,” with the answer options “Yes, born in the United States”; “Yes, born

16 in Puerto Rico, Guam, the U.S. Virgin Islands, or Northern Marianas”; “Yes, born abroad of

17 U.S. citizen parent or parents”; “Yes, U.S. citizen by naturalization – Print year of

18 naturalization”; and “No, not a U.S. citizen.” UF 104. As in past years, the 2020 Census

19 questionnaire will also pose questions regarding sex, Hispanic origin, race, and relationship

20 status. UF 106.4

21

III. STANDING

22

A. Legal Standard

23

In order to establish standing under Article III of the Constitution, a “plaintiff must

24 have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the

25
26 4 Several entities and individuals have filed motions for leave to file amicus briefs in this matter. Although these amicus briefs do not form the basis of this opinion, each of these
27 motions is hereby granted.

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1 defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo,

2 Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555,

3 560-61 (1992)). As the party invoking federal jurisdiction, the plaintiff bears the burden of

4 establishing all three requirements by a preponderance of the evidence. Lujan, 504 U.S. at

5 561.

6

B. Findings of Fact Related to Standing5

7

1. Inclusion of the Citizenship Question on the 2020 Census Will Cause a

Differential Decline in Self-Response Rates

8 1. Undisputed evidence in this case shows that adding a citizenship question to the

9 2020 Census will cause a differential decline in self-response rates for noncitizen and

10 Hispanic households.

11 2. Defense expert Dr. John Abowd, Chief Scientist and Associate Director for

12 Research and Methodology at the Census Bureau, testified credibly that the Census Bureau

13 has produced quantitative evidence that adding a citizenship question to the 2020 Census

14 will lower self-response rates. Tr. 797:20-25 (Abowd). He specifically endorsed the Census

15 Bureau’s finding that the citizenship question will lead to a lower self-response rate in both

16 noncitizen and Hispanic households, New York Tr. 881:19-882:1 (Abowd); id. at 918:3-

17 919:1 (Abowd), and that this lower response rates will harm the quality of census data, id. at

18 882:2-5 (Abowd).6 The Plaintiff experts similarly endorsed these conclusions. See Part

19 III.B.1.e, infra.

20 a. December 22 Census Bureau Memo

21 3. The analysis that underpins Dr. Abowd’s testimony is set forth in three

22

23
24 5 Any conclusion of law that is mistakenly characterized as a finding of fact in this order may be recharacterized as a conclusion of law, and vice versa.
25 6 The parties have stipulated to the admission of Dr. Abowd’s trial testimony in the New
26 York matter, subject to Defendants’ standing objection to the consideration of evidence outside the Administrative Record in adjudicating the merits of this action. Stip. & Order re
27 Abowd Trial Transcript (ECF 172 in Case No. 18-cv-01865).

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1 memoranda issued by the Census Bureau: the December 22 Memo, PTX-148; the January 19

2 Memo, PTX-22; and the Brown, et al. Memo, PTX-160. New York Tr. 896:7-15 (Abowd);

3 Census Bureau 30(b)(6) Dep. Vol. II 353:2-6, 353:19-21.

4

4. The December 22, 2017 Memo was authored by senior professional staff at the

5 Census Bureau (nicknamed the “SWAT Team”). They found that, based on a comparison of

6 self-response rates to the 2010 Census and the 2010 ACS (which included a citizenship

7 question), noncitizen households were 5.1 percent less likely than all-citizen households to

8 respond to a survey with a citizenship question. PTX-103 at 6-7; PTX-148 at 6-7. This

9 finding is “consistent with citizenship questions being more sensitive for households with

10 noncitizens.” PTX-103 at 7; PTX-148 at 7.

11

b. Dr. Abowd’s January 19 Memo

12

5. Dr. Abowd’s January 19, 2018 Memo conveyed the 5.1 percent differential self-

13 response estimate to Secretary Ross. PTX-22 at 4.

14

6. This finding was the result of just one of the “[t]hree distinct analyses” in the

15 January 19 Memo that “support the conclusion of an adverse impact on self-response and, as

16 a result, on the accuracy and quality of the 2020 Census.” Id. The other two analyses focused

17 on indicators that suggest that Hispanic households are disproportionately less likely to

18 respond to a survey with a citizenship question.

19

7. The first of these anlyses focused on the item nonresponse rates—the rate at

20 which respondents do not answer a particular survey question. New York Tr. 905:10-24

21 (Abowd). The Census Bureau found that item nonresponse rates for the citizenship question

22 on the ACS were more than twice as high for Hispanics as for non-Hispanic whites from

23 2013 through 2016, and that the nonresponse rate for Hispanics increased by 2.5 percent

24 relative to non-Hispanic whites over that span. PTX-22 at 4; see also New York Tr. 906:12-

25 908:6 (Abowd); Tr. 156:4-157:19 (O’Muircheartaigh).

26

8. The second analysis considered breakoff rates—the rate at which respondents stop

27 completing a survey when presented with a particular question. New York Tr. 913:13-24

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1 (Abowd). It found that the breakoff rate for the citizenship question on the 2016 ACS was

2 more than eight times higher for Hispanics than for non-Hispanic whites. PTX-22 at 5; see

3 also New York Tr. 914:5-8 (Abowd); Tr. 158:4-21 (O’Muircheartaigh). Similarly, the

4 breakoff rate for three related questions on immigration status (citizenship, place of birth,

5 and year of entry) on the 2016 ACS was more than three times higher for Hispanics than for

6 non-Hispanic whites. PTX-22 at 5; see also New York Tr. 915:9-13 (Abowd).

7

9. Based on the Census Bureau’s analysis of item nonresponse rates and breakoff

8 rates, Dr. Abowd testified credibly that a citizenship question would be sensitive for

9 Hispanics, and that the sensitivity of the question is increasing for Hispanics (but not for

10 non-Hispanic whites). New York Tr. 917:4-918:2 (Abowd).

11

c. Brown, et al. Memo

12

10. The Brown, et al. Memo builds upon and updates the analysis in Dr. Abowd’s

13 January 19 Memo. New York Tr. 896:7-12 (Abowd). This memo represents the Census

14 Bureau’s best analysis of the consequences of adding a citizenship question to the 2020

15 Census. Census Bureau 30(b)(6) Dep. Vol. II 355:15-356:15; New York Tr. 897:4-15

16 (Abowd).

17

11. The Brown, et al. Memo summarized its findings as follows:

18

This paper’s examination of several Census Bureau surveys with and without

19

citizenship questions suggests that households that may contain noncitizens are more sensitive to the inclusion of citizenship in the questionnaire than all-

20

citizen households. The implication is that adding a citizenship question to the

2020 Census would lead to lower self-response rates in households potentially

21

containing noncitizens, resulting in more nonresponse follow-up (NRFU)

fieldwork, more proxy responses, and a lower-quality population count. 22

23 PTX-160 at 54.

24

12. The memo presented data showing that citizenship-related questions are more

25 sensitive for Hispanics and that, because Hispanics have higher rates of nonresponse for

26 citizenship than for sex or age, they could be disproportionately impacted by adding a

27 citizenship question to the 2020 Census questionnaire. PTX-160 at 7-10.

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1

13. The Census Bureau also updated the estimated 5.1 percent differential decline in

2 the self-response rate of noncitizen households to 5.8 percent. PTX-160 at 39; Census

3 Bureau 30(b)(6) Dep. Vol. II 372:2-12; New York Tr. 897:16-20 (Abowd); Tr. 161:13-21

4 (O’Muircheartaigh). This revised estimate is the result of a natural experiment that compared

5 response rates on the 2016 ACS, which included a citizenship question, to response rates on

6 the 2010 Census, which did not incorporate a citizenship question, and then compared the

7 change in response rates between all-citizen households and all other households (i.e.,

8 households that contain or may contain one or more noncitizens). PTX-160 at 33-34; Census

9 Bureau 30(b)(6) Dep. Vol. II 373:9-15, 374:10-16; New York Tr. 898:2-899:6 (Abowd); Tr.

10 161:22-164:17 (O’Muircheartaigh).

11

14. The 5.8 percent figure represents the Census Bureau’s best conservative estimate

12 of the differential effect of the citizenship question on noncitizen household self-response.

13 New York Tr. 894:17-895:2, 897:9-12 (Abowd).

14

15. The Brown, et al. Memo emphasized that the 5.8 percent estimate is

15 “conservative.” PTX-160 at 39; New York Tr. 900:21-25 (Abowd); Tr. 164:21-24

16 (O’Muircheartaigh). The Bureau acknowledged that this figure may underestimate the

17 impact of the citizenship question on census self-response rates for two reasons: (1) the

18 question will be more prominent on the 2020 Census questionnaire, which has just ten other

19 questions, than it was on the ACS questionnaire, which has 75 questions, PTX-160 at 39;

20 New York Tr. 901:22-902:10 (Abowd); Tr. 164:25-165:14 (O’Muircheartaigh), and (2)

21 given “the level of concern about using citizenship data for enforcement purposes,” the

22 macro-environment at the time of the 2020 Census may be worse than it was when the ACS

23 data were collected, PTX-160 at 39; see also New York Tr. 902:11-24 (Abowd); Tr. 165:15-

24 21 (O’Muircheartaigh).

25

16. The 5.8 percent estimate is also conservative because of limitations in the design

26 of the natural experiment. For example, the natural experiment assumed that individuals

27 whose citizenship information was missing from administrative records were citizens, which

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1 had the effect of reducing the estimated difference between the response rates of all-citizen

2 households and noncitizen households. Tr. 165:25-166:15 (O’Muircheartaigh).

3

17. The Brown, et al. Memo also confirmed the findings in Dr. Abowd’s January 19

4 Memo showing that (1) Hispanics were more than twice as likely as non-Hispanic whites to

5 skip the citizenship question on the ACS and that the differential in such item nonresponse

6 rates increased between 2013 and 2016, and (2) the breakoff rate for the citizenship question

7 on the 2016 ACS was more than eight times higher for Hispanics than for non-Hispanic

8 whites. PTX-160 at 8-11. Based on this data, the Census Bureau concluded that Hispanics

9 are more sensitive to survey questions about citizenship than they were a few years ago but

10 that non-Hispanic whites are not. Census Bureau 30(b)(6) Dep. Vol. II 369:1-19. This

11 suggests that nonresponse rates to the citizenship question on the 2020 Census will be higher

12 for Hispanics than for non-Hispanic whites. New York Tr. 910:7-13, 914:9-12 (Abowd).

13

18. Recent Census Bureau data show that the differential breakoff is escalating.

14 After the January 19 Memo and the Brown, et al. Memo were issued, the Census Bureau

15 made the 2017 ACS breakoff data publicly available. New York Tr. 915:19-916:3 (Abowd).

16 That data, which was reviewed by the SWAT team, showed that the breakoff rate for the

17 citizenship question on the 2017 ACS is now twelve times higher for Hispanics than for non-

18 Hispanic whites. New York Tr. 916:4-917:3 (Abowd).

19

d. CSM Memo and CBAMS Results

20

19. Recent Census Bureau qualitative research suggests that the citizenship question

21 will cause an even greater differential decline in self-response rates than estimated by

22 Brown, et al. The macro-environment, particularly the political environment around

23 immigration, has the potential to amplify the negative effect of the citizenship question on

24 self-response rates. New York Tr. 926:21-927:10 (Abowd).

25

20. This research includes the Census Bureau’s Center for Survey Measurement

26 (“CSM”) focus group testing in 2017, which revealed increased concern among immigrants

27 about the confidentiality of their survey responses, PTX-157 at 1, and the Census Barriers,

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1 Attitudes, and Motivators Study (CBAMS) conducted in 2018, which revealed concerns

2 among Spanish language respondents about the citizenship question, PTX-153 at 21-22.

3

i. CSM Findings

4

21. CSM researchers summarized the respondent confidentiality concerns they

5 observed in a September 20, 2017 memo for the Associate Directorate for Research and

6 Methodology at the Census Bureau, PTX-157, and in presentations of their findings to the

7 American Association of Public Opinion Research (AAPOR), PTX-158, and to the National

8 Advisory Committee on Racial, Ethnic, and Other Populations, PTX-326.

9

22. During the pretesting studies conducted in 2017, CSM researchers “noticed a

10 recent increase in respondents spontaneously expressing concerns about confidentiality” and

11 “reported that respondents’ fears, particularly among immigrant respondents, have increased

12 markedly this year.” PTX-157 at 1.

13

23. For example, CSM researchers observed Spanish-speaking respondents who

14 were “uncomfortable ‘registering’ other household members,” who “left three or four

15 roomers off the roster” and “mentioned being worried because of their ‘[immigration]

16 status,’” and who stated that “the Latino community will not sign up because they will think

17 that Census will pass their information on and people can come looking for them.” Id. at 2.

18

24. CSM researchers observed that “this level of deliberate falsification of the

19 household roster, and spontaneous mention of concerns regarding negative attitudes toward

20 immigrants, is largely unprecedented in the usability interviews that CSM has been

21 conducting since 2014 in preparation for the 2020 Census.” Id. at 3. CSM researchers

22 worried that the concerns expressed by immigrant respondents might be “even more

23 pronounced” during the 2020 Census, because respondents are generally more willing to

24 participate in pretesting surveys “given that they are being paid a cash incentive for their

25 participation and [are] being interviewed by a researcher with whom they have established

26 rapport.” Id.

27

25. During focus group testing, respondents similarly expressed “fear of

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1 deportation[] [and] concern about how the data are used[] and which agencies can see it,”

2 specifically asking whether the Department of Homeland Security (“DHS”) or Immigration

3 and Customs Enforcement (“ICE”) would have access to their data. PTX-326 at 9.

4

ii. CBAMS Findings

5

26. The CBAMS is a survey of 50,000 households in a series of 42 focus groups

6 designed to inform the integrated partnership and communications program for the 2020

7 Census about the macro-environment. Census Bureau 30(b)(6) Dep. Vol. II 437:17-438:6;

8 New York Tr. 927:22-928:6 (Abowd). The Census Bureau finds CBAMS research

9 sufficiently reliable to provide actionable information for the integrated partnership and

10 communications program. Census Bureau 30(b)(6) Dep. Vol. II 438:7-11.

11

27. After Secretary Ross announced that the 2020 Census would include a

12 citizenship question, Census Bureau researchers began asking for feedback about the

13 question from 30 of the 42 focus groups, including Spanish-language groups. PTX-161 at 6;

14 see also New York Tr. 930:16-19 (Abowd).

15

28. The CBAMS found that in the Spanish-language (U.S. Mainland) focus groups,

16 the citizenship question was a “determining factor for participation.” PTX-153 at 22.

17 Although most participants said that they were not afraid to answer the citizenship question

18 because they are citizens or legal residents, they knew many others who would not

19 participate in the 2020 Census “out of fear.” Id. While all participants wanted to participate

20 in the 2020 Census, “fear of deportation outweighs any benefit.” Id.

21

29. The Census Bureau views the results of the Spanish-language focus groups with

22 respect to the citizenship question as “extremely problematic.” Census Bureau 30(b)(6) Dep.

23 Vol. II 450:16-451:1; New York Tr. 934:8-12 (Abowd). Other immigrant and non-white

24 groups raised similar concerns. New York Tr. 930:9-24, 938:22-939:17, 940:4-941:14

25 (Abowd).

26

30. Census Bureau researchers ultimately concluded that “[t]he citizenship question

27 may be a major barrier” to participation in the 2020 Census because respondents, including

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1 citizens and legal residents, believed that the census’s purpose “is to find undocumented

2 immigrants” and because “[t]he political discourse is targeting their ethnic group.” PTX-465

3 at 43.

4

31. The CBAMS results suggest that the citizenship question is sensitive in the

5 current macro-environment and is a “major concern” for the Census Bureau’s efforts to

6 encourage participation in the 2020 Census within Hispanic communities. New York Tr.

7 944:7-24 (Abowd). Moreover, the increased sensitivity to the citizenship question that was

8 observed in the 2018 CBAMS results was likely not captured in Brown, et al.’s 5.8 percent

9 estimate, which was based on 2016 data. Id. at 944:25-945:4 (Abowd).

10

e. The Plaintiff Experts’ Testimony

11

32. The Plaintiff experts’ testimony further supports the conclusion that the

12 citizenship question will cause a greater differential decline in self-response rates than

13 estimated by Brown, et al.

14

33. Dr. Colm O’Muircheartaigh, professor in the Harris School of Public Policy and

15 senior fellow at the National Opinion Research Center (NORC) at the University of Chicago,
16 testified that he agrees with the Census Bureau research discussed above. Tr. 33:4-17;
17 145:15-166:15 (O’Muircheartaigh). Dr. O’Muircheartaigh also cited additional factors that 18 will exacerbate the effects of the differential decline in self-response rates caused by the
citizenship question on the ultimate enumeration. Id. at 166:16-174:20 (O’Muircheartaigh). 19
34. First, missing units in the Census Bureau’s Master Address File (MAF) contain a 20
disproportionate number of immigrant and noncitizen households. Tr. 166:21-25 21
(O’Muircheartaigh). The MAF is the “first building block” of census data collection. Id. at 22
122:4-6. The MAF is constantly updated throughout the census-taking process. Tr. 803:2323
805.7 (Abowd). In general, the census is unlikely to count persons whose households do not 24
appear on the MAF. Id. at 46:1-6 (O’Muircheartaigh). Dr. O’Muircheartaigh testified that 25
social science research, including recent research on Mexican immigrants, has observed that 26
the Census Bureau has particular difficulty identifying household addresses for immigrants 27

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1 and noncitizens. Id. at 122:7-123:13, 124:7-17 (O’Muircheartaigh). To the extent that

2 immigrant and noncitizen households are not identified by the Census Bureau and included

3 in the MAF, and the residents of these households choose not to come forward to be counted

4 because of the citizenship question, such households and their residents will not be included

5 in the 2020 Census despite the Census Bureau’s NRFU efforts. Id. at 166:21-167:14

6 (O’Muircheartaigh).

7

35. Second, respondents, especially those that live in households containing

8 noncitizens, may omit certain household members on the census questionnaire because of

9 fears generated by the citizenship question. Id. at 167:15-20 (O’Muircheartaigh). In

10 particular, the 2017 CSM research observed that Spanish-speaking respondents were

11 reluctant to provide a complete roster of household members. Id. at 147:18-148:16

12 (O’Muircheartaigh) (citing PTX-157). Dr. O’Muircheartaigh testified that such rostering

13 omissions are a particularly problematic form of nonresponse because “[t]he quality of the

14 census is fundamentally dependent on complete rostering of individuals within households,”

15 and “the census protocol has no mechanism for remediating such a response.” Id. at 147:10-

16 16, 148:8-149:9 (O’Muircheartaigh); Census Bureau 30(b)(6) Dep. Vol. II 397:19-399:2,

17 459:21-460:7.

18

36. Dr. O’Muircheartaigh credibly testified to the following conclusions relating to

19 the impact of the citizenship question on self-response: (1) current survey methodology

20 research, primarily by the Census Bureau, has observed that Latinos and immigrants hold

21 considerable fears about participating in the 2020 Census, (2) the citizenship question will

22 increase the Census Bureau’s misidentification of households as unoccupied, particularly

23 among Latinos and households with noncitizens, (3) the citizenship question will depress

24 self-response rates, particularly for Latinos and households with noncitizens, and the Census

25 Bureau’s conservative estimate is that the self-response rate for households containing a

26 noncitizen will be 5.8 percent lower than for all-citizen households, and (4) factors such as

27 rostering errors will exacerbate the difference in the effective self-response rates of

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1 noncitizens versus citizens. Tr. 175:1-19 (O’Muircheartaigh).

2

37. Dr. Matthew Barreto, a professor of political science and Chicano studies at the

3 University of California, Los Angeles, Tr. 366:13-17 (Barreto), similarly testified that

4 adding a citizenship question to the 2020 Census will reduce self-response rates, particularly

5 among immigrants and Latinos, Id. at 374:7-15 (Barreto). Dr. Barreto’s findings were based

6 on a comprehensive literature review of research publications and reports, including those

7 produced by the Census Bureau, related to response rates (as well as NRFU and imputation);

8 an original survey he fielded in which he asked people about whether they intend to

9 participate in the 2020 Census; and his expertise and years of experience implementing

10 surveys in Latino and immigrant communities. Id. at 375:18-376:4, 379:19-380:7 (Barreto)

11 (citing PTX-499).

12

38. Dr. Barreto identified three interrelated factors that affect survey participation:

13 (1) trust, (2) sensitive questions, and (3) the macro-environment in which the survey is

14 administered. Tr. 380:19-381:7, 383:13-16 (Barreto). Applying the literature on these factors

15 to the citizenship question, Dr. Barreto concluded that the citizenship question will cause a

16 significant decline in self-response rates on the 2020 Census because it is a sensitive

17 question that will exacerbate trust issues in the current macro-environment, particularly for

18 immigrants and immigrant-adjacent communities. Id. at 386:21-25, 411:5-14 (Barreto). Dr.

19 Barreto defined “immigrant-adjacent communities” as communities with mixed-status

20 households, where one family member is a U.S. citizen and another family member is not,

21 and communities in which residents would interact with immigrants daily at work, school, or

22 in other similar environments. Id. at 387:1-14 (Barreto).

23

39. A consistent finding in the social science research is that “if a potential

24 respondent does not trust the survey taker to keep their information confidential and not put

25 them at risk, then the survey respondent won’t participate in the survey at all.” Tr. 381:17-23

26 (Barreto). With regard to census participation specifically, Dr. Barreto observed that the

27 Census Bureau, particularly in Manuel de la Puente’s ethnographic studies of the 1990 and

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1 2000 Censuses, found that “immigrant and undocumented populations in particular [] don’t

2 trust the federal government to fully protect or keep in confidence their information.” Id. at

3 385:3-19, 390:12-395:7 (Barreto) (citing PTX-308 and PTX-309), see also id. at 388:11-

4 389:8 (Barreto) (citing PTX-339). To break down the barriers he observed in his studies, Dr.

5 de la Puente recommended that the Census Bureau work with community groups to assure

6 them that the Census Bureau isn’t seeking information about respondents’ citizenship status.

7 Id. at 393:25-394:15 (Barreto).

8

40. Moving on to the second factor, Dr. Barreto testified that “a sensitive question is

9 one that asks a respondent for some very personal information that they may be

10 uncomfortable revealing.” Tr. 383:2-6 (Barreto). Social science research suggests that survey

11 takers should “reduce unnecessary sensitive questions because they do create considerable

12 trust issues with respondents.” Id. at 383:10-12 (Barreto). Whether a question is sensitive

13 varies in different environments and contexts and across subpopulations. Id. at 383:13-20,

14 384:19-385:2 (Barreto). Dr. Barreto observed that the citizenship question is likely to be

15 most sensitive to “those who are closer to the immigrant experience or closer to [] immigrant

16 communities,” particularly “in the Latino community where there have been concerns over

17 immigration-related issues over the past few years.” Id. at 387:15-23 (Barreto).

18

41. The third factor, macro-environment, is “the context in which any survey is

19 being implemented,” including “the social and political environment, the atmosphere that is

20 present when the survey is being administered.” Id. at 395:11-19 (Barreto). A respondent

21 “may be more willing to participate if the context or the environment seems very agreeable

22 and welcoming, and they may be far less likely to participate if the environment seems

23 threatening or concerning.” Id. at 395:20-25 (Barreto). Dr. Barreto observed that social

24 science research has found that “[i]mmigrants and mixed-status households are likely to

25 avoid government contact when they suspect it is unsafe to participate.” Id. at 397:19-398:2

26 (Barreto). This observation holds true for a census with a citizenship question, because the

27 question will be asked in a macro-environment that is perceived by many immigrants to be

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1 “threatening or negative.” Id. at 396:3-13 (Barreto).

2

42. To evaluate participation in the 2020 Census, Dr. Barreto conducted a large

3 national survey that inquired about people’s attitudes and behaviors. Id. at 411:15-23

4 (Barreto). Within the scientific community, survey research is considered reliable and has

5 predictive value. Id. at 414:2-7 (Barreto).

6

43. Dr. Barreto conducted his survey on a sample of 6,309 respondents from across

7 the United States, including oversamples of Latinos nationwide and residents of the State of

8 California, the City of San Jose, and two border counties in Texas. Id. at 424:8-19 (Barreto).

9 Respondents were randomly chosen, and weighting was applied to balance out the

10 demographic characteristics of the sample. Id. at 415:19-418:12, 434:2-435:19 (Barreto). In

11 addition, the survey response rate—28.1 percent—was within the American Association of

12 Public Opinion Research (AAPOR) response rate guidelines (at least 20 to 30 percent) for

13 telephone surveys. Id. at 425:2-23 (Barreto).

14

44. Dr. Barreto set forth the results of his survey in a number of tables. PTX-499A,

15 PTX-863 through PTX-890. He estimates that, because of the citizenship question, census

16 response rates are likely to decline between 6.3 and 8.0 percent nationally and between 10.5

17 and 14.1 percent in the State of California. PTX-870; PTX-871; see also Tr. 457:17-458:3

18 (Barreto) (explaining PTX 870); id. at 461:9-20 (Barreto) (explaining PTX-871). The

19 nonresponse rate attributed to the citizenship question in California is statistically higher

20 than the nationwide average. Tr. 463:8-464:15 (Barreto) (explaining PTX-873).7

21

45. Based on the Census Bureau’s most current data, the average Latino household is

22 larger than the average non-Latino household. Id. at 1036:12-1037:6 (Abowd). By factoring

23 in the difference in average household size between Latino households and other households,

24
25 7 Removing California from the national self-response estimates reveals just how severe the differential decline in self-response rates are likely to be in California relative the rest of the
26 country. Dr. Barreto estimates that the decline in self-response rates in the rest of the country, excluding California, is likely to be 6.5 percent, as compared to an estimated
27 decline of 12.3 percent in California. PTX-871.

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1 Dr. Barreto estimated that Latinos would constitute approximately 35 percent (over 10

2 million) of the total number of persons (approximately 28 million) that would not self-

3 respond to the 2020 Census because of the citizenship question, far surpassing the rate of

4 Latinos in the national population (18 percent). Id. at 478:1-481:6 (Barreto) (explaining

5 PTX-880 and PTX-881). This evidence further supports the conclusion that Latinos will be

6 disproportionately affected by the citizenship question. Id. at 480:9-14 (Barreto).

7

46. Although Dr. Barreto’s study provides credible evidence that the inclusion of the

8 citizenship question on the 2020 Census is likely to cause a decline in self-response rates

9 among certain demographic groups relative to the rest of the population, some aspects of the

10 survey design and methodology limit the weight the Court affords to this evidence. In

11 particular, Dr. Barreto asks in Question 2 whether respondents would participate in the 2020

12 census if the federal government were to include a citizenship question on the questionnaire.

13 Tr. 576:4-13.8 By contrast, Question 1 specifically referred to the Census Bureau as the

14 agency responsible for the census and asked respondents, without mentioning the citizenship

15 question, whether they would participate in the 2020 census. Id. at 440:13-441:2.9 It is

16 plausible that respondents who are more distrustful of the federal government writ large than

17 they are of the Census Bureau in particular may have responded negatively to Question 2 in

18 part because of this difference in terminology. While this hardly represents a glaring flaw, it

19 does diminish somewhat the weight to be afforded to the drop in willingness to respond

20

21 8 Question 2 of Dr. Barreto’s survey reads: “In 2020, the federal government is adding a new

22

question to require you to list whether you, and every person in your household is a U.S. citizen, or not a citizen. With the addition of a citizenship question, will you participate and

23 submit your household information, or not?” Tr. 441:4-11 (Barreto). 9 Question 1 read: “The Census is an official population count that is conducted every 10

24 years by the federal government. It requires all households to list the name, age, and race or ethnicity of every person living in the home and provide that information to the Census

25 Bureau either online, by mail, or in-person with a census taker. The Census is required to keep this information confidential, and every single household in the country is required to

26 participate. In March 2020 you will receive an invitation from the U.S. Census to fill out the census form. Do you plan to participate and submit your household information?” Tr.

27 440:13-441:2.

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1 between Question 1 and Question 2.

2

47. Defendants’ remaining arguments that the decline in self-response rates between

3 Question 1 and Question 2 should not be credited are unpersuasive. In particular, the fact that

4 a randomized controlled trial (“RCT”) may produce more accurate results than a survey does

5 not automatically render Dr. Barreto’s survey unreliable. See Tr. 874:10-19.

6

48. Ultimately, respondents’ increased reluctance to participate in the census

7 between Question 1 and Question 2 of Dr. Barreto’s survey provides credible evidence that

8 the addition of the citizenship question is likely to result in a significant decline in self-

9 response rates in California and within the Latino population relative to the public at large.

10

2. NRFU Will Not Remediate the Differential Decline in Self-Response Rates

11

49. In keeping with recent practice, the Census Bureau will implement a series of

12 NRFU operations to attempt to count the significant number of persons who do not self-

13 respond to the 2020 Census, UF 39-47, including the millions who will not self-respond

14 because of the citizenship question, PTX-22 at 6; PTX-160 at 42; New York Tr. 894:1-16

15 (Abowd). All available evidence indicates that at every NRFU stage, including the

16 imputation phase, the Census Bureau will be differentially less effective at counting

17 noncitizens and Latinos—the very subpopulations most likely not to respond to the 2020

18 Census because of the citizenship question. Tr. 175:20-218:6 (O’Muircheartaigh).

19

a. Hard-to-Count Populations

20

50. The Census Bureau has always struggled to count hard-to-count subpopulations,

21 including noncitizens and Latinos, even when the census count for the national population

22 has been fairly accurate. Tr. 57:17-60:8 (O’Muircheartaigh). For example, as measured in

23 the Census Bureau’s post-enumeration surveys, Hispanics have been differentially

24 undercounted compared to non-Hispanic whites in each of the last three censuses. Id. at

25 55:2-15, 56:11-57:5 (O’Muircheartaigh); UF 61-62. In the 2010 Census, Hispanics were

26 undercounted by 1.54 percent and non-Hispanic whites were overcounted by .84 percent,

27 resulting in a net differential undercount of Hispanics of 2.38 percent. Tr. 56:11-24; PTX-

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1 211 at 18. In the 2000 Census, Hispanics were undercounted by .71 percent and non-

2 Hispanic whites were overcounted by 1.13 percent, resulting in a net differential undercount

3 of Hispanics of 1.84 percent. PTX-211 at 18. In the 1990 Census, Hispanics were

4 undercounted by 4.99 percent and non-Hispanic whites were undercounted by .68 percent,

5 resulting in a net differential undercount of Hispanics of 4.31 percent. Id.

6

51. Hard-to-count subgroups include low-income persons, persons who do not live

7 in traditional housing, persons who do not speak English fluently or have limited English

8 proficiency, persons who have distrust in the government, racial and ethnic minorities,

9 renters, undocumented immigrants or recent immigrants, and young children. Tr. 1021:19-

10 1023:2 (Abowd); UF 59-60. Census Bureau research shows that there is “substantial

11 overlap” between these hard-to count subgroups and those households most likely not to

12 respond to the 2020 Census because of the citizenship question. Tr. 1023:3-7 (Abowd).

13

52. The Census Bureau has identified four primary obstacles to counting hard-to-

14 count subpopulations: that they are hard to locate, hard to contact, hard to persuade, and hard

15 to interview. Id. at 1023:8-24 (Abowd). For some hard-to-count subgroups, more than one of

16 these obstacles applies. Id. at 1024:7-13 (Abowd). Census Bureau research acknowledges

17 that these obstacles apply to those households most likely not to respond to the 2020 Census

18 because of the citizenship question. Id. at 1023:25-1024:6 (Abowd).

19

b. The Census Bureau’s Partnership and Communications Program

20

53. The Census Bureau has developed a range of strategies to address the net

21 differential undercount of “hard-to-count” populations—including targeted marketing and

22 outreach efforts, partnerships with community organizations, deployment of field staff to

23 follow up with individuals who do not respond, and retention of staff with foreign language

24 skills. UF 64.

25

54. In the 2000 and 2010 Censuses, the Census Bureau designed and implemented

26 public advertising campaigns to reach hard-to-count immigrant communities, including

27 using paid media in over a dozen different languages to improve responsiveness, and

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1 partnered with local businesses, faith-based groups, community organizations, elected

2 officials, and ethnic organizations to reach these communities and improve the accuracy of

3 the count. UF 65-66.

4

55. Defendants believe that a similar integrated partnership and communications

5 campaign, in tandem with the Census Bureau’s NRFU efforts, may mitigate the decline in

6 self-response rates in the 2020 Census. Tr. 798:6-12, 799:21-800:14 (Abowd). Yet there is

7 no evidence in the Administrative Record that Defendants’ planned integrated partnership

8 and communications campaign for the 2020 Census will significantly mitigate such a

9 differential decline in self-response rates. Dr. Abowd agreed that it is “highly unlikely” that

10 the integrated partnership and communications campaign can eliminate the negative effects

11 of adding a citizenship question. Id. at 980:3-11 (Abowd).

12

56. The Census Bureau also acknowledges that the “trusted partners” that it relies on

13 to convey the importance of participating in the census will have additional challenges

14 communicating that message if the 2020 Census includes the citizenship question. Census

15 Bureau 30(b)(6) Dep. Vol. II 451:21-452:4, 453:2-17; New York Tr. 937:16-23 (Abowd).

16 The CBAMS focus groups of Spanish-speaking respondents found that, “while there were

17 suggestions of trusted voices, there does not seem to be a single trusted voice that could

18 mitigate [respondents’] distrust of the government to uphold the promise of confidentiality.”

19 PTX-153 at 22. Dr. O’Muircheartaigh persuasively testified that this observation shows the

20 citizenship question will “reduce[] the potential impact of the positive input of constituency,

21 community, and association leaders” as these trusted voices attempt to convince their

22 constituents to participate in the 2020 Census. Tr. 153:1-154:9 (O’Muircheartaigh).

23

57. Census Bureau research has noted one messaging strategy that is reassuring to

24 Spanish-speaking respondents is to convey that “[n]one of the questions in this survey will

25 ask about immigration status” and that “[b]y law, [the respondent’s] answers cannot be

26 shared with Immigrations and Customs Enforcement.” PTX-158 at 16. Dr. Barreto similarly

27 observed that, consistent with the findings in Dr. de la Puente’s ethnographic studies, the

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1 most effective way— indeed, perhaps the “only way”—to address confidentiality concerns

2 related to the citizenship question is “to assure respondents that no citizenship information is

3 being gathered” in the 2020 Census. Tr. 500:17-501:5 (Barreto). Neither the Census Bureau

4 nor trusted partners can offer such assurances because the citizenship question will be on the

5 2020 Census, unless the Census Bureau is instructed to remove it. Tr. 1052:8-12 (Abowd).

6

58. Moreover, despite the barriers to participation in the 2020 Census associated

7 with the citizenship question, the Census Bureau has not significantly increased its spending

8 on 2020 census outreach relative to that expended in 2010. Tr. 1024:18-1025:9 (Abowd).

9

c. The Census Bureau’s NRFU Operations

10

59. The Census Bureau’s NRFU workload includes all households that do not

11 initially self-respond to the census. Tr. 851:16-852:2 (Abowd). In the 2010 Census, over 27

12 percent of the persons enumerated were in the NRFU workload. PTX-211 at 32-33

13 (subtracting from the U.S. total population (300,703,000) those persons not in any NRFU

14 universe (219,207,000) and dividing by the total population). The NRFU workload for the

15 2020 Census is expected to rise to between 34.5 and 44.5 percent of the total population.

16 PTX-1 at 172.

17

60. The Census Bureau’s best conservative estimate is that adding a citizenship

18 question to the 2020 Census will increase the NRFU workload by 2.09 million households

19 and 6.5 million persons. PTX-160 at 42.

20

61. Based on his survey data, Dr. Barreto estimated that adding a citizenship

21 question to the 2020 Census will increase the NRFU workload by at least 28 million persons,

22 and that Latinos will be disproportionately represented in that workload. PTX-880; Tr.

23 480:5-14 (Barreto).

24

62. The Bureau’s NRFU operations are designed to obtain an accurate count—and

25 thus, to prevent an undercount—at the national level. Tr. 918:11-16 (Abowd). In recent

26 censuses, however, the Bureau’s NRFU operations have been less effective at counting some

27 subpopulations than others. Tr. 178:7-23 (O’Muircheartaigh).

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1

63. Dr. Abowd testified that he is unaware of any “credible quantitative evidence”

2 that adding a citizenship question will increase the net differential undercount of any

3 subpopulation, after accounting for NRFU operations. Tr. 918:21-24 (Abowd). Dr. Abowd

4 admitted, however, that it is “highly unlikely” that the Census Bureau’s NRFU operations

5 will eliminate a differential undercount in the 2020 Census. Id. at 980:12-981:2.

6

64. The Census Bureau’s NRFU operations for the 2020 Census include in-person

7 follow-up enumeration, proxy enumeration, administrative record enumeration, and

8 imputation by other methods. UF 39-46; Tr. 176:13-177:20 (O’Muircheartaigh). The Census

9 Bureau’s NRFU operations for the 2010 Census included these same processes, with the

10 exception of administrative record enumeration, which was used only on an experimental

11 basis in 2010. Census Bureau 30(b)(6) Dep. Vol. II 400:19-401:21.

12

65. The weight of the evidence ultimately shows that these NRFU efforts are

13 unlikely to mitigate significantly the differential decline in self-response caused by the

14 citizenship question and may in fact exacerbate the problem. See Tr. 217:4-218:5

15 (O’Muircheartaigh).

16

i. In-Person Follow-Up Enumeration

17

66. The Census Bureau has repeatedly acknowledged that “[t]hose refusing to self-

18 respond due to the citizenship question are particularly likely to refuse to respond in NRFU

19 as well.” PTX-25 at 4; see also PTX-160 at 41, 42 n.59 (“Households deciding not to self-

20 respond because of the citizenship question are likely to refuse to cooperate with

21 enumerators coming to their door . . . .”).

22

67. Although in-person follow-up enumeration is typically more effective than mail

23 solicitation, “in this case for this population, the level of threat embodied by a federal agent

24 arriving at your residence to collect the information is far greater than the threat that might

25 be implied by a piece of paper [] that arrives at your residence.” Tr. 190:2-10

26 (O’Muircheartaigh).

27

68. Given these conditions, the enumeration errors that will result “may not be

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1 avoidable simply by spending more money on fieldwork. Once a household decides not to

2 cooperate, it may not be possible to obtain an accurate enumeration no matter how many

3 times an enumerator knocks on their door.” PTX-160 at 43 n.60; see also Tr. 190:20-191:21

4 (O’Muircheartaigh).

5

69. Recent data from ACS in-person follow-up enumeration efforts, specifically the

6 Computer-Assisted Personal Interviewing (CAPI) operation, underscores the challenges that

7 enumerators will face in the 2020 Census if, like the ACS, the census includes a citizenship

8 question. Census Bureau 30(b)(6) Dep. Vol. I 124:19-133:17; Tr. 178:24-185:19

9 (O’Muircheartaigh) (describing PTX-138). The data, which was collected between 2010

10 through 2016, is consistent with the notion that questions on citizenship have become more

11 sensitive since 2010. Census Bureau 30(b)(6) Dep. Vol. I 131:4-11.

12

70. The CAPI data exhibit the following trends: (1) in-person follow-up enumeration

13 has been less effective over time in all census tracts, (2) in-person follow-up enumeration has

14 been differentially less effective in census tracts with a higher proportion of households

15 containing a noncitizen, and (3) the differential between census tracts with a higher

16 proportion of households containing a noncitizen and census tracts with a lower proportion

17 of households containing a noncitizen has grown over time. Census Bureau 30(b)(6) Dep.

18 Vol. I 129:22-130:4, 131:4-18, 133:8-17, Tr. 180:17-181:3 (O’Muircheartaigh).

19

71. The most recent CAPI data—from 2016—for the half of the population with a

20 higher proportion of households containing a noncitizen indicate that in-person follow-up

21 enumeration was 86.63 percent successful. Tr. 183:21-185:9 (O’Muircheartaigh). This rate

22 “is an approximate representation of how . . . such households might behave in the context of

23 the census.” Id. at 185:10-19 (O’Muircheartaigh). Indeed, the success rate was lower (and

24 conversely, the non-interview rate was higher) for in-person follow-up enumeration in the

25 2016 End-to-End Test and the 2018 End-to-End Test. Id. at 186:19-187:14 (describing PTX-

26 482 at 26).

27

72. None of the testing that has been used to plan NRFU staffing levels, the number

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1 of field offices, enumerator training, NRFU protocols, or census questionnaire assistance has

2 accounted for a citizenship question on the 2020 Census. Census Bureau 30(b)(6) Dep. Vol.

3 I 198:2-10, 200:9-201:10. Although the Census Bureau’s NRFU operations were used in the

4 2018 End-to End Test, Tr. 819:15-820:9 (Abowd), it did not include a citizenship question,

5 Census Bureau 30(b)(6) Dep. Vol. I 225:13-16; Tr. 820:14-15 (Abowd).

6

73. The Census Bureau considers the NRFU operations to have been a success in the

7 2018 End-to-End Test. Tr. 820:19-23 (Abowd). But a U.S. Government Accountability

8 (“GAO”) report on NRFU implementation in connection with that test “raises some serious

9 concerns.” Tr. 98:3-8 (O’Muircheartaigh) (describing PTX-482).

10

74. That the Census Bureau did not determine the procedures for late-NRFU data

11 collection until after it started work, for example, “seriously undermines the potential of the

12 activity to be successful.” Id. at 98:9-99:7. (O’Muircheartaigh) (describing PTX-482 at 11).

13 This finding, in combination with similar findings that the field workforce was unprepared

14 for certain enumeration challenges, id. at 99:8-100:15 (O’Muircheartaigh), and lacked

15 adequate training, id. at 186:9-18 (O’Muircheartaigh) (describing PTX-482), led Dr.

16 O’Muircheartaigh to conclude that the report was “a little disturbing.” Id. at 101:9-12

17 (O’Muircheartaigh). These findings “cast[] doubt on . . . any projections that the Census

18 Bureau has about how successfully it will operate in 2020, compared, for example, to 2010.”

19 Id. at 101:16-102:4 (O’Muircheartaigh).

20

ii. Proxy Enumeration

21

75. Locating a proxy respondent—a neighbor, landlord, postal worker, or other

22 knowledgeable person who will provide information about another household—is generally

23 not easy. Tr. 195:2-10 (O’Muircheartaigh). The Census Bureau expects that, just as with in-

24 person follow-up enumeration, in census tracts with a higher proportion of households

25 containing a noncitizen, the proxy enumeration rate will be lower than in other tracts. Census

26 Bureau 30(b)(6) Dep. Vol. II 386:2-15; Tr. 196:25-197:6 (O’Muircheartaigh).

27

76. In other words, the challenge of finding willing proxy respondents will be greater

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1 in neighborhoods with households that are “fearful of the Administration and fearful of

2 Census.” Tr. 195:13-25 (O’Muircheartaigh). Potential proxy respondents will be “less likely

3 to want to cooperate” if they are concerned about reporting undocumented immigrants. Id. at

4 521:15-522:2 (Barreto). Given that “reference persons are much less likely to answer the

5 citizenship question for nonrelatives in the household than for themselves . . . they may be

6 even less likely to answer it for neighbors.” PTX-160 at 43; Census Bureau 30(b)(6) Dep.

7 Vol. II 386:16-387:10; Tr. 523:3-17 (Barreto).

8

77. Even if located and willing to provide a response, proxy respondents generally

9 provide lower quality enumeration data than self-responses. Census Bureau 30(b)(6) Vol. II

10 382:17-21; PTX-22 at 6; Tr. 931:14-24, 951:11-14 (Abowd). For example, in the 2010

11 Census, 97.3 percent of self-responses resulted in a correct enumeration, but the correct

12 enumeration rate for proxy responses was just 70.2 percent. PTX-160 at 42 (citing PTX-211

13 at 33); Tr. 197:14-198:5 (O’Muircheartaigh).

14

78. Proxy responses are particularly inaccurate for persons in tenuous residential

15 arrangements—a subpopulation that is disproportionately made up of Latinos and

16 immigrants. Tr. 198:6-200:4 (O’Muircheartaigh). Because of the nature of these living

17 arrangements—which include, for example, converted garages—proxy respondents “may

18 not actually know how many people live there.” Id. at 522:3-8 (Barreto).

19

79. Census Bureau research has also found that “proxies supply poor quality

20 individual demographic and socioeconomic information about the person on behalf of whom

21 they are responding.” PTX-160 at 41-42; Tr. 200:23-201:8 (O’Muircheartaigh); id. at 937:6-

22 19 (Abowd). Dr. Abowd conceded that the increased use of proxy responses “does impact

23 data quality,” including the quality of characteristic data. Id. at 887:13-24 (Abowd).

24

iii. Administrative Record Enumeration

25

80. Census Bureau research has observed that the quality of administrative records

26 varies depending on the subpopulation. Tr. 204:18-205:3 (O’Muircheartiagh) (describing

27 PTX-288). More specifically, the Bureau is less likely to be able to use administrative

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1 records to enumerate hard-to-count subpopulations, including noncitizens and Hispanics.

2 Jarmin Dep. 285:1-286:20; Tr. 948:7-949:12 (Abowd), 205:4-12 (O’Muircheartaigh).

3 Undocumented immigrants are particularly unlikely to be found in administrative records

4 and will be harder to enumerate using such records. Census Bureau 30(b)(6) Dep. Vol. II

5 391:4-19; Tr. 205:13-17 (O’Muircheartaigh). Accordingly, the Census Bureau does not

6 expect administrative record enumeration to be as successful with noncitizens as with

7 citizens. Census Bureau 30(b)(6) Dep. Vol. II 391:21-392:4.

8

81. Similarly, the Census Bureau will be unable to link Hispanics to administrative

9 records at as high a rate as it can link non-Hispanic whites. Census Bureau 30(b)(6) Dep.

10 Vol. II 389:12-390:5.

11

82. Given the inability of the Census Bureau to use administrative records to count

12 the very subpopulations most likely not respond to the 2020 Census because of the

13 citizenship question, administrative record enumeration will not remediate the differential

14 decline in self-response rates and may indeed exacerbate any differential undercount of

15 noncitizens and Latinos. Tr. 206:4-19 (O’Muircheartaigh).

16

iv. Imputation

17

83. If the Census Bureau is unable to enumerate a household through other NRFU

18 operations, it will impute, or model, the number of persons in the household and their

19 characteristics. Tr. 942:17-20 (Abowd). In the decennial census, the Bureau uses “count

20 imputation” to impute the size of the household, and “whole-person imputation” to impute

21 both the size of the household and the characteristics of the people in the household. Id. at

22 892:10-15 (Abowd); PTX-22 at 5.

23

84. The Census Bureau concedes that whole-person imputations “are not very

24 accurate.” Census Bureau 30(b)(6) Dep. Vol. I 253:7-15.

25

85. The Census Bureau anticipates that there will be 1.477 million more whole-

26 person imputations in the 2020 Census because of the citizenship question. PTX-160 at 42-

27 43.

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1

86. The Census Bureau has not finalized the algorithms it will use for count

2 imputation in the 2020 Census. Tr. 892:16-19 (Abowd). The accuracy of the Census

3 Bureau’s imputation model “is unknown at this time.” PTX-160 at 44. The Census Bureau

4 has recognized that any attempt to use imputation to count nonresponding persons “will be

5 challenging due to the fact that nonresponse is highly correlated with citizenship.” Id.

6

87. As in previous censuses, the Census Bureau expects to use a “hot-deck”

7 imputation model that imputes missing households based on nearby households that the

8 Census Bureau has counted and believes are similar in size, location, and other

9 characteristics. Tr. 892:10-893:11 (Abowd), id at 208:19-209:12 (O’Muircheartaigh).

10

88. Because hot-deck imputation fills in missing data based on data that the Census

11 Bureau has already collected, it is not neutral; by definition, it over-represents the household

12 characteristics of the known population, in which those most likely not to respond to the

13 citizenship question—in particular, noncitizens and Latinos—are underrepresented. Id. at

14 210:14-211:6, 211:24-212:6 (O’Muircheartaigh). Dr. Abowd confirmed that hard-to-count

15 subpopulations will be imputed at a greater rate than the rest of the population. Id. at 981:8-

16 13 (Abowd).

17

89. The Census Bureau’s imputation model also fails to account for the larger

18 household size, on average, of Hispanic households compared to other households. Tr.

19 528:1-24 (Barreto), 1036:25-1037:6 (Abowd). The Census Bureau’s imputation model is

20 built on the assumption that household size is “ignorable” missing data—that it is not

21 correlated with nonresponse. Id. at 525:10-13 (Barreto). Given that those persons most likely

22 not to respond to the 2020 Census because of the citizenship question, however, tend to

23 come from larger households, household size is, in fact, “non-ignorable” data. Id. at 528:1-

24 11 (Barreto); see also Tr. 1036:12-1037:6 (Abowd) (noting that, based on the Census

25 Bureau’s most current data, the average Latino household is larger than the average non-

26 Latino household). The result is bias in the Census Bureau’s imputation model. Id. at

27 985:10-14 (Abowd), 525:20-25 (Barreto).

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1

90. Based on his survey data, Dr. Barreto presented quantitative evidence that the

2 Census Bureau’s imputation model will systematically undercount nonresponding

3 households. Id. at 529:14-530:6 (Barreto). The data reveal that, on a national level,

4 households that will not respond to a census with the citizenship question are larger, on

5 average, than households that will respond, and that in California, the gap between these

6 groups expands. Id. at 529:21-25, 530:7-9 (Barreto) (describing PTX-888 and PTX-889).

7

91. Dr. Barreto also constructed an imputation model based on the Census Bureau’s

8 2010 imputation model, as described in PTX-344, the Bureau’s J-12 memorandum. Like the

9 Census Bureau’s imputation model, Dr. Barreto’s version predicted the household size of

10 nonresponding households based on their 20 nearest neighbors, with controls for such factors

11 as housing type, geographic proximity, and household demographics. Tr. 535:3-14 (Barreto).

12 Because Dr. Barreto’s survey data contained the household size of each nonresponding

13 household, he was able to compare the imputation model’s predicted household size to the

14 actual size of these households. Id. at 535:15-19 (Barreto).

15

92. Dr. Barreto’s imputation analysis suggests that the Census Bureau’s imputation

16 model is likely to under-impute the household size of Latinos that do not respond to the 2020

17 Census because of the citizenship question at a rate of three-quarters of a person per

18 household on average, as compared to similarly-situated Latino households that will respond

19 to the census. Id. at 538:22-539:6 (Barreto) (describing PTX-468).

20

93. This evidence, suggests that imputation will not remediate the differential

21 decline in self-response rates. Id. at 540:24-541:8 (Barreto), 212:9-17 (O’Muircheartaigh). In

22 sum, the relative ineffectiveness of the Census Bureau’s NRFU operations with respect to

23 individuals who are unlikely to self-respond as a result of the citizenship question inevitably

24 leads to the conclusion that the NRFU process is unlikely significantly to mitigate the

25 disproportionate effect of the citizenship question on Latino and noncitizen households.

26

3. Inclusion of the Citizenship Question on the 2020 Census Will Result in a

Differential Undercount of Noncitizens and Latinos

27

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1

94. The weight of the evidence, both qualitative and quantitative, strongly suggests

2 that the citizenship question will cause a net differential undercount of noncitizens and

3 Latinos relative to all-citizen households.

4

95. The Census Bureau concedes, based on its own natural experiment, that the

5 citizenship question will cause the self-response rate of noncitizen households to decline at

6 least 5.8 percent. Part III.B.1.c, supra. The Census Bureau has also produced considerable

7 qualitative research suggesting that the citizenship question will cause an even larger

8 differential decline in the self-response rate of noncitizen households, and that these negative

9 effects of the citizenship question will extend to other subpopulations, such as Hispanics.

10 Part III.B.1.d, supra.

11

96. Dr. Barreto produced quantitative evidence that is consistent with the Census

12 Bureau’s research. Dr. Barreto’s survey results further suggest that the citizenship question

13 will cause a decline in the self-response rate in California that will be greater than the decline

14 in the nation as a whole. Part III.B.1.e, supra.

15

97. In all recent censuses, the Census Bureau has differentially undercounted hard-to

16 count subpopulations, most notably Hispanics, even after implementing all NRFU

17 operations. Part III.B.2.a, supra.

18

98. The persons most likely not to self-respond to the citizenship question are also

19 some of the most unlikely to be counted at every NRFU stage—in-person follow-up

20 enumeration, proxy enumeration, administrative record enumeration, and imputation by

21 other methods. Part III.B.2.c, supra.

22

99. In addition, the Census Bureau’s NRFU operations are not designed to count

23 persons that are missing from the MAF or are left off the roster by a family member or proxy

24 respondent. Part III.B.1.e, supra. If such persons do not self-respond to the 2020 Census

25 because of the citizenship question, they will not be counted. Moreover, noncitizens and

26 immigrants, particularly Mexican immigrants, are more likely to live in housing that is

27 missing from the MAF. Part III.E.1.b.

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1

100. In sum, it is more likely than not that the citizenship question will cause a

2 substantial net differential undercount of noncitizens and Latinos.

3

4. The Citizenship Question Will Harm Data Quality

4

101. Harm to the quality of census data is something the Census Bureau “tr[ies] to

5 avoid.” New York Tr. 953:18-20 (Abowd). It is undisputed, however, that the citizenship

6 question will damage the quality of characteristic data collected through the 2020 Census,

7 separate and apart from the damage to the count. These characteristics include gender, age,

8 race, and ethnicity. Tr. 1001:17-24 (Abowd). The damage to data quality will also cause

9 some people to be counted in the wrong place, including in the wrong area of a municipality,

10 or even in the wrong state. Id. at 1003:5-16 (Abowd).

11

102. In the January 19 Memo, the Census Bureau concluded that adding a

12 citizenship question to the 2020 Census will have an adverse impact on the quality of the

13 data collected by the census. PTX-22 at 4. Because the citizenship question will lower self-

14 response rates, the NRFU workload will increase, which will “degrade data quality because

15 data obtained from NRFU have greater erroneous enumeration and whole-person imputation

16 rates.” Id. at 5. One reason that data quality will suffer is that data collected during NRFU

17 are “much more likely to be collected from a proxy rather than a household member and,

18 when they do come from a household member, that person has less accurate information than

19 self-responders.” Id. at 6.

20

103. In the March 1 Memo, the Census Bureau similarly concluded that a citizenship

21 question will reduce data quality. PTX-25 at 4. The Brown, et al. Memo reached the same

22 conclusion. PTX-160 at 54. Dr. Abowd’s testimony confirms that adding the citizenship

23 question will damage the quality of the data collected in the 2020 Census. New York Tr.

24 885:17-21 (Abowd). Dr. Abowd observed that data produced by lower self-response rates is

25 less accurate than data produced by higher self-response rates. Id. at 881:19-882:5 (Abowd).

26 Likewise, data produced by self-response is much more “reliable” than data produced by

27 NRFU efforts. Id. at 953:2-14 (Abowd); Tr. 942:21-943:2 (Abowd). Therefore, by

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1 decreasing self-response rates and thus increasing reliance on NRFU efforts, the citizenship

2 question will reduce the quality and accuracy of data produced during the 2020 Census. New

3 York Tr. 881:19-882:5, 952:23-953:14 (Abowd); Tr. 934:16-935:1, 1001:17-24 (Abowd).

4

104. Dr. Abowd also acknowledged that inclusion of the citizenship question on the

5 census would result in fewer persons being linked to administrative records, New York Tr.

6 969:2-23, 979:16-20, 981- 17-19 (Abowd), which would reduce data quality, id. at 981:20-

7 25. In contrast, using administrative records to provide DOJ with block-level CVAP data

8 without adding the citizenship question to the census would not harm the quality of the

9 census data. Id. at 958:5-18 (Abowd).

10

105. Dr. O’Muircheartaigh, Dr. Barreto, and Dr. Habermann confirmed that adding a

11 citizenship question to the 2020 Census will harm the quality of the census data. Tr. 114:11-

12 15, 217:21-22 (O’Muircheartaigh); id. at 492:16-21 (Barreto); PTX-821 at ¶¶ 47-54, 68. This

13 is the consensus among scientists within and outside the Census Bureau. Tr. 114:11-15

14 (O’Muircheartaigh).

15

106. The increased degradation of data quality that results from adding a citizenship

16 question to the 2020 Census cannot be mitigated. Id. at 935:3-5, 950:6-13, 1001:25-1002:8

17 (Abowd).

18

5. Inclusion of the Citizenship Question on the Census Will Result in a Loss of

Federal Funding to Several Plaintiffs

19

a. The California Plaintiffs

20

i. The State of California

21

107. The citizenship question is more likely than not to cause the State of California

22

to lose federal funding. This is because any measurable differential undercount of

23

households containing noncitizens will cause California to lose funding for its state-share

24

programs. Reamer Decl. ¶¶ 20, 74; Tr. at 676:1-2, 677:6-14 (Reamer).

25

108. Dr. Andrew Reamer, who is an expert in the relationship between census data

26

and federal financial assistance, Reamer Decl. ¶¶ 1-8, testified that a significant portion of

27

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1 federal domestic financial assistance is distributed on the basis of statistics derived from the

2 decennial census, id. ¶ 10.

3

109. At least 320 federal domestic assistance programs used census-derived data to

4 distribute about $900 billion in FY2016. Id. ¶ 10. Of these, there are 24 large federal

5 financial assistance programs with geographic allocation formulas that rely in whole or part 6 on census‐derived data. Id. ¶¶ 10-11, Ex. D (PTX-245); Tr. 668:12-669:9 (Reamer); see also

7 UF 52-56. Eighteen of these 24 programs are “state-share” programs, in that they rely in

8 whole or in part on state share of a U.S. population total. Reamer Decl. ¶¶ 11, 17, Ex. D

9 PTX-245).10

10

110. As previously discussed, the citizenship question will cause a differential

11 undercount of persons living in households containing noncitizens. This, in turn, will lead to

12 a differential undercount of the population of states that have a disproportionate number of

13 such persons, like California. See id. ¶ 17. This will impact a number of federal domestic

14 financial assistance programs with census-tied geographic allocation formulas. Id. ¶¶ 16-18,

15 74.

16

111. Specifically, a differential undercount in the decennial census among persons

17 who live in households containing noncitizens will lead to measurable fiscal losses across

18 numerous federal programs for states with population percentages of households containing

19 noncitizens that are above the national average, including California. Id. ¶¶ 17-18.

20

112. Dr. Reamer performed calculations using two alternative projections of the

21
22 10 The 18 state-share programs include: Federal Transit Formula Grants, Community Block Development Grants/Entitlement Grants, Crime Victim Assistance, Title I Grants to Local
23 Educational Authorities (LEAs), Special Education Grants, Head Start, Supplemental Nutrition Program for Women, Infants, and Children (WIC), Child Care and Development
24 Block Grants, Supporting Effective Instruction State Grants, Workforce Innovation and Opportunity Act (WIOA) Youth Activities, Rehabilitation Services: Vocational
25 Rehabilitation Grants to the States, Unemployment Insurance administrative costs, Block Grants for Prevention and Treatment of Substance Abuse, Social Services Block Grants,
26 Career and Technical Education—Basic Grants to States, WIOA Disclosed Worker Formula Grants, Special Programs for the Aging, Title III, Part C, Nutrition Services. Reamer Decl.
27 ¶¶ 11, 17, Ex. D (PTX-245).

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1 potential undercount of households containing at least one noncitizen resulting from the

2 addition of a citizenship question, which undercount scenarios were applied to projections of

3 the 2020 population by state. Id. ¶ 14. These projections were prepared by Plaintiff expert

4 witness Dr. Bernard Fraga, id. ¶¶ 15, 35, and are discussed in greater detail in Parts III.B.6

5 and III.C.1.b, infra.

6

113. The two scenarios involve: (1) an undercount of 5.8 percent of households

7 containing at least one noncitizen, and (2) using the same starting point but assuming 86.63

8 percent of these households are ultimately counted successfully through NRFU efforts. Id.

9 ¶ 36.

10

114. Dr. Reamer calculated the specific financial impact of these projections on three

11 of the 18 state-share programs—Title I grants to local educational agencies, the

12 Supplemental Nutrition Program for Women, Infants, and Children grants, and Social

13 Services Block Grants—to illustrate certain losses that would occur in the event of a

14 differential undercount. Id. ¶¶ 17, 20, 33, 37-40, 43-48, 52-53, 57-63; Tr. 667:8-19

15 (Reamer).

16

115. Under either undercount scenario, California, among other states, would lose

17 funding annually under all three programs. Reamer Decl. ¶¶ 49-50, 54-55, 64-65, and

18 accompanying charts.

19

116. Dr. Reamer’s conclusion that a differential undercount will result in lost

20 funding extends to the other 15 state-share programs he identified, meaning that California,

21 among other states, will lose population share and thus funding under these programs if the

22 citizenship question causes an undercount of individuals living in households containing

23 noncitizens. Id. ¶ 34; Tr. 678:18-679:2 (Reamer).

24

117. Dr. Reamer also opined that the magnitude of the impact varies depending on

25 the extent of the undercount. Id. ¶¶ 15-18. A change in the amount of the differential

26 undercount would impact only the magnitude of the loss to a state-share program, not the

27 existence of a loss. Id. ¶ 20.

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1

118. Similarly, a change in the funding level or allocation formula would impact

2 only the magnitude of the loss, not the existence of a loss, so long as the allocation formula

3 retains a degree of state-share-based calculation. Id. ¶ 19; Tr. at 669:24-670:11, 675:19-22

4 (Reamer).

5

119. Therefore, because the inclusion of the citizenship question on the 2020 Census

6 is likely to result in a significant differential undercount of households containing

7 noncitizens, the State of California is more likely than not to lose funding for its state-share

8 programs. Reamer Decl. ¶¶ 20, 74; Tr. at 676:1-2, 677:6-14 (Reamer).

9

ii. LAUSD

10

120. The citizenship question will also cause the Los Angeles Unified School

11 District (“LAUSD”) to lose federal funding. The funding for certain federal assistance

12 programs is distributed among localities within the state according to formulas prescribed by

13 law. Tr. at 677:23-678:10 (Reamer). For example, Title I grants are ultimately distributed to

14 local educational agencies, and grants authorized by the Workforce Innovation and

15 Opportunity Act (WIOA) are distributed to Local Workforce Development (“LWD”) areas.

16 Reamer Decl. ¶¶ 66, 67; see also id. ¶¶ 45, 71 (WIC and Community Development Block

17 Grants); Tr. 677:15-22, 678:11-13 (Reamer) (Community Development Block Grants and

18 WIOA grants).

19

121. Where there is a differential undercount of noncitizens within the locality that is

20 a funding recipient of a state-share program relative to the national population, those

21 localities will experience a loss of federal funding. Tr. 677:23-678:10 (Reamer).

22

122. For example, LAUSD, which has a higher-than average share of households

23 containing noncitizens than the state and national population, would incur a further decrease

24 in Title I funding when the funding received by California is distributed among the local

25 educational agencies within the state. Reamer Decl. ¶ 66 n.2; Escudero Decl. ¶¶ 16, 27;

26 Ryback Decl. ¶ 33.

27

b. San Jose Plaintiffs

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1

123. Among the 18 “state share” programs discussed in paragraph 109, supra, are

2 grants authorized under WIOA, including the Youth Activities Program, 29 U.S.C. § 3163,

3 the Adult Activities program, 29 U.S.C. § 3173(b)(2)(A), and the Dislocated Workers

4 Program, 29 U.S.C. § 3173(b)(2)(B). Reamer Decl. ¶ 67; Tr. at 677:19-22; 678:11-13. Also

5 among the 18 “state share” programs are grants distributed via the Community Development

6 Block Grant (“CDBG”) Entitlement Program. Reamer Decl. ¶ 71; Tr. at 677:15-18.

7

124. Under WIOA, San Jose operates a workforce development program called

8 “work2future” that serves a LWD area composed of the cities of San Jose, Campbell,

9 Morgan Hill, Los Altos Hills, Gilroy, Los Gatos, Saratoga, and Monte Sereno, along with the

10 unincorporated areas of Santa Clara County. Melchor Aff. ¶ 2.

11

125. The cities that comprise work2future’s LWD have a combined population of

12 1,243,043 residents, of whom at least 197,663, or 16.00%, are noncitizens. Judicially

13 Noticed Facts ¶ 14.

14

126. Of the 321,004,407 residents of the United States, 22,337,765, or 6.96%, are

15 noncitizens. Judicially Noticed Facts ¶ 5.11

16

127. Of the 38,982,847 residents of California, 5,250,604, or 13.47%, are

17 noncitizens. Judicially Noticed Facts ¶ 6.

18

128. Among the funding programs that use Bureau data are programs administered

19 by the Department of Labor under WIOA, which use Bureau data as part of the allocation

20 formulas set forth in 29 U.S.C. §§ 3162(C) and § 3172(C). UF 56. WIOA provides funding

21 to work2future under a two-part formula: first funding is delivered to a state (the “State

22 Allotment”) and the State of California distributes the State Allotment among the LWD’s

23 (the “Sub-State Allotment”). Melchor Aff. ¶ 5.

24

25
26 11 A summary of judicial noticed facts pertaining to the San Jose Plaintiffs can be found at ECF 180 in Case No. 18-cv-02279. The order granting their request for judicial notice may
27 be found in ECF 176 of that same case.

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1

129. Based on his calculations regarding the three example programs, and the fact

2 that WIOA is one of the 18 “state share” programs he identified, Dr. Reamer concluded with

3 a high degree of certainty that California’s State Allotment under WIOA will be lower under

4 each of the scenarios set forth by Dr. Fraga because California’s percentage of noncitizens is

5 higher than the national average. Reamer Decl. ¶ 68.

6

130. Monique Melchor, Director of work2future, Workforce Development Board,

7 Office of Economic Development for the City of San Jose, is tasked with ensuring that the

8 program operates in compliance with federal law and regulations and to ensure that it is

9 properly funded. As part of her duties, she regularly uses the WIOA formula for calculating

10 the Sub-State Allotment for work2future’s LWD to ensure it was properly delivered.

11 Melchor Aff. ¶¶ 5, 8. Melchor uses publicly available Bureau data to make these

12 calculations, which are based on the LWD’s relative share of the total unemployed, the

13 relative share of the excess unemployed, and the local area’s share of disadvantaged adults or

14 youth. Id. ¶ 10.

15

131. Because the LWD, mainly including San Jose, has a higher percentage of

16 noncitizens than California as a whole, a differential undercount of noncitizens, according to

17 Dr. Barreto, will “be particularly severe in San Jose and other plaintiffs' jurisdictions.” Trial

18 Tr. 375:6-7; Judicially Noticed Facts ¶ 14.

19

132. If the population of the LWD (including its disadvantaged adults and

20 disadvantaged youth) is undercounted relative to the State of California, then the LWD’s

21 share of the Sub-State Allocation will decrease. Melchor Decl. ¶¶ 12-13.

22

133. Therefore, if there is a differential undercount of noncitizens in the 2020

23 Census, California will receive a lower State Share of WIOA funding, and the work2future

24 LWD, which includes San Jose, will receive a smaller proportion of the State Share in its

25 Sub-State Allocation, resulting in a double funding loss for the City of San Jose.

26

134. The CDBG program, administered by the U.S. Department of Housing and

27 Urban Development (“HUD”), provides funding to eligible “entitlement communities”

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1 including the City of San Jose. Reamer Decl. ¶ 71; Judicially Noticed Facts ¶ 16. One of the

2 programs that uses Bureau data is the Home Investment Partnership Program (“HOME”),

3 run by HUD, which uses Bureau data as part of its allocation formula under 42 U.S.C.

4 § 12747(b). UF 54.

5

135. The statutory formula for HOME grants is required to reflect “each

6 jurisdiction’s share of total need among eligible jurisdiction[s] for an increased supply of

7 affordable housing for very low-income and low-income families of different size, as

8 identified by objective measures of inadequate housing supply, substandard housing, the

9 number of low-income families in housing likely to be in need of rehabilitation, the costs of

10 producing housing, poverty, and the relative fiscal incapacity of the jurisdiction to carry out

11 housing activities eligible under section 12742 of this title without Federal assistance.

12 Allocation among units of general local government shall take into account the housing

13 needs of metropolitan cities, urban counties, and approved consortia of units of general local

14 government.” 42 U.S.C. § 12747(b)(1)(A).

15

136. One of the programs that uses Bureau data is the CDBG, run by HUD, which

16 uses Bureau data as part of its allocation formula under 42 U.S.C. § 5306(b). UF 55. This

17 program provides funds to entitlement communities according to a set of formulas prescribed

18 in law and that include data on population, poverty rates, and housing conditions. Reamer

19 Decl. ¶ 71.

20

137. The statutory formula for CDBG grants considers “the average of the ratios

21 between the population of that city and the population of all metropolitan areas; the extent of

22 poverty in that city and the extent of poverty in all metropolitan areas; and the extent of

23 housing overcrowding in that city and the extent of housing overcrowding in all metropolitan

24 areas.” 42 U.S.C. § 5306(b)(1)(A).

25

138. HUD awards the City of San Jose an annual allocation of CDBG and HOME

26 funding; the amount of this funding is directly tied to data from the Census. Clements Aff.

27 ¶ 10.

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1

139. Of San Jose’s 1,023,031 residents, 176,345, or 17.24%, are noncitizens.

2 Judicially Noticed Facts ¶ 11. Thus, San Jose’s percentage of noncitizens is nearly two-and-

3 a-half times the national percentage of 6.96%. It follows that San Jose is likely to be

4 undercounted relative to the population as a whole if the citizenship question is added to the

5 Decennial Census. Tr. 546:6-17 (Barreto).

6

140. Because CDBG is one of the 18 programs that Dr. Reamer identified as

7 sensitive to changes in population, and because Dr. Reamer concluded that any such program

8 would provide less funding to geographic areas that are undercounted relative to the

9 population as a whole, San Jose will receive less CDBG funding if is undercounted relative

10 to the nation as a whole. Reamer Decl. ¶ 18; Tr. at 677:7-14. Therefore, it is more likely than

11 not that San Jose will receive less CDBG funding if a citizenship question is added to the

12 Census.

13

141. San Jose’s Office of Emergency Management (“OEM”) also faces a substantial

14 risk of losing funding based on the addition of the citizenship question.

15

142. In his role as Director of OEM, and in prior positions, Raymond Riordan has

16 applied for funding on behalf of San Jose from the Federal Emergency Management Agency

17 (“FEMA”). Supp. Riordan Aff. ¶ 2.

18

143. When applying for funding from FEMA, Riordan completes a “Preliminary

19 Damage Assessment” in accordance with FEMA guidelines as provided in its Damage

20 Assessment Operations Manual and its Preliminary Damage Assessment for Individual

21 Assistance Operations Manual. These manuals require Riordan to supply census data for

22 areas affected by a disaster. Id. ¶¶ 4-5.

23

144. Riordan has personally worked on funding proposals to FEMA that were denied

24 because FEMA determined not enough people lived in the affected area to qualify for

25 funding. Id. ¶¶ 7-10. Because the total number of individuals affected by a disaster is a key

26 factor in most applications for disaster funding, and because Riordan provides this number

27 based on data from the Census Bureau, a net undercount of San Jose’s population will

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1 impede the City of San Jose’s ability to obtain adequate funding when the next disaster

2 occurs. Id. ¶ 14. Indeed, San Jose is in a region prone to natural disasters, including

3 earthquakes, floods, and fires. Id. ¶ 13.

4

6. Inclusion of the Citizenship Question on the 2020 Census Increases the

Likelihood that California Will Lose Political Representation

5

145. Adding a citizenship question to the 2020 Census significantly increases the

6

likelihood that California will lose at least one congressional seat. Dr. Bernard Fraga

7

credibly testified that (1) California is expected to maintain its current level of congressional

8

representation (53 seats) if the 2020 Census does not ask a citizenship question, and (2)

9

adding a citizenship question to the 2020 Census increases the probability that California

10

will, contrary to its actual population, lose a congressional seat.

11

146. To estimate the quantitative effect of adding a citizenship question to the 2020

12

Census, Dr. Fraga looked at four scenarios of nonresponse and NRFU—two based on Dr.

13

Barreto’s survey data, and two based on Census Bureau data. Id. ¶ 26. For each scenario, Dr.

14

Fraga estimated how much of each state’s population would not be counted in the 2020

15

Census because of the citizenship question. Id. ¶¶ 57, 58.

16

147. Dr. Fraga estimated that, based on Dr. Barreto’s survey data and assuming

17

NRFU will not remediate the differential in self-response rates (Scenario A), the citizenship

18

question would cause 12.51 percent of Californians not to be reported in the census self-

19

response. Id. ¶¶ 57-58.

20

148. Dr. Fraga performed the same calculation based on the Census Bureau’s

21

estimate of a decline in nonresponse by 5.8 percent for noncitizen households—again

22

assuming NRFU will not have a mitigating affect (Scenario C). Id. ¶¶ 57, 60. Based on this

23

estimate, the citizenship question would cause 1.68 percent of Californians not to be reported

24

in the census self-response. Because California has a higher proportion of noncitizens than

25

any other state, this was also the highest proportional undercount of all the states. Id. ¶¶ 57,

26

65. Using either the survey results or the Census Bureau’s estimate, California will always

27

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1 have the highest proportional undercount, as long as the Census Bureau’s follow-up efforts

2 are anything less than 100 percent effective. Id. ¶ 65.

3

149. Dr. Fraga used these different undercount estimates to quantify the impact of

4 adding a citizenship question on congressional apportionment, including the probability that

5 apportionment would be affected by the question. Id. ¶ 66. In the baseline scenario with no

6 citizenship question, California is projected to keep its current 53 seats in the House of

7 Representatives. Id. ¶ 75. Based on Dr. Barreto’s estimated self-response rates, however, Dr.

8 Fraga estimates that California is virtually certain to lose three seats if the citizenship

9 question is included in the census, assuming the NRFU process does not mitigate the effects

10 of this differential (Scenario A). Id. ¶¶ 73-74, 76.12

11

150. Dr. Fraga also concluded that, using the Census Bureau’s 5.8 percent estimate

12 of nonresponse by noncitizen households and assuming NRFU has no effect on the net

13 differential undercount, the likelihood of California losing at least one seat nearly doubles to

14 fifty percent probability (Scenario C). Id. ¶ 82. Even applying a NRFU success rate of

15 86.63%, Dr. Fraga testified that the likelihood of California losing at least one seat still

16 increases by 15 percent (Scenario D). Id. ¶¶ 48, 82. The 86.63% NRFU success rate derives

17 from Dr. O’Muircheartaigh’s report and reflects the 2016 in person follow-up response rate

18 during the 2016 ACS in census tracts with a higher than average share of noncitizen

19 households. Id. ¶ 49.

20

7. Plaintiffs Have Had to Appropriate Funds to Mitigate the Harm of the Inclusion

of the Citizenship Question on the 2020 Census

21

a. California Plaintiffs

22

i. State of California

23

151. The State of California has appropriated and will imminently spend increased

24

25
26 12 Defendants argue persuasively that the “NRFU simulation” portion of Dr. Barreto’s survey does not resemble the Census Bureau’s actual NRFU process. Accordingly, the Court
27 declines to rely on Scenario B, which was based in part on this NRFU simulation.

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1 funds on census-related community outreach due to the citizenship question. Former

2 California Governor Jerry Brown initially proposed to the California Legislature for the FY

3 2018-19 state budget an appropriation of $40.3 million “to be spent over a three-year period

4 for statewide outreach and other activities related to the 2020 Census count.” UF 111. This

5 budget proposal was made prior to Secretary Ross’ issuance of the Decision Memo

6 announcing the addition of the citizenship question. See PTX-502 at 3.

7

152. The final FY 2018-19 state budget that was enacted in the summer of 2018

8 included an appropriation of $90.3 million “to support the California Complete Count effort,

9 which was established within the Government Operations Agency to perform outreach

10 focusing on hard-to-count populations for the decennial census.” UF 112.

11

153. Early on in the budget process, before Secretary Ross issued the Decision

12 Memo, the Legislative Analyst’s Office published an analysis of the census outreach budget

13 item. PTX-502. The analysis observed that the potential introduction of a citizenship

14 question to the 2020 Census could cause an undercount. Id. at 2-5 (noting that changes to the

15 census, including “the potential for a question about citizenship[,] raise the possibility of an

16 undercount in California in 2020”).

17

154. This concern was echoed in legislative committee materials and at least one

18 committee hearing. The legislative history of the FY 2018-19 state budget shows that one of

19 the driving forces behind the increased appropriation was the citizenship question. PTX-504

20 at 140 (summary of FY 2018-19 state budget includes section devoted to census outreach to

21 hard-to-count residents, and states that “[t]he Budget includes $90.3 million for statewide

22 outreach and other efforts related to increasing the participation rate of Californians in the

23 decennial census”); PTX-505 at 1 (description of FY 2018-19 state budget line items

24 references as a “major change” the $90.3 million allocated to “support the California

25 Complete Count effort . . . to perform outreach focusing on hard-to-count populations for the

26 decennial census”); PTX-506 at 8, 76 (Legislative Analyst’s overview of FY 2018-19 state

27 budget includes section describing $90.3 million allocated for outreach activities); PTX-509

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1 at 23 (March 15, 2018 Senate Budget and Fiscal Review Subcommittee meeting staff report

2 on the California Complete Count—Census 2020 agenda item notes that concerns about

3 emphasis on Internet self-response, “in combination with the potential for a question about

4 citizenship[,] raise the possibility of an undercount in California in 2020”); PTX-510 at 41-

5 44 (April 24, 2018 Assembly Budget Subcommittee meeting staff report on 2020 Census

6 Outreach agenda item states that one change to the 2020 Census is that “[t]he federal

7 government has decided to include a citizenship question in the census, which is projected to

8 reduce the rate of response,” and identifies the citizenship question as one of the challenges

9 that would justify “additional resources” for outreach); PTX-517 at 45:19-46:12 (statement

10 by Assembly-member David Chiu at the April 24, 2018 Assembly Budget Subcommittee

11 meeting that the citizenship question presents “a different world” that may justify doubling

12 census outreach expenditures); PTX-512 at 24 (May 22, 2018 Senate Committee on Budget

13 and Fiscal Review meeting staff report on California Complete Count—Census 2020 agenda

14 item notes that “[d]ue to the significant changes to the census, providing state funding to

15 target hard-to-count populations is reasonable,” and “[d]ue to both the extreme importance of

16 an accurate census to the state and the high cost of the necessary outreach, additional funding

17 is warranted”); PTX-513 at 30-31 (May 24, 2018 Assembly Budget Subcommittee meeting

18 staff report on the 2020 Census Outreach Funding agenda item proposed $113 million

19 increase in census outreach funding, including $12 million for Los Angeles County’s

20 complete count efforts); PTX-514 at 79 (June 6, 2018 2018-19 Legislative Budget

21 Conference Committee meeting staff report on 2020 Census Outreach cites $153.3 million

22 request from Assembly and $135.3 million request from the Senate for outreach efforts);

23 PTX-515 at 173 (June 8, 2018-19 Legislative Budget Conference Committee meeting staff

24 report on 2020 Census Outreach recommends adopting compromise of $90.3 million

25 allocation for census outreach).

26

155. Since the appropriation, the California Complete Count Committee, the body in

27 charge of the outreach efforts, has submitted reports to the Governor and Legislature that

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1 underscore the challenge presented by the citizenship question to those outreach efforts.

2 PTX-508 at 4-5, 13, 19, 27-28 (October 2, 2018 report to Governor acknowledges that

3 citizenship question presents challenge to outreach efforts, describes formation of working

4 group on citizenship matters, observes that the question will generate fear, and identifies

5 possible difficulties of hiring trusted messengers); PTX-507 at 9-10 (October 1, 2018 report

6 to Legislature states that in convenings with local partners, “[p]articipants identified the most

7 significant barrier to achieving a complete count to be the Census citizenship question and

8 the current political environment regarding immigrants”).

9

156. The State’s allocation of outreach funding to the County of Los Angeles also

10 confirms increased expenditures due to the citizenship question. Baron Decl. ¶¶ 7-16. The

11 State initially allocated to the County $8.7 million in census outreach funding. Id. ¶ 7, 12. In

12 May 2018, the County requested an additional $3.3 million in funding specifically due to the

13 addition of the citizenship question on the Census. Id. ¶¶ 11-12 & Ex. A. The State met the

14 County’s request, in part. In November 2018, the State announced its County outreach

15 allocations, allocating $9,393,090 to the County of Los Angeles for 2020 Census outreach to

16 hard-to-count populations. UF 113; Baron Decl. ¶¶ 13-15.

17

b. San Jose Plaintiffs

18

i. City of San Jose

19

157. San Jose’s population has been undercounted in prior censuses and San Jose is

20 taking steps to mitigate the likely undercount of its population which will be caused by the

21 inclusion of a citizenship question on the 2020 Census. Ruster Aff. ¶¶ 4, 11-19. San Jose,

22 along with other cities, has partnered with the County of Santa Clara to form a “Complete

23 Count Committee” to encourage participation in the Census by hard-to-count communities.

24 Id. ¶ 3, 8. Such partnerships among localities are encouraged by the Bureau to ensure an

25 accurate and complete count. Tr. 799:23-800:14 (Abowd). In fact, San Jose’s preparations

26 for the Census are being conducted in concert with the Bureau’s integrated partnership and

27 communication program. Id. ¶¶ 3-5, 11.

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1

158. San Jose has dedicated approximately $300,000 in resources towards

2 performing outreach and expects to allocate approximately $300,000 more before the Census

3 is conducted. Id. ¶¶ 13, 15. San Jose has dedicated staff resources, including Jeff Ruster, the

4 Assistant Director in the Office of Economic Development, and a full-time consultant, to

5 prepare for the Census. Id. ¶¶ 3, 14, 19.

6

159. Consistent with recommendations from the Census Bureau and the Department

7 of Commerce, these preparations include targeted outreach that is being performed

8 specifically because Secretary Ross has decided to add a citizenship question to the Census.

9 Id. ¶¶ 10-11, 16; Tr. at 1017:22-1018:17 (Abowd). Indeed, Dr. Abowd agreed that the

10 addition of the citizenship question has made it reasonable for cities to increase their

11 outreach expenditures to encourage participation in the census. Tr. at 979:16-25 (Abowd).

12

160. The targeted outreach being conducted by San Jose is designed specifically to

13 mitigate the impact that adding the citizenship question to the Census will have on hard-to-

14 reach populations in San Jose. Ruster Aff. ¶¶ 16, 17. This diversion of resources to address

15 the citizenship question will limit San Jose’s ability to use its resources to boost participation

16 among other parts of the population. Id. ¶ 19.

17

161. In light of the substantial risk posed by the addition of the citizenship question,

18 it is reasonable for San Jose to spend additional time and money on the outreach to address

19 concerns about the addition of the citizenship question. Tr. at 979:16-25 (Abowd).

20

ii. BAJI

21

162. BAJI’s Executive Director, Opal Tometi has reviewed and received feedback

22 from impacted communities regarding the 2020 Census, formed coalitions with other

23 immigration groups, spoken to members of BAJI, and participated in a number of events,

24 panels, and town halls where concerns about the addition of a citizenship question to the

25 2020 Census were raised. Additionally, Tometi has worked with Black immigrant, refugee,

26 and African American communities since 2010 and is familiar with the ways in which the

27 census count affects the well-being of these communities. Tometi Aff. ¶ 3.

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1

163. To ensure that BAJI’s members are properly counted in the 2020 Census, BAJI

2 plans to conduct additional outreach to these communities to encourage them to participate

3 in the 2020 Census questionnaire. Supp. Tometi Aff. ¶ 4. BAJI has determined that, due to

4 the citizenship question, such outreach will require the expenditure of additional resources

5 including money, staff time, and operational expenses. Id. To date, BAJI has expended

6 considerable staff time educating constituents, and other community members, about the

7 addition of a citizenship question to the Census. Tometi Decl. ¶ 20 (reaffirmed in Tometi

8 Aff. ¶ 2).

9

164. Given the nature of the census taking process, BAJI is reserving the majority of

10 the expenditure it will use to address the addition of the citizenship question—resources that

11 will likely be diverted from its other essential services—for its efforts to bolster census

12 participation among its members and other underrepresented minority communities who are

13 fearful about responding to the citizenship question. Id. (reaffirmed in Tometi Aff. ¶ 2).

14 Accordingly, BAJI expects to allocate at least an additional $200,000 in the next two years

15 to addressing the addition of a citizenship question to the Census and attempting to mitigate

16 its harmful effects. Id. (reaffirmed in Tometi Aff. ¶ 2).

17

165. BAJI has taken these actions because an undercount of noncitizens would

18 disproportionately affect BAJI members in that BAJI’s membership has a high proportion of

19 immigrants who live in immigrant-rich metropolitan areas. Id. ¶¶ 9-10 (reaffirmed in Tometi

20 Aff. ¶ 2). The impact of the addition of a citizenship question to the Census, and BAJI’s

21 diversion of its resources to address the same, has therefore impaired BAJI’s ability to carry out

22 its mission of fostering racial, economic, and social equality for Black immigrants and other

23 historically underrepresented communities. Id. ¶ 19 (reaffirmed in Tometi Aff. ¶ 2).

24

C. Conclusions of Law Related to Standing

25

The California Plaintiffs and the San Jose Plaintiffs ultimately succeed in

26

27

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1 establishing standing with respect to the APA and the Enumeration Clause Claims.13 Once

2 the Court determines that at least one of the San Jose Plaintiffs and one of the California

3 Plaintiffs has standing, it need not consider the standing of the remaining parties. See

4 Leonard v. Clark, 12 F.3d 885, 888 (9th Cir. 1994) (“The general rule applicable to federal

5 court suits with multiple plaintiffs is that once [a] court determines that one of the plaintiffs

6 has standing, it need not decide the standing of the others”). Here, several plaintiffs across

7 both actions have standing.

8

1. Injury-in-Fact

9

To establish injury-in-fact, a plaintiff must demonstrate it “has sustained or is

10 immediately in danger of sustaining a direct injury” as a result of the challenged action.

11 Spokeo, 136 S. Ct. at 1552 (Thomas, J., concurring) (quoting Ex parte Levitt, 302 U.S. 633,

12 634 (1937) (per curiam)). The injury or threat of injury must be “concrete and particularized”

13 rather than conjectural or hypothetical. Lujan, 504 U.S. at 560. Thus, where standing is

14 based upon an alleged future injury, the plaintiff must demonstrate either that the harm is

15 certainly impending, or that there is a substantial risk the harm will occur. Susan B. Anthony

16 List v. Driehaus, 573 U.S. 149, 158 (2014). Injury-in-fact also exists where there is a

17 “substantial risk” that harm will occur, which prompts plaintiffs reasonably to incur costs to

18 mitigate or avoid that harm. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414 n.5 (2013).

19

“For standing purposes, a loss of even a small amount of money is ordinarily an

20 ‘injury.’” Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 983 (2017); see also Carpenters

21 Indus. Council v. Zinke, 854 F.3d 1, 5 (D.C. Cir. 2017) (“A dollar of economic harm is still

22 an injury-in-fact for standing purposes.”); Council of Ins. Agents & Brokers v. Molasky-

23

24 13 As previously explained, the San Jose Plaintiffs also advance a claim for relief under the
25 Apportionment Clause. They do not, however, adequately establish standing with respect to the Apportionment Clause Claim as they have not shown how, even were California to lose
26 congressional representation, that would impact San Jose in particular. This finding is of little practical consequence, however, given that the San Jose Plaintiffs successfully establish
27 standing with respect to the Enumeration Clause Claim.

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1 Arman, 522 F.3d 925, 932 (9th Cir. 2008) (noting that Supreme Court has found injury-in-

2 fact even where magnitude of harm was only a few dollars).

3

The evidence establishes that Plaintiffs will be injured in at least three ways. These

4 injuries include, (1) the loss of federal funding, (2) an increased risk of losing political

5 representation, and (3) the expenditure of funds for census outreach to mitigate the

6 substantial risk of harm flowing from the citizenship question.

7

a. Loss of Federal Funding

8

A plaintiff who is likely to lose federal funding due to a differential undercount of the

9 population has suffered an injury-in-fact for the purposes of Article III standing. Carey v.

10 Klutznick, 637 F.2d 834, 838 (2d Cir. 1980); City of Detroit v. Franklin, 4 F.3d 1367, 1373-

11 1375 (6th Cir. 1993) (standing established where “census undercount will result in a loss of

12 federal funds” to plaintiffs’ city). Lost federal funding, no matter the magnitude, qualifies as

13 an injury-in-fact. Czyzewski, 137 S. Ct. at 983.

14

A significant portion of federal domestic financial assistance is distributed based on

15 census-derived data, including from 24 large federal financial assistance programs with

16 geographic allocation formulas that rely in whole or in part on census-derived data. If, as

17 Plaintiffs have shown, there is any measurable differential undercount of households

18 containing noncitizens, California will lose federal funding, because California has a larger

19 proportion of noncitizens relative to other states.

20

Similarly, some federal domestic financial assistance that is based on census-derived

21 data is distributed among localities within the state. If, as Plaintiffs have shown, there is any

22 measurable differential undercount of households containing noncitizens, LAUSD and San

23 Jose will also lose federal funding, because these localities have a larger proportion of

24 noncitizens relative to other localities. Having shown a “substantial risk” that the citizenship

25 question will cause them to lose federal funding, the State of California and LAUSD (of the

26 California Plaintiffs), and the City of San Jose (of the San Jose Plaintiffs) have each

27 established injury-in-fact. See Susan B. Anthony List, 573 U.S. at 158.

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1

b. Loss of Political Representation (State of California Only)

2

A plaintiff’s “expected loss of a Representative to the United States Congress

3 undoubtedly satisfies the injury-in-fact requirement of Article III standing.” Dep’t of

4 Commerce v. U.S. House of Representatives, 525 U.S. 316, 331-332 (1999); Carey, 637 F.2d

5 at 838 (holding that a disproportionate undercount resulting in the loss of congressional

6 representation confers standing); City of New York v. U.S. Dep’t of Commerce, 713 F. Supp.

7 48, 50 (E.D.N.Y. 1989) (holding that a likely undercount of populations disproportionately

8 represented in plaintiff states conferred standing).

9

The California Plaintiffs have shown that adding a citizenship question to the 2020

10 Census will cause a differential undercount of the State of California’s population relative to

11 other states, creating a substantial risk that California will lose its fair share of political

12 representation in Congress, and by extension, the Electoral College. Even using the most

13 conservative data and assumptions (Scenario D), Dr. Fraga concluded that the addition of the

14 citizenship question would increase the likelihood by 15 percent that California will lose a

15 congressional seat. See Part III.B.6.

16

This estimate is conservative. As previously discussed, Scenario D is based on the

17 Census Bureau’s estimate that the self-response rate in noncitizen households will decline by

18 5.8 percent relative to all-citizen households. The Census Bureau has acknowledged, and the

19 Plaintiff experts agree, that this is a conservative estimate. Accordingly, it is safe to conclude

20 that the true differential decline in self-response rates will in fact be higher than 5.8 percent.

21 Furthermore, the Census Bureau’s NRFU efforts are unlikely to mitigate this differential

22 decline in self-response rates. See Part III.B.2, supra.

23

In light of the considerable evidence in the record that the Census Bureau’s NRFU

24 will be differentially less effective in counting noncitizens and Latinos and therefore will not

25 significantly mitigate the effects of the citizenship question, Dr. Fraga’s estimates under

26 Scenario C are the most probative. Under Scenario C, Dr. Fraga once again adopted the

27 Census Bureau’s conservative estimate that the differential decline in self-response rates for

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1 noncitizen households relative to all-citizen households will be 5.8 percent. Unlike Scenario

2 D, however, Scenario C relies upon the assumption that the Census Bureau’s NRFU

3 processes will not remediate the differential in self-response rate caused by the citizenship

4 question.

5

Under this scenario, the likelihood that the state will lose a congressional seat nearly

6 doubles from 26.1 percent to a 49.9 percent, creating a near 50-50 chance that California will

7 lose representation. Fraga Aff. ¶¶ 81-82. This evidence establishes that California faces a

8 substantial risk of losing at least one seat as a result of the citizenship question. Such

9 malapportionment of the State of California’s congressional representation is a “threat of

10 vote dilution” that “is ‘concrete’ and ‘actual or imminent, not conjectural or hypothetical.”

11 Dep’t of Commerce, 525 U.S. at 332 (quoting Whitmore v. Arkansas, 495 U.S. 149, 155

12 (1990).

13

c. Expenditure of Funds to Mitigate Harm

14

i. The California Plaintiffs

15

The State of California has reasonably increased its expenditures on census outreach

16 to attempt to mitigate the decline in self-response rates and the resulting differential

17 undercount of Plaintiffs’ residents caused by the citizenship question. These additional

18 expenditures, which constitute a direct injury to the State of California, are sufficient to

19 establish injury-in-fact for standing purposes. Clapper, 568 U.S. at 414 n.5 (standing may be

20 based on “reasonably incur[red] costs to mitigate or avoid” a “substantial risk” of harm);

21 Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 153-155 (2010) (finding injury-in-fact

22 where alfalfa growers increased administrative costs to minimize likelihood of potential

23 contamination of their crops from genetically-altered alfalfa plant).

24

The California Plaintiffs’ expenditures were reasonably incurred because they face a

25 substantial risk of a differential undercount of their residents. These plaintiffs have proven

26 that the citizenship question will cause them to be differentially undercounted because they

27 have a disproportionate share of noncitizens, immigrants, and Latino residents and that this

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1 differential undercount will cause them to lose federal funding and create a substantial risk

2 that the State of California will lose political representation.

3

The legislative history of California’s FY 2018-19 state budget and follow-up reports

4 to the Governor and Legislature show that the State appropriated, and the California

5 Plaintiffs are spending, additional funds on census outreach to attempt to mitigate these

6 negative impacts caused by the citizenship question. Although it is not possible to pinpoint

7 precisely how much the citizenship question drove the increase in the state budget’s census

8 outreach line item, the California Plaintiffs have shown that the Legislature’s decision to

9 boost the Governor’s initial allocation for census outreach ($40.3 million) to a higher

10 allocation in the enacted budget ($90.3 million) is due at least in part to the citizenship

11 question. UF 111-112.

12

The California Plaintiffs also provided evidence that the citizenship question

13 prompted the County of Los Angeles to request $3.3 million in additional funds to meet the

14 County’s need for funding for census outreach to the hard-to-count populations most likely

15 not to respond to the 2020 Census because of the citizenship question. The State partially

16 met this request by allocating hundreds of thousands of dollars of additional funding to the

17 County for census outreach. Because any amount of costs incurred to mitigate harm is

18 sufficient to confer standing, as long as such costs were reasonably incurred, the State of

19 California’s expenditures on census outreach constitute a direct injury to the state’s budgets

20 and resources that is sufficient to establish injury-in-fact for standing purposes.

21

ii. The San Jose Plaintiffs

22

The City of San Jose has also spent, and will continue to spend, additional money on

23 outreach specifically because Secretary Ross directed that a citizenship question be added to

24 the Census. Because there is a substantial risk that adding the citizenship question will cause

25 a net differential undercount of noncitizens, which in turn would cause San Jose to lose

26 federal funding, the City’s diversion of resources to prevent that harm is reasonable.

27 Accordingly, the City of San Jose has suffered injury-in-fact based on its additional outreach

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1 spending.

2

Because BAJI has similarly diverted resources to encourage its constituents to

3 participate in the census and to counteract the chilling effects of the citizenship question, it

4 too has suffered an injury-in-fact. An injury-in-fact exists where a nonprofit organization

5 shows “a drain on its resources from both a diversion of its resources and frustration of its

6 mission.” Fair Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002); Havens Realty

7 Corp. v. Coleman, 455 U.S. 363, 378-380 (1982).

8

BAJI’s Executive Director, Opal Tometi, testifies that BAJI has already expended

9 additional staff time and related financial resources to educate its constituents about the

10 addition of a citizenship question to the Census and encourage participation. BAJI intends to

11 spend an additional $200,000 to counteract the chilling effect of the citizenship question on

12 its members. BAJI’s membership has a high proportion of immigrants and is concentrated in

13 immigrant-rich metropolitan areas. Accordingly, an undercount of immigrant populations,

14 and any resulting loss of funding or political representation, would impair BAJI’s ability to

15 carry out its mission of fostering racial, economic, and social equality for Black immigrants and

16 other historically underrepresented communities. In sum, BAJI’s diversion of resources to

17 mitigate the negative impact of the citizenship question on its organizational mission

18 qualifies as an injury in fact.14

19

2. Traceability

20

The second standing element requires a plaintiff to demonstrate that the injury is

21 “fairly traceable to the challenged action of the defendant, and not the result of the

22 independent action of some third party not before the court.” Mendia v. Garcia, 768 F.3d

23 1009, 1012 (9th Cir. 2014) (quoting Bennett v. Spear, 520 U.S. 154, 167 (1997)). This

24

25 14 BAJI also advances two separate theories of associational standing. Hunt v. Washington
26 State Apple Advertising Com’n, 432 U.S. 333, 343 (1977) (setting for the requirements for associational standing). There is, however, no need to reach these theories in light of the
27 several bases for standing for the San Jose Plaintiffs that have already been discussed.

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1 requirement is less demanding than a proximate cause standard. Lexmark Intern., Inc. v.

2 Static Control Components, Inc., 572 U.S. 118, 134 n.6 (2014) (“Proximate causation is not

3 a requirement of Article III standing, which requires only that the plaintiff's injury be fairly

4 traceable to the defendant’s conduct.”). Indeed, “[c]ausation may be found even if there are

5 multiple links in the chain connecting the defendant’s unlawful conduct to the plaintiff’s

6 injury, and there’s no requirement that the defendant’s conduct comprise the last link in the

7 chain.” Mendia, 768 F.3d at 1012. When harm is caused by multiple actions, “what matters

8 is not the length of the chain of causation, but rather the plausibility of the links that

9 comprise the chain.” Id. at 1012-13 (quotation and citation omitted).

10

While an injury is not fairly traceable it if is “‘th[e] result [of] the independent action

11 of some third party not before the court,’ . . . that does not exclude injury produced by

12 determinative or coercive effect upon the action of someone else.” Bennett, 520 U.S. at 169

13 (emphasis in original) (quoting Lujan, 504 U.S. at 560). The key question is whether the

14 “government’s unlawful conduct is at least a substantial factor motivating the third parties’

15 actions.” Mendia, 768 F.3d at 1013 (citations and quotations omitted). Even when some

16 links in the chain of causation are illegal acts by third parties, the injury may still be “fairly

17 traceable” to the original challenged action. See Attias v. Carefirst, Inc., 865 F.3d 620, 629

18 (D.C. Cir. 2017) (harm caused by a data breach is “fairly traceable” to company’s inadequate

19 security standards even though data was stolen by third party hackers).

20

Plaintiffs have established that there will be a drop in self-response to the 2020

21 Census caused by the addition of the citizenship question. That nonrespondents have a legal

22 duty to respond to the census does not alter this conclusion because the citizenship question

23 is a “substantial factor” contributing to the nonresponse. Mendia, 768 F.3d at 1013. The

24 Bureau and its top officials have concretely affirmed the predictable impact of adding a

25 citizenship question to the 2020 Census on self-response rates. The harms Plaintiffs will

26 suffer—namely the loss of federal funding, the risk to California of losing political

27 representation, and the expenditure of resources to mitigate these harms—inevitably flow

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1 from the disproportionate undercount of particular demographic groups that is likely to result

2 from Secretary Ross’s decision to include the citizenship question on the 2020 Census.

3

Defendants argue that any differential decline in self-response rates among

4 noncitizens and Latinos is attributable to the hostile macro-environment surrounding issues

5 of immigration, and that Plaintiffs fail to show that the citizenship question in particular

6 caused this decline. Dr. Barreto testified persuasively, however, that a hostile macro-

7 environment combined with the inclusion of sensitive questions on a survey can have a

8 cumulative effect that is greater than either of these factors would have on their own. Tr.

9 386:21-25, 411:5-14 (Barreto). More to the point, both Dr. Barreto’s survey and the Census

10 Bureau’s natural experiment attempted to isolate the effect of the citizenship question within

11 the same macro-environment. Dr. Barreto’s survey asked respondents about their willingness

12 to participate in the 2020 Census both with and without the citizenship question. Tr. 568:5-

13 569:1. The Census Bureau’s natural experiment, and subsequent statistical analysis,

14 compared response rates to the 2010 Census (no citizenship question) to those of the 2010

15 ACS (which included a citizenship question). PTX-103 at 6-7; PTX-148 at 6-7. Accordingly,

16 the differential decline in response rates found in these experiments cannot be exclusively

17 attributed to the current macro-environment surrounding immigration.

18

In sum, the injuries Plaintiffs have identified are fairly traceable to the Secretary’s

19 decision to include the citizenship question in the 2020 Census.

20

3. Redressability

21

Finally, to meet the third standing requirement, Plaintiffs must show that it is likely

22 that a favorable decision will redress their injuries. Lujan, 504 U.S. at 561. 48. A plaintiff

23 need show only that “an injury” be redressed by a favorable decision. Larson v. Valente, 456

24 U.S. 228, 243 n.5 (1982) (emphasis in original). A plaintiff “need not show that a favorable

25 decision will relieve [] every injury.” Id. (emphasis in original). A favorable decision

26 vacating or enjoining the decision to add a citizenship question to the 2020 Census would

27 redress Plaintiffs’ injuries by diminishing the funds that they would need to be expended on

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1 census outreach and by ensuring that Plaintiffs do not lose federal funding or, in the case of

2 California, political representation because of the citizenship question.

3

In sum, both the San Jose Plaintiffs and the California Plaintiffs have carried the

4 burden of establishing all three of the standing requirements.

5

IV. APA CLAIM

6

A. Legal Standard

7

Under section 706 of the APA, a reviewing court must “hold unlawful and set aside

8 agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of

9 discretion, or otherwise not in accordance with law; contrary to constitutional right, power,

10 privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or short

11 of statutory right; [or] without observance of procedure required by law.” 5 U.S.C.

12 § 706(2)(A)-(D). Accordingly, the decision-making process that ultimately leads to the

13 agency action must be “logical and rational.” Allentown Mack Sales & Serv., Inc. v. NLRB,

14 522 U.S. 359, 374 (1998). Courts should be careful, however, not to substitute their own

15 judgment for that of the agency. Suffolk Cty. v. Sec’y of Interior, 562 F.2d 1368, 1383 (2d

16 Cir. 1977). Ultimately, a reviewing court may uphold agency action “only on the grounds

17 that the agency invoked when it took the action.” Michigan v. EPA, 135 S. Ct. 2699, 2710

18 (2015). Post hoc rationalizations may not be considered. American Textile Mfrs. Inst., Inc. v.

19 Donovan, 452 U.S. 490, 539 (1981).

20

B. Scope of Review

21

In evaluating an APA claim, courts “typically” limit their review to the

22 Administrative Record existing at the time of the decision. Sw Ctr. for Biological Diversity

23 v. U.S. Forest Service, 100 F.3d 1443, 1450 (9th Cir. 1996); accord Ranchers Cattlemen

24 Action Legal Fund United Stockgrowers of Am. v. U.S. Dep't of Agric., 499 F.3d 1108, 1117

25 (9th Cir. 2007). “Under limited circumstances, however, extra-record evidence can be

26 admitted and considered.” Ranchers Cattlemen, 499 F.3d at 1117. These exceptions include:

27 (1) when plaintiffs make a showing of agency bad faith, or (2) when the agency failed to

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1 consider “all relevant factors” of the decision. Id.

2

1. Use of Extra-Record Evidence to Evaluate Plaintiffs’ Pretext Argument

3

A court may consider extra-record evidence that is relevant to the reason for an

4 agency action where there has been a strong showing of bad faith or improper behavior by

5 the decision-makers. Public Power Council v. Johnson, 674 F.2d 791, 795 (9th Cir. 1982);

6 Ranchers Cattlemen, 499 F.3d at 1117. In such circumstances, consideration of extra-record

7 evidence is “necessary to a meaningful judicial review” of the agency’s actual decision-

8 making process. Tummino v. Torti, 603 F. Supp. 2d 519, 543 (E.D.N.Y. 2009).

9

As discussed in greater detail in Part IV.C.12, infra, the Administrative Record alone

10 provides a “strong showing” of bad faith which authorizes this Court to look outside the

11 record for further evidence of pretext. That is particularly true here, where the

12 Administrative Record includes pre-decision communications between Secretary Ross and

13 his “point person” on the citizenship question issue expressing caution about what the

14 Administrative Record would include. PTX-96, PTX-362. 2. Defendants proceeded to

15 submit an initial Administrative Record that mischaracterized the Secretary’s decision-

16 making process and concealed important circumstances surrounding the DOJ’s request for

17 the addition of the citizenship question. Defendants supplemented the record only after being

18 ordered to do so in the New York matter. For these reasons, and the reasons set forth in Part

19 IV.C.12, infra, consideration of extra-record evidence is appropriate, but not necessary, for

20 the purpose of determining whether Secretary Ross’s decision was pretextual.

21

2. Use of Extra-Record Evidence to Evaluate Whether Defendants Considered All

Relevant Factors

22 An agency’s decision is arbitrary and capricious under the APA if, among other

23 things, the agency failed to consider all “relevant factors,” Ranchers Cattlemen, 499 F.3d at

24 1115; ignored “an important aspect of the problem,” Motor Vehicle Mfrs. Ass’n of U.S., Inc.

25 v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43-44 (1983); or made “an irrational

26 departure from [settled] policy,” INS v. Yueh-Shaio Yang, 519 U.S. 26, 32 (1996).

27

To apply these standards, a court must—as a threshold matter—understand what is

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1 “relevant,” “important,” or “settled policy” in the field where the challenged agency decision

2 was made. In many cases, the Administrative Record will provide the relevant benchmarks.

3 But evidence outside the “bare record” may be required to determine “the applicable

4 standard” to apply in evaluating the completeness of the agency’s reasoning and in

5 determining whether the agency ignored critical factors or information. See Citizens to

6 Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971); see also Nat’l Audubon

7 Soc. v. U.S. Forest Service, 46 F.3d 1437, 1447 (9th Cir. 1993).

8

“It will often be impossible, especially when highly technical matters are involved,

9 for the court to determine whether the agency took into consideration all relevant factors

10 unless it looks outside the record to determine what matters the agency should have

11 considered but did not.” Asarco, Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir. 1980). The court

12 cannot adequately discharge its duty to engage in a “substantial inquiry” if it is required to

13 take the agency’s word that it considered all relevant matters. Id.; see also Nat’l Audubon

14 Soc. v. Hoffman, 132 F.3d 7, 15 (2d Cir. 1997) (“[t]he omission of technical scientific

15 information is often not obvious from the record itself”).

16

Because this case involves complex technical issues related to survey methodology

17 and census-related practices, meaningfully evaluating whether Defendants considered all

18 relevant factors or irrationally departed from settled policy would be difficult on the

19 Administrative Record alone. The Court cannot simply accept Defendants’ assurances that

20 they considered all relevant factors. Accordingly, extra-record evidence will be admitted for

21 this limited purpose as well.

22

In the interest of facilitating review of this decision by higher courts, the findings of

23 fact and conclusions of law that are based exclusively on the administrative record will be

24 discussed separately from those that rely on extra-record evidence.

25

C. Findings of Fact Based Exclusively on the Administrative Record15

26 27 15 The numbering of the findings of fact picks up where it left off in Part III.B, supra.

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1. Compilation of the Administrative Record 1
166. Defendants produced an initial Administrative Record, along with a certification 2
and index on June 8, 2018, consisting of only 1,320 pages. See PTX-1 (AR 1-1320). These 3
materials contain little documentation of internal discussions that took place before 4
December 2017 and communications between the Departments of Commerce and Justice 5
about the citizenship question. Id. 6
167. On June 21, 2018, Defendants filed a supplemental memorandum composed by 7
Secretary Ross that revised the narrative of how a citizenship question came to be placed on 8
the decennial census. PTX-2. 9
168. On July 3, 2018, and memorialized in a July 5, 2018 order, Defendants were 10
ordered to supplement the Administrative Record in New York et al. v. Department of 11
Commerce, et al., No. 18-cv-2921 (S.D.N.Y.).16 In response to that order, Defendants 12
produced extensive supplemental Administrative Record documents. The parties agreed that 13
all documents bearing prefix-less Bates stamps between 000001 and 0013024 are part of the 14
Administrative Record. Joint Pretrial Statement 11-13. 15
2. Secretary Ross’s Deliberations Prior to Receiving the DOJ Letter 16
169. In March 2017, the Bureau reported to Congress the five “topics” that would be 17
included on the 2020 Census, including gender, age, race, ethnicity, and homeownership 18
status. The subjects did not include citizenship or immigration status. PTX-264 at 5-15. This 19
report also listed topics limited to the ACS, including citizenship. Id. at 55. 20
170. That same month, Secretary Ross exchanged emails with his Deputy Chief of 21
Staff and Director of Policy, Earl Comstock, regarding whether noncitizens are included in 22
the census count for the purposes of congressional apportionment. PTX-30; PTX-55. 23
Comstock specifically emailed Ross an answer to “Your Question on the Census,” to 24
confirm that noncitizens are indeed counted on the census. PTX-55. 25
26 16 Judicial notice is taken of the order in New York et al. v. Department of Commerce, et al.,
27 No. 18-cv-2921 (S.D.N.Y.) requiring Defendants to supplement the record.
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1

171. On April 5, 2017, Ross’s executive assistant wrote an email directed to Ross

2 indicating that “Steve Bannon has asked the Secretary to talk to someone about the census.”

3 PTX-58.17 In their subsequent communications, Stephen Bannon connected Secretary Ross

4 with Kris Kobach, former Vice Chair of the Presidential Commission on Election Integrity

5 and Kansas Secretary of State, to discuss adding a citizenship question to the census. PTX-

6 19; PTX-58. Kobach told Secretary Ross by phone that a citizenship question was necessary

7 to address the “problem that aliens who do not actually ‘reside’ in the United States are still

8 counted for congressional apportionment purposes.” PTX-19 at 2.

9

172. A few days later, Mark Neuman, an outside advisor to Secretary Ross, emailed

10 Comstock with the subject line “One of the Supreme Court cases that informs planning for

11 the 2020 Census. . . .” PTX-182. The email contained only a link to the Supreme Court’s

12 decision in LULAC v. Perry, id., which considered citizen voting age population in assessing

13 claims under Section 2 of the VRA. On April 13, Comstock emailed Neuman, asking when

14 the Census Bureau would need to notify Congress of the questions that would appear on the

15 2020 Census. PTX-88; PTX-181. Neuman responded to Comstock on April 14, 2017, that

16 the notification deadline for topics had already passed, and that “[t]here would be another

17 opportunity next year.” PTX-88.

18

173. On May 2, 2017, Secretary Ross emailed Comstock: “I am mystified why

19 nothing [has] been done in response to my months old request that we include the citizenship

20 question. Why not?” PTX-89. In reference to the statutory requirement that the topics for the

21 Census be submitted by March 2017, Secretary Ross wrote to Comstock: “Worst of all they

22 emphasize that they have settled with congress on the questions to be asked.” Id. Comstock

23 wrote back: “On the citizenship question we will get that in place . . . . We need to work with

24 Justice to get them to request that citizenship be added back as a census question.” Id.

25

3. Comstock Seeks an Agency Willing to Request Addition of the Citizenship

26 27 17 At the time, Bannon was the White House Chief Strategist.

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Question 1
174. Secretary Ross’s May 2, 2017 email led to immediate action by Comstock. On 2
May 3, 2017, Eric Branstad, a Senior White House Advisor, reached out on Comstock’s 3
behalf to Matthew J. Flynn, Senior Director of Cabinet Affairs at the Executive Office of the 4
President, to find “the best counterpart to reach out to at DOJ regarding Census and 5
Legislative issue?” PTX-85. Branstad subsequently referred Comstock to Mary Blanche 6
Hankey who was the White House liaison within DOJ. PTX-370. 7
175. Hankey directed Comstock to speak with James McHenry, the director of the 8
Executive Office of Immigration Review at DOJ. Id. Comstock spoke “several times” with 9
McHenry of DOJ about adding a citizenship question to the census. Id. McHenry ultimately 10
informed Comstock that the DOJ did not want to request the citizenship question “given the 11
difficulties Justice was encountering in the press at the time (the whole Comey matter).” Id. 12
176. McHenry therefore referred Comstock to the Department of Homeland 13
Security. Id. DHS, however, likewise declined to request the citizenship question. Id. 14
Following his failed discussions with DHS, Comstock asked James Uthmeier, of the Office 15
of General Counsel at the Department of Commerce, to investigate “how Commerce could 16
add the question to the Census itself.” Id. 17
177. On May 24, 2017, Secretary Ross and David Langdon, a policy advisor who 18
reported to Comstock, met “all afternoon.” PTX-151 at 2. During that meeting, Secretary 19
Ross asked questions about the content of the decennial Census and “seemed . . . puzzled 20
why citizenship is not included in the 2020” census. PTX-86 at 1. Later that afternoon, 21
Burton Reist, Chief of Decennial Communications and Stakeholder Relations at the Census 22
Bureau, emailed Langdon a 1988 internal DOJ memorandum that opined the Constitution 23
does not mandate the counting of undocumented U.S. residents in the census apportionment 24
count. PTX-448, PTX-449 at 1-2. That evening, Langdon requested further information from 25
Census Bureau staff including Reist regarding “the criteria used to pick topics for 2020 26
versus ACS. Say, citizenship.” PTX-151. 27
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1

178. That same day, Langdon sent an email to Comstock entitled “Counting of illegal

2 immigrants,” which stated: “the counting of illegal immigrants (or of the larger group of

3 noncitizens) has a solid and fairly long legal history . . . [there is] a Bush 41 era DOJ opinion

4 that proposed legislation to exclude illegal aliens from the decennial census was illegal.”

5 PTX-397. Comstock responded to Langdon that day, asking for further information on the

6 selection of questions for the census versus the ACS, and passing along the Supreme Court

7 decision of LULAC v. Perry that Neuman had previously provided for the proposition that

8 the government might have a use for citizenship data. Id.; PTX-182.

9

179. On July 14, 2017, Kobach emailed Secretary Ross to remind him of their prior

10 telephone discussion “a few months ago.” PTX-19 at 2. Kobach wrote that during their

11 earlier discussion, he and Secretary Ross “talked about the fact that the US census does not

12 currently ask respondents about their citizenship,” and further advised Secretary Ross that

13 the absence of such a question “leads to the problem that aliens who do not actually ‘reside’

14 in the United States are still counted for congressional apportionment purposes.” Id. Kobach

15 further wrote that “it was essential that one simple question be added to the upcoming 2020

16 census” and that a variant of the question that appears on the ACS “needs to be added to the

17 census.” Id.

18

180. On July 21, 2017, Kobach called Wendy Teramoto, a Senior Advisor and Chief

19 of Staff to Secretary Ross. Id. at 1. He also emailed her, forwarding his July 14 email to

20 Secretary Ross stating that he had spoken to Secretary Ross about adding a citizenship

21 question to the 2020 Census at the direction of Steve Bannon. Id. Teramoto subsequently

22 arranged a call between Kobach and Secretary Ross for a few days later. Id.

23

181. On August 8, 2017, Secretary Ross emailed Comstock, asking “where is DOJ in

24 their analysis” of whether to add a citizenship question to the 2020 Census, and advising

25 “[i]f they still have not come to a conclusion please let me know your contact person and I

26 will call the AG.” PTX-96; PTX-98. The very next day, Comstock emailed Secretary Ross,

27 stating “we are preparing a memo and full briefing for you on a citizenship question. The

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1 memo will be ready by Friday . . . Since this issue will go to the Supreme Court we need to

2 be diligent in preparing the administrative record.” PTX-96, PTX-362. Secretary Ross

3 responded to Comstock the next day, “I would like to be briefed on Friday by phone . . . we

4 should be very careful about everything, whether or not it is likely to end up in the SC.”

5 PTX-96, PTX-362.

6

182. On August 11, Comstock and Uthmeier exchanged edits on briefing materials

7 for Secretary Ross related to a citizenship question. During this exchange, Uthmeier wrote

8 that he had “recommendations on execution,” stating that he thought “our hook” was

9 “ultimately, we do not make decisions on how the [citizenship] data will be used for

10 apportionment, that is for Congress (or possibly the President) to decide.” PTX-437 at 2.

11 That same day, Comstock emailed Secretary Ross and Teramoto “a draft memo on the

12 citizenship question” prepared by James Uthmeier. PTX-3 at 1140; PTX-147. The

13 memorandum has not been produced.

14

183. On September 1, 2017, Secretary Ross complained to Comstock and Teramoto

15 about a number of issues, including that he had “received no update [on] the issue of the

16 census question” and Comstock responded, “Understood. Wendy and I are working on it.”

17 PTX-45; PTX-97.

18

184. On September 6, Secretary Ross and his senior staff had a meeting to discuss

19 adding a citizenship question to the decennial census. PTX-31; PTX-35; PTX-36; PTX-46;

20 PTX-47. The next day, Secretary Ross requested from his staff an update on “progress since

21 the discussion yesterday regarding the citizenship question.” PTX-37, PTX-49. A few days

22 later, Uthmeier contacted Neuman to discuss “some Census legal questions for the

23 Secretary.” PTX-38. That same day, Comstock sent Secretary Ross a memo reporting on his

24 efforts to identify someone who would request that a citizenship question be added to the

25 2020 Census, and advising that, as of that date, he had not been successful in locating any

26 such agency. PTX-48; PTX-134. He also informed the Secretary that, once his discussions

27 with DOJ and DHS fell through, he had enlisted Uthmeier’s help in advancing the

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1 citizenship question. PTX-48; PTX-134.

2

185. In mid-September, John Gore of DOJ contacted and later spoke on the

3 telephone with Teramoto “about a DOJ-DOC” issue. PTX-59; PTX-60. Following that

4 conversation, Gore worked with an aide to Attorney General Sessions to set up a phone call

5 between Secretary Ross and then Attorney General Sessions. PTX-63, PTX-67, PTX-68. On

6 September 17, 2017, Danielle Cutrona in the Office of the Attorney General wrote to Wendy

7 Teramoto, Ross’s Chief of Staff, to say that “[t]he Attorney General is available on his cell,”

8 and that “it sounds like we can do whatever you all need us to do and the delay was due to a

9 miscommunication . . . . The AG is eager to assist.” PTX-62 (emphasis added); see also

10 PTX-67; PTX-68. Secretary Ross and Attorney General Sessions proceeded to speak on the

11 phone regarding the subject of Gore and Teramoto’s earlier conversation, presumably about

12 adding the citizenship question to the census. PTX-57; PTX-61; PTX-62.

13

186. The most reasonable inference to be drawn from these facts is that, on or before

14 September 18, 2017, Secretary Ross spoke with Attorney General Sessions and asked that he

15 instruct his subordinates at DOJ to request a question on citizenship be added to the Census.

16

187. On Sunday, October 8, Secretary Ross sent an email to staffer Peter Davidson

17 of the Department of Commerce with the subject line, “Letter from DOJ” asking “what is its

18 status.” PTX-52. Davidson responded, “I’m on the phone with Mark Neuman right now . . .

19 he is giving me a readout of his meeting last week.” Id. On the evening of November 27,

20 2017, Secretary Ross emailed Davidson again, stating, “Census is about to begin translating

21 the questions into multiple languages and has set the printing contract. We are out of time.

22 Please set up a call for me tomorrow with whoever is the responsible person at Justice. We

23 must get this resolved.” PTX-144.

24

188. The Administrative Record shows that Secretary Ross issued a “request that we

25 include the citizenship question,” PTX-89, that Comstock assured him that “we will get that

26 in place,” id, that Secretary Ross’s staff attempted to find a way for the Department of

27 Commerce to add the citizenship question without an outside agency request when it

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1 appeared unlikely that any such request would materialize, and that Secretary Ross

2 intervened with the Attorney General when career staff at DOJ and DHS refused to request

3 the addition of the question. The reasonable inference to be drawn from these actions is that

4 Secretary Ross had already made up his mind to include the citizenship question on the 2020

5 Census before he received the DOJ request letter.

6

189. There is no writing of any kind in the Administrative Record authored by the

7 Secretary or anyone at the Commerce Department (or anyone else) that directly describes the

8 reasons why the Secretary wanted to add a citizenship question prior to December 12, 2017.

9

190. The Administrative Record reveals, however, that at the same time the

10 Secretary was discussing adding a citizenship question to the census in the spring and

11 summer of 2017, he was asking Comstock questions about whether congressional

12 apportionment based on the census included noncitizens, he was informed that including

13 noncitizens in congressional apportionment was legally required, and he was advised by

14 Kobach that the inclusion of noncitizens in the census was a “problem.” PTX-19; PTX-55;

15 PTX-58; PTX-86; PTX-89; PTX-151; PTX-397; PTX-437; PTX-444. Nowhere in the record

16 does Secretary Ross explicitly state whether he subscribed to the same rationale for

17 including the citizenship question as Kobach.

18

191. Nevertheless, it is clear that Secretary Ross’s decision prior to December 12,

19 2017 to include the citizenship question was unrelated to the enforcement of the VRA.

20 Secretary Ross’s direction to his staff to find a way to include the citizenship question on the

21 census, the fact that his staff solicited DHS as well as DOJ for a request, and the fact that

22 Comstock’s attempts to solicit a request were not limited to the Division of Civil Rights

23 belie any notion that Secretary Ross’s motivation was to meet DOJ’s VRA enforcement

24 needs. Rather, it was DOJ that was meeting his preferences. PTX-62; PTX-67; PTX-68.

25

192. The Administrative Record strongly supports the following inferences

26 regarding the period from March 2017 through December 2017: (1) that before Secretary

27 Ross received DOJ’s request to add the citizenship question, he had already decided to

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1 include the citizenship question on the 2020 Census; (2) that his reasons for wanting the

2 question asked were unrelated to DOJ’s alleged need for citizenship data at the census block

3 level to enforce the VRA; (3) that he directed his staff to find a way to get the citizenship

4 question added to the Census; (4) that, when he was told that he needed to have an agency

5 ask him to add the question, he directed his staff to find an agency to ask him; and (5) that he

6 did not care who asked for the question or the reasons for asking the question, so long as

7 some agency asked.

8

4. DOJ Letter Requesting the Addition of the Citizenship Question

9

a. DOJ’s Previous Decision Not to Request the Citizenship Question

10

193. In June 2014, Arthur Gary of DOJ wrote to the General Counsel of the

11 Department of Commerce to indicate what census-derived data the DOJ uses and to confirm

12 that it continued to use such data. PTX-1 at 278-83. Gary indicated that DOJ used citizenship

13 data collected by the ACS to enforce the VRA, and that the “lowest geography” for which

14 DOJ needed citizenship data was the “Census block group” level. Id. at 280. Gary did not

15 indicate that DOJ needed citizenship data at the census block level, or that it needed a

16 citizenship question on the 2020 Decennial Census.

17

194. In July 2016, Gary wrote to the Census Bureau to confirm that the DOJ “had no

18 needs to amend the current content and uses or to request new content” for the 2020 Census.

19 PTX-1 at 311. In November of 2016, Gary supplemented that letter to “formally request[]

20 that the Census Bureau consider a new topic in the ACS relating to LGBT populations.” Id.

21 At no time prior to December 2017 did Gary express a need for more granular citizenship

22 data or a citizenship question on the Census.

23

b. DOJ Changes Positions and Requests the Citizenship Question

24

195. On December 12, 2017, Arthur Gary of DOJ sent a formal letter to Dr. Ron

25 Jarmin, Acting Director of the Census Bureau, requesting that a citizenship question be

26 added to the 2020 Census (December 12 Letter). PTX-32. The December 12 Letter requests

27 the addition of a citizenship question for purposes of VRA enforcement. Id.

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1

196. The letter does not state that a citizenship question and/or block-level

2 citizenship data is strictly necessary for the purposes of VRA enforcement. Rather, the letter

3 contends, “the Department [of Justice] believes that decennial census questionnaire data

4 regarding citizenship, if available, would be more appropriate for use in redistricting and in

5 Section 2 litigation than the ACS citizenship estimates.” Id. at 3. It further cites numerous

6 published cases for the proposition that, “in order to assess and enforce compliance with

7 Section 2’s protection against discrimination in voting, the Department needs to be able to

8 obtain citizen voting-age population data for census blocks…where potential Section 2

9 violations are alleged or suspected.” Id. at 2.

10

197. The December 12 Letter states that one of the reasons decennial census data on

11 citizenship would be preferable to ACS data concerns the margin of error: “The ACS

12 estimates are reported at a ninety percent confidence level, and the margin of error increases

13 as the sample size—and, thus, the geographic area—decreases . . . By contrast, decennial

14 census data is a full count of the population.” Id. at 3.

15

198. The letter does not state that any plaintiffs had lost any Section 2 enforcement

16 actions due to insufficient CVAP data from the ACS. Nor does the letter suggest that DOJ

17 has declined to bring any Section 2 enforcement actions due to insufficient CVAP data from

18 the ACS.

19

5. The Census Bureau’s Analyses and Recommendations

20

199. Soon after the Census Bureau received the December 12 Letter, Dr. Abowd

21 directed the SWAT Team, to formulate a response to the suggestion that a citizenship

22 question be added, which Dr. Abowd managed and reviewed. PTX-4D at 284; PTX-75;

23 PTX-148; UF 19. In a series of technical reports, responses to questions posed by Secretary

24 Ross, and other briefing documents, the Census Bureau consistently recommended against

25 adding a citizenship question to the 2020 Census. PTX-22; PTX-101; PTX-133; PTX-148.

26

200. The Census Bureau concluded that the stated goals of DOJ with respect to

27 enforcement of the VRA could be accomplished, in a less costly and more effective manner,

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1 by linking Census responses to other administrative data sets available to the federal

2 government. PTX-22; PTX-101; PTX-133; PTX-148. In other words, the Census Bureau

3 determined that including a citizenship question on the decennial census was not necessary

4 to provide complete and accurate data in response to DOJ's request. PTX-22; PTX-101;

5 PTX-148. In fact, the Census Bureau advised Secretary Ross that relying exclusively on

6 administrative records would result in more accurate citizenship data than adding a

7 citizenship question to the census. PTX-22; PTX-101; PTX-148. The Bureau further

8 concluded that relying exclusively on administrative records would produce more accurate

9 citizenship data than attempting to use both administrative records and citizenship responses.

10 PTX-24; PTX-25.

11

201. As part of its analysis, the Census Bureau examined the initial drop in self-

12 response due to the citizenship question, as well as the potential costs of NRFU as a result of

13 that drop. PTX-22; PTX-101; PTX-133; PTX-148. The Administrative Record does not,

14 however, contain any information showing that the Census Bureau analyzed whether NRFU

15 could or would mitigate the decrease in self-response rates, or whether the citizenship

16 question would ultimately result in an undercount.

17

a. December 22 Census Bureau Memo

18

202. On or about December 15, 2017, Dr. Abowd directed senior executives and

19 expert employees of the Census Bureau to evaluate alternative methods of providing

20 estimates of the CVAP to support redistricting under Public Law 94 -171 (P.L. 94-171) and

21 Section 2 of the VRA. PTX-4D at 284; PTX-148 at 1. This evaluation is reflected in a

22 memorandum dated December 22, 2017 and was provided to the Commerce Department

23 (December 22 Memo). PTX-148.

24

203. In the December 22 Memo, the Bureau reported on the differential decline in

25 self-response rates from the 2010 Decennial Census to the 2010 ACS in households with at

26 least one noncitizen and found that there was a 5.1% greater decline among such households,

27 which is “consistent with citizenship questions being more sensitive for households with

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1 noncitizens.” Id. at 6-7.

2

204. Additionally, the Bureau found that “there is a tendency for noncitizen ACS

3 respondents to report being U.S. citizens,” and that “roughly 40 percent” of those who are

4 legal resident noncitizens reported being citizens on the ACS. Id. at 7.

5

205. The memo recommended that that the citizenship data for DOJ VRA

6 enforcement be obtained through the use of administrative records rather than the addition of

7 a question to the decennial census instrument. Id. at 11. The Bureau based this

8 recommendation on several factors, including its conclusion that the question would create a

9 differential increase in nonresponse rates of at least 5.1 percent in households with at least

10 one noncitizen, and the fact that citizenship status is often inaccurately reported by

11 noncitizens.

12

206. The Census Bureau identified eight administrative sources of citizenship

13 information either already in use by the Census Bureau or available for acquisition by the

14 Census Bureau. Id. at 3. Accordingly, the December 22 Memo advised that the best way to

15 meet DOJ’s stated need was to provide it with citizenship data from administrative records.

16 Id. at 11.

17

207. The memo observed that, if the recommendation were followed, “[t]he 2020

18 Census questionnaire would not be altered, and the field operations would not have to be

19 expanded to compensate for the lower rate of voluntary compliance predicted for a census

20 that asks the citizenship question directly.” Id. at 12.

21

b. January 3 Memo

22

208. Following the December 22 Memo, the Census Bureau further memorialized its

23 research and analysis of potential sources of citizenship data in a January 3, 2018

24 memorandum from Dr. Abowd to Dr. Jarmin (January 3 Memo). PTX-101.

25

209. This document explained that the Census Bureau produces CVAP data in “two

26 related data products: the P.L. 94-171 redistricting data produced by April 1st of the year

27 following a decennial census under the authority of 13 U.S.C. Section 141, and the Citizen

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1 Voting Age Population by Race and Ethnicity (CVAP) tables produced every February from

2 the most recent five-year ACS data.” PTX-101 at 1. While the P.L. 94-171 data is released at

3 the census block level, the CVAP data is released at the census block group level. Id.

4

210. The memo proceeded to analyze the cost and data quality implications of three

5 alternative methods of meeting DOJ’s request for census block-level estimates of CVAP. Id.

6

211. Alternative A was to “[m]aintain the status quo for data collection, preparation

7 and publication,” but then prepare a special product for DOJ that combines the P.L. 94-171

8 and CVAP tables to produce the Bureau’s best estimate of block-level CVAP data. Id.

9 Alternative A was estimated to cost $200,000. Id. at 2. The Census Bureau concluded this

10 option was “not very costly and does not harm the quality of the census count.” Id. at 3.

11

212. Alternative B was to “[a]dd a citizenship question to the 2020 Census

12 questionnaire.” The memo estimated that Alternative B would increase census nonresponse

13 rates by at least 5.1 percent of all households with one or more noncitizens, or 700,000

14 households. Id. at 2. This would increase the NRFU workload and increase the cost of the

15 2020 Census by “at least $27.5 million.” Id. While the memo stated that Alternative B suited

16 DOJ’s stated uses better than Alternative A, it noted that this option would be “very costly”

17 and—because NRFU is less accurate than self-responses—would harm the accuracy of the

18 census. Id. at 2, 3.

19

213. Alternative C would involve creating block-level citizenship data using

20 administrative records without asking respondents about their citizenship status. Id. at 1.

21 This option was estimated to cost less than $1 million. Id. at 2. The Bureau concluded that

22 relying exclusively on administrative records would deliver higher quality citizenship data

23 than Alternative B because the administrative records provide “very accurate” citizenship

24 information. Id. at 3. The memo explained that this is because the administrative record data

25 required proof of citizenship, whereas citizenship information is self-reported less

26 accurately, and proxies report citizenship even less accurately than self-responding

27 individuals. Id.

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1

214. The Census Bureau therefore expressly recommended Alternative C in the

2 January 3 memo, reasoning that, compared to Alternatives A and B, Alternative C “even

3 better meets DoJ’s stated uses, is comparatively far less costly than Alternative B, and does

4 not harm the quality of the census count.” Id. On January 4, 2018, Dr. Abowd wrote to

5 various census officials, including Dr. Jarmin, “Ron reports that he has discussed this with

6 the Under Secretary, and she agrees with the recommendation of Alternative C, but

7 Alternative A remains a possibility as well.” PTX-122 at 1.

8

c. January 19 Memo

9

215. On January 19, 2018, Dr. Abowd sent another memorandum to Secretary Ross

10 on the “Technical Review of the Department of Justice Request to Add Citizenship Question

11 to the 2020 Census” (January 19 Memo). PTX-22. This memo presents the view of Dr.

12 Abowd and the technical team that evaluated Alternatives A, B and C. Id. It contains the

13 same recommendation and rationale as in the January 3 Memo, along with some additional

14 details of their analysis. Id.

15

216. The memo specifically examined the issue of item nonresponse to the

16 citizenship question, i.e. nonresponse to the particular question, rather than the whole

17 questionnaire. Id. at 4. It noted that item nonresponse rates for the citizenship question “are

18 much greater than the comparable rates for other demographic variables like sex,

19 birthdate/age, and race/ethnicity.” Id. Moreover, between 2013 and 2016, the item

20 nonresponse rate of Hispanics to the citizenship question was approximately double that of

21 non-Hispanic whites. Id.

22

217. The memo also examined the break-off rate for internet responses to the 2016

23 ACS, i.e. at what question people stopped taking the survey. Id. at 5. It found that “[b]ecause

24 Hispanics and non-Hispanic non-whites breakoff much more often than non-Hispanic

25 whites, especially on the citizenship-related questions, their survey response quality is

26 differentially affected.” Id.

27

218. The Census Bureau reiterated its estimate, based on the 2010 census and ACS,

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1 that Alternative B would cause a 5.1 percent drop in self response from households

2 containing at least one noncitizen. Id. at 4-5. It explained that, while both citizen and

3 noncitizen households responded to the ACS (which had a citizenship question) at lower

4 rates than to the census (which did not), the decline between the two surveys was 5.1 percent

5 greater for noncitizen households. Id. at 4.

6

219. The January 19 Memo further explained that lowered self-response rates would

7 lower census data quality because data obtained in NRFU have greater rates of erroneous

8 enumeration and whole-person imputation. Id. at 5-6. Erroneous enumerations are

9 enumerations of a person who should not have been counted and whole-person imputations

10 are enumerations of all characteristics of a person. Id. at 5.

11

220. The Census Bureau provided additional information about the shortcomings of

12 attempting to ascertain citizenship status based on direct inquiries. It specifically explained

13 that Alternative C would yield more accurate citizenship data than Alternative B because,

14 based on historical census and ACS data, noncitizens misreport themselves as citizens “for

15 no less than 23.8% of the cases, and often more than 30%.” Id. at 7. Specifically, “[i]n 2010

16 and 2016, individuals for whom the administrative data indicate noncitizen respond citizen

17 in 32.7% and 34.7% of the ACS questionnaires, respectively.” Id. at 8. By contrast,

18 Alternative C would provide highly accurate citizenship data because administrative record

19 citizenship data is “verified” based on proof of citizenship or legal resident alien status. Id. at

20 7.

21

221. The memo also addressed the increased burden on respondents associated with

22 the addition of the citizenship question. The Census Bureau explained: “Survey

23 methodologists consider burden to include both the direct time costs of responding and the

24 indirect costs arising from nonresponse due to perceived sensitivity of the topic.” Id. at 5.

25 Thus, a citizenship question “would make the 2020 Census modestly more burdensome in

26 the direct sense, and potentially much more burdensome in the indirect sense that it would

27 lead to a larger decline in self-response for noncitizen households.” Id.

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1

222. Finally, the Census Bureau explained the $27.5 million increase in costs due to

2 the addition of the citizenship question “is a conservative estimate because the other

3 evidence cited in this report suggests that the differences between citizen and noncitizen

4 response rates and data quality will be amplified during the 2020 Census compared to

5 historic levels. Hence, the decrease in self-response for [non]citizen households in 2020

6 could be much greater than the 5.1 percentage points we observed during the 2010 Census.”

7 Id. at 6. Ultimately, the memo concluded that adding a citizenship question to the decennial

8 census, “is very costly, harms the quality of the census count, and would use substantially

9 less accurate citizenship status data than are available from administrative sources.” Id. at 1.

10

223. Bureau staff had a single meeting with Secretary Ross on February 12, 2018, to

11 discuss the January 19 Memo. The only record of the meeting in the Administrative Record

12 is a February 12, 2018 email from James Treat of the Census Bureau to other Bureau

13 employees, including Dr. Jarmin and Dr. Abowd, identifying five “actions from yesterday’s

14 meeting with the Secretary.” PTX-128.

15

d. March 1 Memo

16

224. At some point after the February 12 meeting, Secretary Ross requested analysis

17 of a fourth option, Alternative D, which would involve “combining Alternative B (asking the

18 citizenship question of every household on the 2020 Census) and Alternative C (do not ask

19 the question, link reliable administrative data on citizenship status instead).” PTX-133 at 2.

20 On March 1, 2018, Dr. Abowd sent an additional recommendation memorandum to Secretary

21 Ross performing an analysis of this fourth alternative. PTX-133. In this memo, the Census

22 Bureau concluded that, “Alternative D would result in poorer quality citizenship data than

23 Alternative C. It would still have all the negative cost and quality implications of Alternative

24 B outlined in the draft January 19, 2018 memo to the Department of Commerce.” Id. at 5.

25

225. The Census Bureau also identified additional problems with Alternative D in the

26 March 1 Memo. First, census responses would be unreliable for filling in the data gaps for

27 those who do not match to administrative records, because undocumented immigrants “have

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1 a strong incentive to provide an incorrect [citizenship] answer, if they answer at all.” Id. at 4.

2

226. Second, lowered self-response rates due to the citizenship question would

3 decrease the number of people who can be linked to administrative records, because NRFU

4 personal identifying information is of lower quality than personal identifying information

5 that is self-reported. Id.

6

227. Further, the March 1 Memorandum explains:

7

Under Alternative C, there will be error in the administrative records, but we

believe these to be relatively limited due to the procedure following by SSA,

8

USCIS and State. In both Alternatives, the modeled cases will be subject to

prediction error . . . . Alternative D has an additional source or error, response

9

error. This is where 2020 respondent give the incorrect status. Statisticians

10

often hope these errors are random and cancel out. However, we know from

prior research that citizenship status responses are systematically biased for a

11

subset of noncitizens. Response error is only an issue in alternative D.

12 PTX-133 at 8.

13

228. The memo concludes that, under Alternative D, for the group of 22 million

14 people for which the Bureau has both a census response and administrative records, but

15 where they do not match, the citizenship data will be less accurate due to response errors. Id.

16

229. The Bureau also concluded that under Alternative D, it would not receive a

17 response to the citizenship question from 35.4 million people and would likely be able to

18 observe citizenship status for 21.5 million people and impute citizenship status for 13.8

19 million people, concluding that “there will be a need for imputing many cases across either

20 alternative.” Id. at 7-8.

21

230. As in previous Census Bureau memoranda on the subject, the March 1 Memo

22 recommended against adding a citizenship question to the 2020 Census. Id. at 5.

23

6. The Set of 35 Questions Answered by the Census Bureau

24

231. Following the January 19 Memo, Comstock and Uthmeier developed and sent

25 to the Census Bureau a set of 35 questions for the Census Bureau to answer about the

26 analysis in the January 19 Memo. PTX-377. The Census Bureau’s responses to the questions

27 were submitted to the Commerce Department on March 1, 2018, along with Dr. Abowd’s

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1 March 1 memorandum to Secretary Ross. PTX-133.

2

232. Question 31 asked, “What was the process that was used in the past to get

3 questions added to the decennial Census or do we have something similar where a precedent

4 was established?” Id. at 21. The Census Bureau provided the following response:

5

The Census Bureau follows a well-established process when adding or

6

changing content on the census or ACS to ensure the data fulfill legal and regulatory requirements established by Congress. Adding a question or

7

making a change to the Decennial Census or the ACS involves extensive

testing, review, and evaluation. This process ensures the change is necessary

8

and will produce quality, useful information for the nation.

9

The Census Bureau and the Office of Management and Budget (OMB) have

10

laid out a formal process for making content changes.

11

 First, federal agencies evaluate their data needs and propose additions

or changes to current questions through OMB.

12

 In order to be included, proposals must demonstrate a clear statutory or

regulatory need for data at small geographies or for small populations.

13

 Final proposed questions result from extensive cognitive and field

14

testing to ensure they result in proper data, with an integrity that meets

the Census Bureau’s high standards.

15

 This process includes several opportunities for public comment.

 The final decision is made in consultation with OMB.

16

 If approved, the Census Bureau implements the change.

17 Id. at 21-22.

18

233. The description of the “well-established” process in the Census Bureau’s

19 response to Question 31 is consistent with other Census Bureau documents describing the

20 process to add a question or change the content of the decennial census. PTX-4 at AR 3890,

21 3560, 9867; PTX-135; PTX-141.

22

234. The Administrative Record shows that, despite the fact that the questions were

23 directed to the Census Bureau, Commerce Department Deputy General Counsel Michael

24 Walsh drafted a different answer to Question 31. PTX-14. That answer states:

25

No new questions were added to the 2010 Decennial Census, so there is no

recent precedent for considering a request to add questions to a Decennial

26

Census. Consistent with longstanding practice for adding new questions to the

27

ACS survey, the Census Bureau is working with relevant stakeholders to

ensure that legal and regulatory requirements are fulfilled and that the

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question would produce quality, useful information for the nation. As you are

1

aware, that process is ongoing. Upon its conclusion, you will have all of the

2

relevant data at your disposal to make an informed decision about the pending

request from the Department of Justice.

3 PTX-1 at 1296.

4

235. In Defendants’ first production of documents in the Administrative Record,

5 which they represented at the time constituted the complete administrative record, they

6 included a version of the 35 questions and answers that included only Walsh’s answer to

7 Question 31. See PTX-1 at 1296. The Census Bureau’s March 1 response to Question 31 was

8 produced later and as a result of the New York court’s order to supplement the record. See

9 PTX-133 at 21-22.

10

236. Question 1 of the 35 questions asked, “With respect to Alternatives B and C,

11 what is the difference, if any, between the time when the data collected under each

12 alternative would be available to the public?” PTX-133 at 11. The Census Bureau answered

13 Question 1 by stating that, between Alternatives B and C, there was no difference in the

14 timing in which the citizenship data could be offered to the public. Id.

15

7. Memo Re: “Key Differences Between Alternative C and Alternative D”

16

237. The Administrative Record also includes a memorandum entitled “Summary

17 Analysis of the Key Differences Between Alternative C and Alternative D.” PTX-24. Like

18 the March 1 Memo, this memorandum recommends using administrative data alone

19 (Alternative C) and not adding a citizenship question. Id. at 1-2.

20

238. The Census Bureau explained that while both Alternative C and D will require

21 the citizenship of a portion of the population to be imputed, or “modeled,” Alternative D will

22 suffer from accuracy issues because many noncitizens self-report as citizens, which will

23 systematically bias the modeling in Alternative D. Id. at 2.

24

239. Neither this memorandum, or any of the memoranda previously discussed,

25 analyzed whether NRFU would fully mitigate the nonresponse or whether it would ultimately

26 result in an undercount of certain populations. See PTX-22; PTX-101; PTX-133; PTX-148.

27

8. DOJ’s Refusal to Discuss Its Request with the Census Bureau

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1

240. Following the Census Bureau’s receipt of the December 12 Letter from DOJ,

2 the Census Bureau sought to meet with DOJ to discuss its stated need for block-level

3 citizenship data. PTX-4C at 1971; PTX-72. Dr. Jarmin emailed an initial response to the

4 December 12 Letter on December 22. PTX-72. In that letter, he advised Gary that “the best

5 way to provide P.L. 94-171 block-level data with citizen voting population by race and

6 ethnicity would be through utilizing a linked file of administrative and survey data the

7 Census Bureau already possesses. This would result in higher quality data produced at a

8 lower cost.” Id. In Dr. Jarmin’s December 22 letter, he suggested to Gary a “meeting of

9 Census and DOJ technical experts to discuss the details of this proposal.” Id.

10

241. On January 2, 2018, Dr. Jarmin and Gary exchanged emails about meeting the

11 following week. PTX-102. Although no date was set, Gary promised to “get back to” Dr.

12 Jarmin about the timing. Id.

13

242. However, on February 6, 2018, Dr. Jarmin reported to Undersecretary Karen

14 Dunn Kelley: “I spoke with Art Gary. He has spoken with DOJ leadership. They believe the

15 letter requesting citizenship to be added to the 2020 Census fully describes their request.

16 They do not want to meet.” PTX-3 at 2136.

17

243. The Administrative Record contains no evidence that before Secretary Ross

18 issued his March 26, 2018 Decision Memo, DOJ ever met with either the Census Bureau or

19 the Commerce Department to discuss the request in DOJ’s December 12 Letter.

20

9. Outside Stakeholders Weigh In

21

244. In early 2018, prior to issuing his Decision Memo, Secretary Ross conferred

22 with multiple external stakeholders, including academics and representatives of interest

23 groups, regarding the addition of a citizenship question to the Census. This input included

24 communications from: (1) Six former Directors of the Census Bureau, PTX-1 at 1057

25 (“There is a well-proven multi-year process to suggest and test new questions. We strongly

26 believe that adding an untested question on citizenship status at this late point in the

27 decennial planning process would put the accuracy of the enumeration and success of the

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1 Census in all communities at grave risk.”); (2) Members of the Census Bureau’s Census

2 Scientific Advisory Committee, PTX-1 at 794 (“We hold the strong opinion that including

3 citizenship in the 2020 Census would be a serious mistake which would result in a substantial

4 lowering of the response rate.”); and (3) various state officials, professional associations, and

5 other organizations expressing concern about the impact of the citizenship question on the

6 integrity of the 2020 Census. See e.g., PTX-1 at 787, 798, 1053, 1073, 1082, 1090, 1122,

7 1150, 1222, 1235, 1239, 1269; PTX-3 at 2281, 2284.

8

245. Numerous stakeholder letters also advised that a citizenship question was not

9 necessary for Section 2 VRA enforcement. See e.g., PTX-1 at 799 (letter from The

10 Leadership Conference on Civil and Human Rights); id. at 1122 (letter from national Jewish

11 organizations); PTX-3 at 2281 (letter from Constitutional Accountability Center).

12

246. In January and February 2018, before Secretary Ross issued the March 26

13 decision memo, the Leadership Conference on Civil and Human Rights, the Constitutional

14 Accountability Center, and more than 15 other external stakeholders and voting rights

15 experts, submitted letters to Secretary Ross explaining that that enforcement of Section 2 of

16 the VRA has never once previously depended upon having enumerated citizenship data since

17 the statute’s enactment in 1965. See, e.g., PTX-1 at 799, 1122; PTX-3 at 2281.

18

247. Defendants attempted to enlist stakeholders to express support for the

19 citizenship question, but had trouble doing so. PTX-71; PTX-4B at 137 (“We are trying to

20 find someone who can give a professional expression of support for the proposal in contrast

21 to the many folks we can find to give professional statements against the proposal”).

22

248. On February 13, 2018, Dr. Jarmin wrote to an individual at the American

23 Enterprise Institute (AEI): “We are trying to set up some meetings for Secretary Ross to

24 discuss the proposed citizenship question on the 2020 Census with interested stakeholders.

25 Most stakeholders will speak against the proposal. We’re looking for someone thoughtful

26 who can speak to the pros of adding such a question . . . .” PTX-4B at 138. That same day,

27 Michael Strain of the AEI responded: “None of my colleagues at AEI would speak favorably

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1 about the proposal.” Id. Dr. Jarmin then wrote to Under Secretary Kelley, “Please see the

2 thread below. Appears no one at AEI is willing to speak in favor of putting question on the

3 2020.” Id. at 137.

4

249. Although they were in the minority, some groups and individuals expressed

5 support for Secretary Ross’s proposal. PTX-1 at 1198 (letter from Senator Tom Cotton);

6 PTX-1 at 1199 (letter from Senator Ted Cruz); see also PTX-1 at 1203, 1206, 1261. Director

7 Jarmin reported that certain individuals associated with the Center for Immigration Studies

8 and the Heritage Foundation endorsed the addition of the citizenship question. PTX-1 at

9 1206, 1261; PTX-4C at 1645.

10

10. Secretary Ross’s March 26 Decision Memorandum

11

250. On March 26, 2018, Secretary Ross issued his formal decision memorandum

12 (Decision Memo) announcing and explaining his decision to adopt “Option D” (known in the

13 Census Bureau memoranda as “Alternative D”) and add a citizenship question to the

14 decennial census. PTX-26. The Decision Memo states that Secretary Ross “set out to take a

15 hard look” at the citizenship question “[f]ollowing receipt of the DOJ request” for it. PTX-26

16 at 1. Secretary Ross states that DOJ has requested CVAP data for census blocks “where

17 potential Section 2 violations are alleged or suspected, and DOJ states that the current data

18 collected under the ACS are insufficient in scope, detail, and certainty to meet its purpose

19 under the VRA.” Id.

20

251. The Decision Memo includes several statements that are inconsistent with the

21 Census Bureau’s unrefuted estimate that the citizenship question would cause a differential

22 drop in self-response rates of at least 5.1 percent between households with at least one

23 noncitizen and all-citizen households. PTX-26 at 3; see also PTX-101. These include:

24

 The statement that, with respect to “Option B” (the option of adding a citizenship

25

question, referred to in the Census Bureau memoranda as “Alternative B”) neither the

26

Census Bureau nor the concerned stakeholders could document that the response rates

27

would decline materially. PTX-26 at 3.

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1

 The statement that a former Chief Operating Officer of the Census Bureau confirmed

2

that to the best of his knowledge, “no empirical data existed on the impact of a

3

citizenship question on responses.” Id.

4

 Secretary Ross’s conclusion that “while there is widespread belief among many

5

parties that adding a citizenship question could reduce response rates, the Census

6

Bureau’s analysis did not provide definitive, empirical support for that belief.” Id. at

7

4.

8

 The statement that “there is no information available to determine the number of

9

people who would in fact not respond due to a citizenship question being added, and

10

no one has identified any mechanism for making such a determination.” Id. at 5.

11

252. The Decision Memo sought to justify the selection of Option D by citing

12 purported “[a]dditional empirical evidence about the impact of sensitive questions on survey

13 response rates… from the SVP of Data Science at Nielsen.” Id. at 6. The only evidence in the

14 Administrative Record from this Nielsen representative are notes from a telephone call three

15 days earlier between her (Christine Pierce) and Secretary Ross. Those notes indicate that

16 “Ms. Pierce stated that her biggest concerns [sic] was that the reinstatement of a citizenship

17 question could lead to a lower response rate.” PTX-1 at 1276. During that call, Pierce also

18 “noted the importance of testing questions.” Id. There is no “empirical evidence” in the

19 Administrative Record at all from Pierce regarding the citizenship question.

20

253. Secretary Ross also asserts in his memo that the citizenship question has been

21 “well tested” because it has been on the ACS since 2005. PTX-26 at 2. The Secretary does

22 not discuss the Census Bureau’s usual process of testing new questions before placing them

23 on the census. Nor does the memo identify any other testing standards that apply to addition

24 of the citizenship question or discuss whether those standards have been met.

25

254. The Decision Memo asserts that asking the citizenship question of all people,

26 “may eliminate the need for the Census Bureau to have to impute an answer for millions of

27 people.” Id. at 5. The Memo does not address the Census Bureau’s estimate that, with a

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1 citizenship question on the census, it will have to impute the citizenship data of 13.8 million

2 people. PTX-24 at 2; see also PTX-133 at 7-10.

3

255. Secretary Ross also states that Option D “would maximize the Census Bureau’s

4 ability to match the decennial census responses with administrative records,” PTX-26 at 4, so

5 as to allow for “more complete” citizenship data. The memo does not address the Census

6 Bureau’s analysis showing that adding a citizenship question will drive down the self-

7 response rate and put more households into NRFU operations, thereby reducing the Census

8 Bureau’s ability to match survey responses with administrative records and resulting in less

9 accurate citizenship data. PTX-25 at 4.

10

256. The Decision Memo ultimately states that the Department of Commerce

11 prioritizes the goal of “obtaining complete and accurate [CVAP] data” over all else, and

12 concludes that adding the citizenship question is the best way to achieve this goal. PTX-26 at

13 1, 7. The memo, however, points to no evidence to refute the Census Bureau’s analysis

14 which showed that use of a citizenship question would result in less accurate data than

15 administrative records alone. PTX-22, PTX-25.

16

257. The Decision Memo does, however, make the following assertion:

17

[P]lacing the question on the decennial census and directing the Census

Bureau to determine the best means to compare the decennial census

18

responses to administrative records will permit the Census Bureau to

determine the inaccurate response rate for citizens and noncitizens alike using

19

the entire population. This will enable the Census Bureau to establish, to the

20

best of its ability, the accurate ratio of citizen to noncitizen responses to

impute for that small percentage of cases where it is necessary to do so.

21 PTX-26 at 5.

22

258. Nowhere in the Administrative Record does the Census Bureau state that adding

23 a citizenship question would increase the accuracy of its estimate of inaccurate citizenship

24 responses. Nor is it apparent why the inaccuracy rate of responders would help impute the

25 citizenship data of nonresponders. If actual citizenship is benchmarked to administrative

26 records, and the Bureau would use those records in any event, then adding a citizenship

27 question to the decennial census would not assist in the imputation.

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1

259. Finally, the Decision Memo does not discuss whether the Census Bureau’s

2 NRFU and imputation processes are likely substantially to mitigate any drop in self-response

3 caused by the citizenship question.

4

11. Testing of the Citizenship Question

5

260. The Administrative Record contains no evidence that the cognitive and field

6 testing that are part of the usual process for adding new questions to the census, as described

7 in the Census Bureau’s answer to Question 31 and in other documents in the Administrative

8 Record, were performed. Moreover, the Administrative Record contains no evidence that

9 Defendants considered any testing requirements from the Office of Management and Budget.

10

261. The Administrative Record does not include any information about what testing

11 was performed, or how the citizenship question performed on that testing, before it was

12 added to the ACS.

13

262. There is also no indication that Defendants considered obtaining any kind of

14 waiver of any applicable agency guidelines regarding testing, or that the Census Bureau

15 publicly noticed and provided a period for public comment about the citizenship question

16 before Secretary Ross made the decision to add it to the Census, as required by the Census

17 Bureau’s “well-established” process described with the Census Bureau’s answer to Question

18 31, and in other documents in the Administrative Record. See PTX-3 at 2236-37; PTX-4A at

19 155-56; PTX-4D at 812; PTX-135; PTX-141.

20

12. The Purpose and Timing of Secretary Ross’s Decision

21

263. The weight of the evidence clearly shows that Secretary Ross made the decision

22 to add a citizenship question before knowing whether DOJ had any need or even desire to

23 add the question. In other words, Secretary Ross did not decide to add the citizenship

24 question to the decennial census to aid in enforcement of Section 2 of the VRA.

25

264. There is no writing of any kind either in the Administrative Record authored by

26 the Secretary or anyone at the Commerce Department (or anyone else) that expressly and

27 directly describes the reasons why the Secretary wanted to add a citizenship question as early

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1 as the first quarter of 2017. The record reflects, however, that Secretary Ross was urged to

2 include the citizenship question by Kobach, among others, to facilitate the exclusion of

3 noncitizens from the population count for congressional apportionment. See, e.g., PTX-19 at

4 2, PTX-55, PTX-437 at 2, PTX-448, PTX-449.

5

265. The following facts are particularly relevant: (1) Secretary Ross admits that he

6 discussed a citizenship question with “senior administration officials” before he became

7 Secretary of Commerce; (2) Steve Bannon, the Chief Strategist and Senior Counselor to the

8 President, then asked him to speak with Kobach, who wanted a citizenship question on the

9 census to exclude noncitizens from the apportionment count rather than for VRA

10 enforcement purposes; (3) on May 24, 2017, following Secretary Ross’s meeting with David

11 Langdon regarding the citizenship question, Langdon exchanged emails with the Census

12 Bureau and received from them a 1988 DOJ memo about excluding “illegal immigrants”

13 from the census count, and; (4) by August of 2017, when Secretary Ross’s staff was

14 preparing “a memo and full briefing…on a citizenship question” (which was not disclosed in

15 the initially submitted administrative record), Commerce Department legal counsel emailed

16 that their “hook” was that the Department “do[es] not make decisions on how the

17 [citizenship] data will be used for apportionment,” PTX-437 at 2.

18

266. By contrast, prior to the December 12 Letter, the Administrative Record

19 includes no communications at all from Secretary Ross or any other Commerce Department

20 officials indicating that they wanted to add the citizenship question for the purpose of aiding

21 VRA enforcement. The only implicit reference to the VRA in the Administrative Record

22 prior to December 12 is the LULAC v. Perry court opinion that Neuman emailed to Secretary

23 Ross, and that Comstock emailed to Langdon in May 2017 as the Commerce Department

24 was investigating whether it could request the citizenship question itself. There is no

25 discussion in the record about the meaning of this case.

26

267. The fact that the Commerce Department began exploring ways to add the

27 citizenship question without getting a request from another agency when it appeared no

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1 request was forthcoming strongly suggests that aiding DOJ’s Section 2 enforcement was not

2 the real reason behind the decision to add the question. PTX-370. The fact that Comstock

3 attempted to solicit a request for the citizenship question from DHS after initially being

4 turned away by DOJ further demonstrates that the Department of Commerce’s reasons for

5 wanting to add the citizenship question had nothing to do with VRA enforcement. Id.

6

268. The finding that Secretary Ross did not add the citizenship question for Section

7 2 enforcement is also supported by a dearth of evidence explaining why he would go to such

8 lengths to persuade DOJ to request the question despite the agency’s initial refusals.

9

269. Defendants’ decision-making process further supports the finding that Secretary

10 Ross was not motivated by VRA enforcement. The Administrative Record contains no

11 disclosure by the Commerce Department to the Census Bureau about the intent to add a

12 citizenship question until after the December 12 Letter was delivered, despite the fact that

13 Secretary Ross and his staff spent the better part of 2017 communicating about the

14 citizenship question and strategizing about how to elicit a request for it. While Secretary

15 Ross is not obligated to inform the Census Bureau about all policy discussions he has with

16 his staff, one would expect an open-minded decision-maker to consult with the experts at the

17 Census Bureau early on to learn more about the consequences of adding the citizenship

18 question to the census and to allow for the requisite testing to take place.

19

270. It is also highly implausible that Secretary Ross’s true purpose was Section 2

20 enforcement because, as set forth in Part IV.C.10, supra, and discussed in greater detail in

21 Part IV.E.2.a, infra, his Decision Memo includes statements plainly at odds with the evidence

22 in the Administrative Record.

23

271. Finally, Defendants’ initial failure to disclose the full administrative record

24 suggests bad faith in disclosing the true basis of Secretary Ross’s decision. Defendants now

25 concede that the Administrative Record consists of over 13,000 pages of documents, even

26 though their initial submission contained only 1,320 pages. See Joint Pretrial Statement 11-

27 13. Furthermore, the initial submission of the Administrative Record mischaracterized

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1 Secretary Ross’s decision-making process and omitted critical information about the

2 circumstances surrounding the DOJ request letter. It is also noteworthy that Defendants

3 initially failed to produce the Census Bureau’s answer to Question 31 (and produced only the

4 Commerce Department’s more favorable version regarding question testing), and that the

5 Administrative Record includes correspondence between Ross and Comstock expressing

6 caution about what ends up in the Administrative Record. PTX-362.

7

272. Together, this evidence establishes that Defendants intended to use the VRA

8 enforcement as a pretext for adding the citizenship question when VRA enforcement was not,

9 in fact, their true purpose. In sum, Plaintiffs have made a clear showing that (1) Secretary

10 Ross acted in bad faith in disclosing the basis of his decision, and (2) Defendants acted in bad

11 faith in compiling the Administrative Record.

12

D. Findings of Fact Based on Extra-Record Evidence

13

1. Secretary Ross’s Decision-Making Process

14

a. Secretary Ross’s Early Interest in the Citizenship Question

15

273. Extra-record evidence confirms that Secretary Ross talked to Steve Bannon

16 about the citizenship question in the spring of 2017. Bannon asked Secretary Ross to speak

17 with Kobach about adding a citizenship question to the decennial census. RFA response 18 (ECF 146-6 at 3); 18 RFA response (ECF 146-3 at 31). Secretary Ross’s conversation with

19 Kobach about adding a citizenship question to the 2020 Census came before any request

20 from DOJ to add a citizenship question to the decennial census. RFA response (ECF 146-3 at

21 39); RFA Response (ECF 146-6 at 2-3).

22

274. Around that same time, Comstock set out to come up with a “legal rationale” to

23 support the Secretary’s request to add a citizenship question. Comstock Dep. 266:4-12 (ECF

24 175-3). Comstock believed that he needed another agency to request to add the question

25 because OMB and the Paperwork Reduction Act required the Commerce Department to

26 27 18 Where only one ECF docket number is listed, the docket refers to Case No. 18-cv-01865.

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1 “justify” why a citizenship question was needed, and Comstock understood simply saying

2 that the Secretary wanted to include the question would not “clear [the] legal thresholds.” Id.

3 at 153:6-154:11. He testified that it was his job to “help [the Secretary] find the best

4 rationale” for adding the question, because “[t]hat’s what a policy person does.” Id. at 266:4-

5 267:6.

6

275. According to Comstock, he did not “need to know what [the Secretary’s]

7 rationale might be, because it may or may not be one that is . . . legally-valid.” Id. at 267:10-

8 14. In fact, Comstock testified that the Secretary never told him why he wanted to add a

9 citizenship question to the census. Id. at 251:1-254:17. Teramoto and Department of

10 Commerce Undersecretary Kelley similarly testified that they had no knowledge of why the

11 Secretary wanted to add a citizenship question. Teramoto Dep. 32:5-23 (ECF 175-9); Kelley

12 Dep. 39:3-40:1 (ECF 175-6).

13

276. Even outside of the Administrative Record, no writing produced in discovery

14 authored by the Secretary or anyone else describes the reasons why the Secretary wanted to

15 add a citizenship question as early as the first quarter of 2017.

16

277. When Comstock contacted DOJ on May 4, 2017 for the purpose of adding a

17 citizenship question to the 2020 Census, he was not specifically seeking to promote

18 enforcement of the VRA. See Comstock Dep. 167:8-172:5.

19

278. On July 25, 2017, Secretary Ross had a further telephone conversation with

20 Kobach concerning the addition of the citizenship question to the 2020 Census. RFA

21 Response (ECF 146-3 at 40).

22

279. Comstock, Teramoto, and Undersecretary Kelley have all denied having any

23 recollection of their September 5 meeting with Secretary Ross to discuss adding the

24 citizenship question. Comstock Dep. 221:1-16; Teramoto Dep. 60:6-61:11; Kelley Dep.

25 105:5-107:15.

26

280. Secretary Ross has publicly claimed that “what triggered the investigation, the

27 real study, what triggered the process that led to the determination to [add the citizenship

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1 question] was the letter from the Department of Justice.” PTX-472. Secretary Ross testified

2 before the House Committee of Ways and Means on March 22, 2018. PTX-346. When asked

3 whether the Department of Commerce planned to add a citizenship question to the 2020

4 Census, Secretary Ross began his response by stating, “Department of Justice, as you know,

5 initiated the request for inclusion of the citizenship question.” Id.

6

b. Role of DOJ in Requesting the Citizenship Question

7

281. The Census Bureau informed federal agencies that they were to submit requests

8 for 2020 Census content by July 1, 2016. New York Tr. 995:18-996:3 (Abowd); see also

9 PTX-214. DOJ, however, did not contact the Census Bureau about adding a citizenship

10 question until December 2017. New York Tr. 996:4-10 (Abowd). Indeed, prior to the

11 December 2017 request, DOJ had never communicated to the Census Bureau that ACS

12 CVAP data was not ideal for DOJ’s VRA enforcement purposes. Id. at 996:19-23 (Abowd).

13

282. John Gore, who was responsible for drafting the DOJ request letter, was the

14 Acting Assistant Attorney General (AAAG) for Civil Rights at DOJ at the time. Gore Dep.

15 18:20-19:3 (ECF 175-4). One of the sections within the DOJ Civil Rights Division is the

16 Voting Section, which enforced Section 2 of the VRA. Id. at 19:7-14.

17

283. Prior to becoming AAAG, Gore was previously an attorney in private practice.

18 Id. at 14:20-22. As an attorney in private practice, he litigated numerous cases under the

19 VRA on behalf of defendants. Id. at 14:20-16:1. The issue of the adequacy of CVAP data

20 never came up in any of the VRA cases litigated by Gore and he never took the position a

21 plaintiff’s block-level CVAP data was insufficient because it was based on sample survey

22 data rather than a “hard count” from the decennial census. Id. at 16:19-17:10.

23

284. Gore testified he does not personally believe that it is necessary for DOJ’s VRA

24 enforcement efforts to collect CVAP data through the census questionnaire. Id. at 300:8-11.

25 He also stated that he has no experience drawing districts for the purposes of complying with

26 the preconditions for VRA liability set forth in Thornburg v. Gingles, 478 U.S. 30 (1986), or

27 using block-level data about the characteristics of populations. Gore Dep. 17:21-18:15.

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1

285. Gore became involved in the issue of the citizenship question through

2 conversation with Hankey and then Attorney General Sessions. Id. at 73:2-75:14. On or

3 around Labor Day of 2017, Gore had a conversation with Sessions regarding a citizenship

4 question. Id. at 83:16-84:1.

5

286. Beginning roughly in mid-September, the Commerce Department initiated

6 direct conversation with Gore. Id. at 91:18-92:6, 94:17-95:5. Throughout the autumn of

7 2017, Gore spoke with three individuals from the Commerce Department about a citizenship

8 question: Peter Davidson, James Uthmeier, and Wendy Teramoto. Id. at 92:18-94:3. None of

9 these conversations were initiated by Gore or anyone in DOJ’s Civil Rights Division. Id. at

10 94:17-95:5.

11

287. Gore was first contacted by Davidson in mid-September, who called Gore to

12 discuss adding the citizenship question to the 2020 Census. Id. at 92:18-93:6, 97:19-98:3.

13 Davidson asked Gore to reach out to Teramoto. Id. at 96:4-97:14. The “DOJ-DOC” issue

14 referred to in Gore’s email to Teramoto was the addition of a citizenship question to the

15 2020 Census. Id.; see also PTX-59. Gore and Teramoto spoke about the citizenship question

16 on or about September 15, 2017, Gore Dep. 102:2-103:4, however Teramoto testified that

17 she had no recollection of this conversation, Teramoto Dep. 74:22-77:20.

18

288. On or about September 22, 2017, Gore spoke on the phone with Uthmeier about

19 adding a citizenship question to the 2020 Census. Gore Dep. 118:15-17. After their call,

20 Gore was also provided with Uthmeier’s August 11 memorandum discussing the addition of

21 a citizenship question. Id. at 118:15-119:4. With the August 11 memorandum, Gore also

22 received a handwritten note from Uthmeier. Id. This handwritten note from Uthmeier

23 contained information that DOJ considered in drafting the final letter requesting a citizenship

24 question. Id. at 123:16-124:2. That note was not produced in the Administrative Record and

25 Defendants withheld it on the basis of privilege.

26

289. On or about November 1, 2017, Gore wrote the initial draft of the December 12

27 Letter. Id. at 126:2-127:2, 127:12-17. The only career staffer in the Voting Rights Section to

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1 provide input at any stage of drafting the December 12 Letter was Chris Herren, Chief of

2 DOJ’s Voting Section. Id. at 151:21-153:22. In early November, Gore emailed Herren,

3 copying Ben Aguiñaga. Id. at 126:2-15. Gore attached the first draft of the letter that he had

4 written requesting a citizenship question be added to the 2020 Census questionnaire and

5 requested Herren’s input. Id. at 126:13-127:2.

6

290. Herren, Aguiñaga, and Bethany Pickett provided substantive feedback on this

7 first draft. Id. at 136:21-137:8. At the time, Aguiñaga and Pickett were political appointees in

8 the front office of the Civil Rights Division who began working there in 2017, having

9 graduated from law school around 2015. Id. at 133:9-134:11.

10

291. Gore does not recall sharing subsequent drafts of the December 12 Letter with

11 Herren or receiving any additional feedback from him. Id. at 444:17-445:1. Gore has no

12 recollection of receiving any other input from career Civil Rights Division staff. Id. at

13 152:12-153:5. The only other people in DOJ’s Civil Rights Division from whom Gore can

14 recall soliciting or receiving input on the draft December 12 Letter were Pickett and

15 Aguiñaga. Id. at 136:21-137:8.

16

292. In mid-November Gore discussed adding a citizenship question with Rachael

17 Tucker, then counsel in the Office of the Attorney General, and Robert Troester, then

18 Associate Deputy Attorney General. Id. at 141:6-14. Neither Tucker nor Troester had

19 experience as counsel in VRA cases, litigating Section 2 redistricting cases involving the use

20 of CVAP data, or otherwise assessing the reliability of CVAP data used in VRA litigation.

21 Id. at 140:1-17.

22

293. In late November 2017, again Gore solicited and received edits on the draft

23 letter requesting a citizenship question from Tucker and Troester. Id. at 138:12-142:17. Gore

24 did not receive substantive edits from anyone besides Tucker and Troester in the last few

25 days before the December 12 Letter was sent. Id. at 146:7-11.

26

294. Final authorization to send the letter came from either Tucker or Troester on

27 behalf of Attorney General Sessions in mid-December. Id. at 159:18-160:18. Attorney

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1 General Sessions ultimately made the decision for DOJ to request that the Census Bureau

2 ask a citizenship question on the Census. Id. at 442:13-19.

3

295. Attorney General Sessions subsequently directed DOJ to refuse to meet with

4 the Census Bureau to discuss DOJ’s request in the December 12 Letter. Id. at 271:21-272:13.

5

296. Dr. Hermann Habermann described meetings with a requesting agency, such as

6 the meeting Director Jarmin requested with DOJ on December 22, 2017, as “normal Census

7 Bureau procedure. [Such a meeting] allows the technical experts to better understand how

8 the Census Bureau can meet the needs of the proposers.” PTX-821 at ¶¶ 28-29. Dr. Jarmin

9 similarly testified that it was typical for the Census Bureau to meet with federal agencies

10 requesting data in order to understand their needs and come up with the best way to meet

11 those needs. Jarmin Dep. 33:1-15, 36:14-20 (ECF No. 175-5). Dr. Jarmin did not agree with

12 DOJ’s reasoning for refusing to meet because the Census Bureau would have liked

13 additional information on how DOJ used CVAP data. Id. at 101:9-20.

14

297. Dr. Abowd also observed that it is “very unusual” for an agency to make a

15 request to the Census Bureau to collect data through the census but then refuse to meet to

16 discuss the technical aspect of that data request. Tr. 1055:8-12 (Abowd). He also stated that

17 it is “very unusual” for the head of a cabinet agency personally to direct staff not to meet

18 with the Census Bureau to discuss the Census Bureau’s ideas for producing better quality

19 data for that agency at a lower cost. Id. at 1055:13-17 (Abowd).

20

298. It is unknown whether the block-level CVAP data collected with a citizenship

21 question on the 2020 Census will have a margin of error any more precise than the CVAP

22 data on which the Department of Justice currently relies. New York Tr. 1045:19-1046:8

23 (Abowd). Gore is not aware of any communications between DOJ and the Census Bureau

24 about whether or not adding a citizenship question to the census would in fact produce data

25 that has smaller margins of error than the citizenship data currently used by DOJ, due to

26 required disclosure avoidance techniques. Gore Dep. 228:11-20, 233:4-234:2.

27

c. Role of the Census Bureau in Evaluating the Citizenship Question

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1

299. Dr. Abowd first learned about DOJ’s request to add a citizenship question via

2 email on December 15, 2017. New York Tr. 879:9-17 (Abowd). Following receipt of the

3 December 12 Letter, Dr. Jarmin asked Dr. Abowd to assemble a team of technical experts,

4 nicknamed the SWAT team, to discuss how to respond to the DOJ request. Id. at 878:23-

5 880:5 (Abowd). The SWAT team specifically looked into using administrative records in

6 lieu of a citizenship question on the census because Dr. Jarmin believed that, under Title 13,

7 the Bureau is supposed to use administrative records in lieu of direct collection when

8 possible. Jarmin Dep. 59:9-60:7. A group of Census Bureau decision-makers in collaboration

9 with Department of Commerce Undersecretary Kelley ultimately decided not to conduct a

10 randomized controlled trial of the content of the citizenship question. New York Tr. 925:19-

11 22 (Abowd).

12

d. January 19 Memo

13

300. The January 19 Memo to Secretary Ross summarized the opinions of the

14 Census Bureau senior executive staff and was based on the SWAT team’s work and other

15 Census Bureau research. Id. at 880:10-18 (Abowd). The January 19 Memo memorializes the

16 Census Bureau’s credible, quantitative evidence, as well as its analysis, that adding a

17 citizenship question to the 2020 Census could be expected to lower the self-response rate in

18 households that may contain noncitizens. Id. at 881:4-10 (Abowd).

19

301. The views in the January 19 Memo are a summary of the technical work

20 performed by the SWAT team and includes contributions made by other senior executives at

21 the Census Bureau. Id. at 883:4-6 (Abowd). Dr. Abowd agrees with the conclusions in the

22 January 19 Memo, id. at 883:7-9 (Abowd), which were ultimately reviewed and approved by

23 Dr. Jarmin, id. at 883:10-12 (Abowd).

24

302. The analyses in section B(1), (2), and (3) of the memo all support the

25 conclusion that the citizenship question would cause a lower self-response rate to the 2020

26 Census. Id. at 890:3-891:3 (Abowd). At the time the memo was released, 5.1 percent was the

27 Census Bureau’s best estimate of the effect of adding a citizenship question in terms of the

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1 question’s differential impact of self-responses of noncitizen households as compared to

2 citizen households. Id. at 893:12-22 (Abowd). A reduction in self response of 5.1 of

3 noncitizen households would send more than a million additional people into NRFU. Id. at

4 894:1-16 (Abowd).

5

303. The lower self-response rates resulting from adding a citizenship question will

6 increase the cost of conducting the 2020 Census. Id. at 950:10-13 (Abowd). This is because

7 more people will have to be enumerated through NRFU, which costs money. Id. at 950: 15-

8 20 (Abowd). The Census Bureau’s estimate that NRFU costs will increase by $27.5 million

9 is conservative because, among other things, the differences in self-response rates to the

10 2020 Census between citizen and noncitizen households is likely to be even greater than

11 estimated in the memo. Id. at 951:11-19 (Abowd). Another reason this figure represents a

12 lower-bound cost estimate is that it may take more NRFU visits to enumerate households

13 that do not respond due to the citizenship question than assumed. Id. at 952:2-6 (Abowd).

14 Moreover, this cost estimate does not incorporate any estimate about the effect of a

15 citizenship question on reducing self-response rates from all-citizen households. Id. at 952:7-

16 11 (Abowd). Finally, this figure does not capture increased communication campaign costs

17 that may be needed as a result of the citizenship question. Id. at 952:12-16 (Abowd).

18

304. Citizenship status is a characteristic where administrative records tend to be

19 more accurate than survey responses. Id. at 955:21-24 (Abowd). In other words, when an

20 ACS response says that a person is a citizen, but the administrative records says the person is

21 not a citizen, the most likely conclusion is that the person is, in fact, a noncitizen. Id. at

22 955:6-20 (Abowd). In fact, for more than 30 percent of noncitizens who provide a response

23 to the ACS citizenship question, the response is incorrect. Id. at 956:16-21 (Abowd).

24

305. The Bureau has no empirical basis to believe that noncitizens for whom a

25 response is provided to the citizenship question on the census will have more accurate

26 responses than they do to the citizenship question on the ACS. Id. at 956:22-957:2 (Abowd).

27 Instead, the Census Bureau found strong indications that responses by noncitizens to a

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1 citizenship question on the 2020 Census will be even less accurate than they have

2 historically been on the ACS. Id. at 957:3-7 (Abowd).

3

306. The Census Bureau still hasn't made any determination about how it will

4 address disagreement between survey responses and the administrative records when

5 producing block-level CVAP data used by the Department of Justice after the 2020 Census.

6 Id. at 957:8-13 (Abowd). The Bureau has concluded, however, that using administrative

7 records would deliver higher quality block-level CVAP data by race and ethnicity than

8 including a citizenship question on the census. Id. at 958:19-22 (Abowd). The Census

9 Bureau's proposal to generate such block-level CVAP data using administrative records

10 rather than a citizenship question had the backing of the Census Bureau's redistricting office.

11 Id. at 958:24-959:3 (Abowd).

12

307. In the January 19 Memo, the Census Bureau concluded that a citizenship

13 question on the 2020 Census would be a sensitive one for Hispanics. Id. at 917:4-7 (Abowd).

14 This memo also provided empirical support for the conclusion that adding a citizenship

15 question will reduce self-response rates to the 2020 Census. Id. at 922:4-10 (Abowd). Dr.

16 Jarmin agrees with the findings in the January 19 Memo, including that using administrative

17 records would provide higher quality CVAP data at a lower cost than a citizenship question

18 on the 2020 Census. Jarmin Dep. 65:22-67:2, 115:20-117:15.

19

e. The Set of 35 Questions Answered by the Census Bureau

20

308. After the Census Bureau communicated its views to Secretary Ross, the

21 Commerce Department sent a list of 35 follow-up questions to the Census Bureau. New

22 York Tr. 1004:19-25 (Abowd). Dr. Abowd was charged with making sure that the responses

23 to the 35 questions were accurate. Id. at 1005:23-1006:1 (Abowd).

24

309. As of March 1, 2018, it was Dr. Abowd’s understanding that adding a new

25 question to the decennial census involves extensive testing, review, and evaluation. Id. at

26 1007:7- 9 (Abowd). The answer to Question 31 found at AR 10900 summarized the Census

27 Bureau and OMB’s formal process for making content changes to the census. Id. at 1006:2-

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1 1008:8 (Abowd); Jarmin Dep. 137:6-138:21; see also PTX-4D at 1845-46; PTX-133 at 21-

2 22.

3

310. Dr. Abowd did not write the answer to Question 31 that appeared in the initial

4 administrative record, he does not know who wrote it, and it does not appear in the last

5 version of the document in the possession of the Census Bureau. New York Tr. 1010:12-

6 1011:3 (Abowd). The text in that document is not the text that the Census Bureau transmitted

7 to the Commerce Department, id. at 1014:18-23 (Abowd), and does not represent the final

8 Census Bureau version. Jarmin Dep. 137:6-16. Dr. Jarmin also does not know who wrote the

9 answer to Question 31 that appears in Defendants’ initial administrative record submission.

10 Id. at 211:19-21.

11

f. February 12 Meeting Between Census Bureau and Secretary Ross

12

311. Dr. Abowd met with Secretary Ross to discuss the January 19 Memo on

13 February 12, 2018. New York Tr. 883:17-19 (Abowd). In addition to Dr. Abowd, the Census

14 Bureau staff attending the meeting were Dr. Jarmin, Dr. Llamas, Associate Director for the

15 2020 Census Al Fontenot, Assistant Director for the 2020 Census Jim Treat, and Special

16 Assistant to the Director Krista Jones. Tr. 824:10-18 (Abowd). The February 12 meeting also

17 included several members of Secretary Ross’s staff. Id.

18

312. The February 12 meeting was the only meeting Dr. Abowd had with Secretary

19 Ross to discuss the citizenship question before he issued the Decision Memo. New York Tr.

20 884:11-14 (Abowd). Prior to the meeting with Secretary Ross, Dr. Abowd had a pre-meeting

21 with Undersecretary Kelley to discuss the memo. Id. at 883:20-884:1 (Abowd). During that

22 meeting, she did not express any disagreements with the analysis in the January 19 Memo.

23 Id. at 884:2-5 (Abowd).

24

313. At the February 12 meeting, Ross quickly dismissed Alternative A (not

25 collecting block-level CVAP data) as a possibility. Tr. 826:20-25 (Abowd).

26

314. Dr. Abowd informed Secretary Ross during the February 12 meeting that the

27 Census Bureau thought that the difference in self-response rates on the ACS and the census,

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1 when comparing citizen and noncitizen households, was related to the citizenship question

2 on the ACS. New York Tr. 922:11-17 (Abowd). He also explained the Census Bureau’s

3 conclusion that using administrative records would better meet DOJ’s stated uses than

4 relying on a citizenship question on the census. Id. at 959:12-19 (Abowd).

5

315. After the February 12 meeting, Dr. Jarmin told Dr. Abowd that Secretary Ross

6 and Undersecretary Kelley wanted Abowd to evaluate Alternative D (using both

7 administrative records and citizenship question responses). Id. at 965:25-966:5 (Abowd).

8

g. March 1 Memo

9

316. The views in the March 1 memo are those of the senior executive staff at the

10 Census Bureau. New York Tr. 966:23-25 (Abowd). The Census Bureau did not recommend

11 Alternative D and still does not recommend Alternative D. Id. at 967:16-21 (Abowd).

12 Instead, the memo concluded that using administrative records alone would be more accurate

13 than attempting to combine administrative records and survey responses under Alternative

14 D. Id. at 988:12-16 (Abowd).

15

317. As the memo explains, survey-collected citizenship data would not be reliable

16 for many of the people falling in the gaps in the administrative records. Id. at 973:23-974:3

17 (Abowd). The memo specifically states that citizenship survey data gathered under

18 Alternative D would be of “suspect quality” whereas administrative data on citizenship is

19 “high quality.” Id. at 974:12-20 (Abowd).

20

318. Accordingly, for the portion of the population that cannot be linked to

21 administrative records, it would be more accurate to impute/model their citizenship status

22 based on administrative records (Alternative C) than to obtain the information through their

23 survey responses (Alternative D). Id. at 974:22-975:9 (Abowd). This is the view of both Dr.

24 Abowd and the Census Bureau. Id. at 974:22-975:15.

25

319. Moreover, under Alternative D, due to the lower quality personal data on

26 census responses from an increased number of households going through NRFU, there will

27 be a reduction in the number of individuals whom the Census Bureau can link to

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1 administrative records. Id. at 969:2- 23 (Abowd). In other words, the number of individuals

2 that could be matched to administrative records that contain citizenship information would

3 be higher under Alternative D than under Alternative C. Id. at 975:17-21 (Abowd).

4

320. The Census Bureau also concluded in this memo that Alternative C is cheaper

5 than Alternative D. Id. at 988:9-11 (Abowd).

6

321. These analyses and conclusions were communicated to Secretary Ross before

7 he issued his Decision Memo. Id. at 988:17-19 (Abowd).

8

h. Secretary Ross’s March 26 Decision Memorandum

9

322. Although Secretary Ross repeatedly claims in the Decision Memo that there

10 was a lack of evidence that the citizenship question would lower self-response rates, Dr.

11 Abowd provided Secretary Ross with credible, quantitative evidence that doing so would

12 lower the self-response rate for households that contain a noncitizen. Tr. 1059:16-21

13 (Abowd).

14

323. The Decision Memo also states that Option D will provide more “complete and

15 accurate” citizenship data than using administrative records alone. PTX-26 at 5, 7. However,

16 the Census Bureau’s analysis concluded that adding a citizenship question is not necessary to

17 provide complete and accurate data in response to the Department of Justice’s request. Tr.

18 1063:18-22 (Abowd).

19

324. The Decision Memo stated:

20

Finally, placing the question on the decennial census and directing the Census

Bureau to determine the best means to compare the decennial census

21

responses to administrative records will permit the Census Bureau to

determine the inaccurate response rate for citizens and noncitizens alike using

22

the entire population. This will enable the Census Bureau to establish, to the

23

best of its ability, the accurate ratio of citizen to noncitizen responses to

impute for that small percentage of cases where it is necessary to do so.

24 PTX-26 at 5. However, as of March 26, 2018, the Census Bureau had not analyzed these

25 presumptions. New York Tr. 977:25-978:7 (Abowd). The presumptions were never

26 discussed with Dr. Abowd and the Census Bureau does not agree with them. Id. at 976:18-

27 977:24 (Abowd). In fact, adding a citizenship question will make it more difficult for the

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1 Census Bureau to establish the accurate ratio of citizen to noncitizen responses to impute. Tr.

2 1061:8-11 (Abowd).

3

325. The March 26 Decision Memo states that “no one has identified any

4 mechanism” for determining whether the citizenship question would cause a drop in self-

5 response. PTX-26 at 5. There were, however, several mechanisms available to determine

6 whether the citizenship question would cause people not to participate in the census. Tr.

7 1061:23-1062:11 (Abowd). One such mechanism was the statistical analysis performed by

8 the Census Bureau. Id. at 1061:23-1062:3 (Abowd). Another mechanism would have been

9 an RCT, which the Census Bureau could have conducted, but did not. Id. at 1062:4-11

10 (Abowd). A group-of decision-makers in collaboration with Undersecretary Kelley decided

11 not to conduct a randomized controlled trial of the content of the citizenship question. New

12 York Tr. 925:19-22 (Abowd).

13

2. Testing Requirements for New Questions

14

a. The Census Bureau’s Statistical Quality Standards

15

326. The Census Bureau’s Statistical Quality Standards set forth the Bureau’s

16 internal standards, guidelines, and requirements on pretesting questionnaires and data

17 collection instruments. PTX-205; Tr. 82:6-19 (O’Muircheartaigh), 832:1-833:8 (Abowd).

18 The Statistical Quality Standards apply when new questions are added to a data collection

19 instrument or existing questions are revised. PTX-205 at 18.

20

327. Sub-Requirement A2-3.3 of the Statistical Quality Standards requires that

21 “[d]ata collection instruments and supporting materials must be pretested with respondents

22 to identify problems (e.g., problems related to content, order/context effects, skip
instructions, formatting, navigation, and edits) and then refined, prior to implementation, 23
based on the pretesting results.” Id. at 18; Tr. 82:9-84:13 (O’Muircheartaigh), 833:11-18 24
(Abowd). 25
328. Under Sub-Requirements A2-3.3-1c and A2-3.3-1d, pretesting must be 26
performed when “Review by cognitive experts reveals that adding pretested questions to an 27

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1 existing instrument may cause potential context effects” and when “An existing data

2 collection instrument has substantive modifications (e.g., existing questions are revised or

3 new questions added).” PTX-205 at 18.

4

329. One exception to the pretesting requirement of the Statistical Quality Standards

5 is that, “On rare occasions, cost or schedule constraints may make it infeasible to perform
6 complete pretesting. In such cases, subject matter and cognitive experts must discuss the
7 need for and feasibility of pretesting. The program manager must document any decisions
8 regarding such pretesting, including the reasons for the decision. If no acceptable options for pretesting can be identified, the program manager must apply for a waiver.” Id.; Tr. 833:19-
9 834:7, 1046:18- 1047:19 (Abowd).
10 330. Another exception is that, “Pretesting is not required for questions that
11 performed adequately in another survey.” PTX-205 at 18; Tr. 833:19-834:7, 1047:12-19
12 (Abowd). Those and other similar pretesting standards are used in the survey methodology
13 and data collection profession more generally. Tr. 84:19-21 (O’Muircheartaigh).
14 b. OMB’s Standards and Guidelines for Statistical Surveys
15 331. Under Congress’s direction, the Office of Management and Budget (OMB) has
16 also issued standards for designing, developing, and pretesting survey content. PTX-821 at
17 ¶¶ 55-56; PTX-262; PTX-266; PTX-267; PTX-612. The OMB-promulgated standards for
18 pretesting content on data collection instruments can be found in the OMB Standards and
19 Guidelines for Statistical Surveys. PTX-266.

20

332. The Census Bureau must follow the OMB Standards and Guidelines for

21 Statistical Surveys when preparing for and implementing the decennial census. Census

22 Bureau 30(b)(6) Dep. Vol. I 321:14-17; New York Tr. 989:15-17 (Abowd); PTX-821 at

23 ¶¶ 55-56; Tr. 88:22-89:12 (O’Muircheartaigh). These guidelines require that agencies

24 conduct a pretest of all components of a survey, including by conducting a field test and full

25 “dress rehearsal” for “highly influential surveys.” PTX-266 at 14.

26

333. OMB Standard 1.4 requires that agencies “ensure that all components of a

27 survey function as intended when implemented in the full-scale survey and that measurement

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1 error is controlled” prior to implementing the data collection instrument. Id. at 14; PTX-821

2 at ¶ 56. This is done either by “conducting a pretest of the survey components” or by “having

3 successfully fielded the survey components on a previous occasion.” PTX-266 at 14.

4

334. OMB Standard 2.3 states that “[a]gencies must design and administer their data

5 collection instruments and methods in a manner that achieves the best balance between
6 maximizing data quality and controlling measurement error while minimizing respondent
7 burden and cost.” Id. at 16. OMB Guideline 2.3.1 similarly demands that agencies “[d]esign
8 the data collection instrument in a manner that minimizes respondent burden, while maximizing data quality.” Id. at 16.
9 335. The Census Bureau has conceded that—within the meaning of OMB Standard
10 2.3—Alternative D would result in lower data quality, higher cost, and higher respondent
11 burden than the Census Bureau’s recommended Alternative C. Census Bureau 30(b)(6) Dep.
12 Vol. I 321:18-322:19; New York Tr. 989:6-990:6 (Abowd). While Alternative C would
13 comport with OMB Guideline 2.3.1, New York Tr. 990:7-991:1 (Abowd), Alternative D
14 would not, given the degradation to data quality that would result.
15 c. Census Bureau Process for Adding or Modifying Census Content
16 336. In addition to abiding by the standards set forth above, the Census Bureau
17 follows a well-established process for adding or modifying questions on the decennial
18 census. This decade-long process involves multiple tests, including various randomized
19 control trials. New York Tr. 994:18-22 (Abowd). It also involves extensive cognitive and

20 field testing, ongoing research, and input from advisory committees. Id. at 996:24-997:14

21 (Abowd); PTX-214 at 4; Jarmin Dep. 47:13-48:17, 52:5-11, 138:16-139:19.

22

337. Another standard pretesting method is the randomized control trial (RCT),

23 which tests an operation with an added element and compares that to a test of the operation

24 without the element. Tr. 102:7-23 (O’Muircheartaigh). According to Dr. Abowd, the RCT is

25 the “gold standard” for testing a proposed question’s effect on the census count and data

26 collection. Id. at 874:10-23, 1039:10-17 (Abowd); New York Tr. 923:16-924:9 (Abowd);

27

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1 Census Bureau 30(b)(6) Dep. Vol. II 426-430.

2

338. Based on the result of pretesting, the Census Bureau must finalize the actual

3 2020 Census questionnaires and then must submit them for OMB approval of the 2020

4 Census information collection. PTX-821 at ¶ 62.

5

d. Past Practices for Testing the Decennial Census Questionnaire

6

339. Past decennial census questionnaires—the complete 2010 Census

7 questionnaire, for example—were subject to extensive cognitive testing and field testing.

8 New York Tr. 997:11- 23 (Abowd). After the 1990 Decennial Census, the Census Bureau

9 investigated the possibility of adding a question concerning respondents’ Social Security
numbers on the decennial census short form questionnaire. Id. at 998:25-999:4 (Abowd). 10
340. To test that potential Social Security number question, the Census Bureau 11
conducted an RCT comparing a version of the short form with the Social Security number 12
question and one without. Id. at 999:5-8 (Abowd). That RCT allowed the Bureau to assess 13
the impact on self-response rates of a Social Security number question. Id. at 999:9-11. 14
341. In that RCT, the self-response rate fell off in the group that had the Social
15 Security number question by 3.4 percent. Id. at 999:12-15. The conclusion drawn from that
16 RCT was that asking for a Social Security number would be sensitive. Id. at 999:16-18

17 (Abowd). As a result, the Census Bureau decided not to include a Social Security number

18 question on the decennial census questionnaire. Id. at 999:19-24 (Abowd). The Census has

19 never requested Social Security numbers on the census questionnaire, and one of the reasons

20 is the effect of the question on self-response rates, as revealed by the RCT. Id.

21

342. The RCT to assess the impact of a Social Security number question was

22 conducted before any decision was made about whether to include a Social Security number

23 question on the decennial census. Id. at 1000:8-13 (Abowd).

24

3. Whether ACS Data is Sufficient for VRA Enforcement Purposes

25

343. Plaintiffs offer the expert testimony of Dr. Lisa Handley and Professor Pamela

26 S. Karlan regarding whether the inclusion of a question about citizenship status in the

27 decennial census would assist in the enforcement Section 2 of the VRA.

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1

344. Dr. Handley is a consultant in redistricting and in electoral district design. She

2 has over thirty years of experience as an expert in redistricting, minority voting rights, and

3 the use of census data for voting rights enforcement purposes, advising governments, non-

4 profits, and NGOs on minority voting rights and redistricting-related issues and serving as an

5 expert in dozens of voting rights cases, including five Section 2 redistricting cases on behalf

6 of DOJ. PTX-819 at 788:22-796:3 (Handley). Based on her education, experience, and

7 knowledge, Dr. Handley is well-qualified to offer reliable and credible opinions on Section 2

8 of the VRA, and the use of census data in Section 2 litigation and enforcement proceedings.

9

345. Dr. Handley testified that in her professional opinion “currently available

10 census data has proven perfectly sufficient to ascertain whether an electoral system or

11 redistricting plan dilutes minority votes.” Id. at 796:22-797:12, 819:19-23 (Handley); PTX-

12 650.

13

346. Citizenship data is most relevant to the first Gingles precondition, which is that

14 the minority group in question be sufficiently large and geographically compact to constitute

15 a majority in a single-member district. Id. at 798:6-799:19 (Handley); see also Karlan Trial

16 Dep. 30:25-32:14 (ECF 145). Dr. Handley testified that, in her experience, CVAP estimates

17 at the census tract or block group level are generally sufficient to satisfy the first Gingles

18 precondition in Voting Rights Act cases. PTX-819 at 807:24-811:6 (Handley).

19

347. Moreover, Dr. Handley explained, where it would be helpful to present CVAP

20 data at the block level, this information can be reliably and accurately estimated by applying

21 the CVAP ratios from the census tract level to the block-level figures for total voting-age

22 population. Id. at 808:10-815:5 (Handley). In Dr. Handley’s expert opinion, block-level

23 CVAP estimates derived from ACS data at the census tract or block group levels are reliable

24 and accurate. Id. at 815:8-819:23, 855:23-856:10 (Handley).

25

348. Dr. Handley further explained that, in the district-specific functional analysis

26 that she employs in VRA analysis, which is also used by DOJ, the outcome does not depend

27 on a precise measurement of CVAP at the individual block level, but rather on an analysis of

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1 turnout rates and voting patterns within a district. The exact number of minority citizens of

2 voting age at the block level is “essentially irrelevant” to the analysis. Id. at 820:2-823:11

3 (Handley).

4

349. Dr. Handley’s work as a VRA expert has never been impeded by her use of 5-

5 year ACS CVAP data, and she is also not aware of any VRA claim that failed due to a

6 plaintiff’s reliance upon 5-year ACS CVAP data. Id. at 832:14-21 (Handley).

7

350. Professor Karlan has served as Deputy Assistant Attorney General in DOJ’s

8 Civil Rights Division from January 2014 through September 2015, overseeing the work of

9 the Voting Section, which enforces the VRA. She has also served as assistant counsel to the

10 NAACP Legal Defense Fund, litigating voting rights cases on behalf of plaintiffs and amici

11 curiae, including numerous cases brought under Section 2 of the VRA before the U.S.

12 Supreme Court. Karlan Trial Dep. 10:9-21, 12:18-14:7, 22:3-15. She has co-authored two

13 casebooks which covers the VRA, among other topics, and has written approximately one

14 dozen academic articles about the VRA. Id. at 18:2-20:3; 24:22-25:21.

15

351. Based on her education, experience, and knowledge, Professor Karlan is well-

16 qualified to offer reliable and credible opinions on Section 2 of the VRA, and the use of

17 census data in Section 2 litigation and enforcement proceedings.

18

352. Professor Karlan testified that, in her professional opinion, existing data sources

19 from the ACS are sufficient for plaintiffs to bring and prevail in cases brought under Section

20 2 of the VRA. Id. at 29:14-23, 66:15-23. She specifically observed that no reported Section 2

21 case has ever failed on account of the purported inadequacy of ACS data (or, prior to the

22 advent of the ACS, data from the longform census questionnaire) as a measure of CVAP. Id.

23 at 52:14-53:18.

24

353. Nothing in the DOJ’s December 12 Letter altered Professor Karlan’s

25 professional opinion that existing data sources are sufficient for plaintiffs to bring and

26 prevail in litigation under Section 2 of the Voting Rights Act. Id. at 66:24-67:20. Indeed, the

27 December 12 Letter did not identify any cases in which the inaccuracy or inadequacy of

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1 ACS data caused a plaintiff to lose a Section 2 case. Id. at 54:5-15.

2

E. Conclusions of Law

3

“A person suffering legal wrong because of agency action . . . is entitled to judicial

4 review thereof.” 5 U.S.C. § 702. Under the APA, “[t]he reviewing court shall . . . hold

5 unlawful and set aside agency action, findings, and conclusions found to be,” among other

6 things, “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

7 law.” 5 U.S.C. § 706(2)(A).

8

1. “Contrary to Law” Review

9

An agency decision may also violate the APA if the agency action is contrary to law.

10 5 U.S.C. § 706(2)(A); Nat’l Wildlife Fed’n v. U.S. Army Corps of Eng’rs, 384 F.3d 1163,

11 1166 (9th Cir. 2004). Based on the Administrative Record alone, the decision to add the

12 citizenship question violates the APA as contrary to law.

13

a. Section 6(c)

14

Section 6(c) of the Census Act requires the Secretary to use administrative records to

15 address DOJ’s data request rather than adding a citizenship question on the census. Although 16 Congress delegated to the Secretary a degree of discretion in conducting the census, section 17 6(c), among other provisions, limits that discretion. Title 13, section 6 states in full:

18

(a) The Secretary, whenever he considers it advisable, may call upon any

other department, agency, or establishment of the Federal Government, or of

19

the government of the District of Columbia, for information pertinent to the

20

work provided for in this title.

21

(b) The Secretary may acquire, by purchase or otherwise, from States,

counties, cities, or other units of government, or their instrumentalities, or

22

from private persons and agencies, such copies of records, reports, and other

material as may be required for the efficient and economical conduct of the

23

censuses and surveys provided for in this title.

24

(c) To the maximum extent possible and consistent with the kind, timeliness,

25

quality and scope of the statistics required, the Secretary shall acquire and use information available from any source referred to in subsection (a) or (b) of

26

this section instead of conducting direct inquiries.

27 13 U.S.C. § 6. Subdivision (c) of section 6 was added to the statute in the 1976 Census Act.

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1 See 1976 Census Act § 5(a), 90 Stat. at 2460. So while the statute previously merely

2 authorized the use of government records for census-related purposes, the amendment made

3 the use of those records a mandatory alternative to “direct inquiries” in certain circumstances.

4 Subdivision (c) of section 6 serves “the dual interests of economizing and reducing

5 respondent burden.” H.R. CONF. REP. No. 94-1719, at 10 (1976), reprinted in 1976

6 U.S.C.C.A.N. 5476, 5478.

7

The Administrative Record here demonstrates that it was “possible” to “acquire and

8 use” administrative records from other government agencies that would produce data

9 “consistent with the kind, timeliness, quality and scope of the statistics required.” 13 U.S.C.

10 § 6(c). The “kind” of data here would be the same regardless of whether it is gathered by

11 administrative records or a census question—in both cases, the relevant data is simply block-

12 level data on citizens versus noncitizens. Moreover, the Census Bureau advised Secretary

13 Ross in the March Memo that regardless of whether administrative data or a citizenship

14 question were used, there was no difference in timing on when the citizenship data would be

15 available, PTX-133 at 11, and there is no evidence in the Administrative Record to the

16 contrary.

17

Finally, the Census Bureau repeatedly advised Secretary Ross that the quality of the

18 citizenship data would be higher from administrative records than from a citizenship question

19 due to noncitizens’ propensity to self-report as citizens. See Parts IV.C.5.d, IV.C.7, supra.

20 The scope of the data would be the same, regardless of source, because data would be

21 obtained for residents of the entire country (with a minority requiring imputation, regardless

22 of the data source).

23

Thus, under every criterion set forth in section 6(c), with no evidence in the record to

24 the contrary, using administrative records alone was superior to adding a citizenship question

25 to the decennial census. Secretary Ross was therefore legally required to obtain citizenship

26 data through administrative records rather than a citizenship question on the census. His

27 decision to do otherwise violates the APA.

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1

b. Section 141(f)

2

Adding a citizenship question to the 2020 Census is also contrary to law because

3 Secretary Ross changed the subjects to be included on the Census after submitting his

4 Section 141(f)(1) report despite the absence of any new circumstances justifying such a

5 change. Section 141(f) provides:

6

(f) With respect to each decennial and mid-decade census conducted under

7

subsection (a) or (d) of this section, the Secretary shall submit to the committees of Congress having legislative jurisdiction over the census—

8 (1) not later than 3 years before the appropriate census date, a report

9

containing the Secretary’s determination of the subjects proposed to be

included, and the types of information to be compiled, in such census; 10

(2) not later than 2 years before the appropriate census date, a report

11

containing the Secretary’s determination of the questions proposed to

12

be included in such census; and

13

(3) after submission of a report under paragraph (1) or (2) of this

subsection and before the appropriate census date, if the Secretary

14

finds new circumstances exist which necessitate that the subjects,

types of information, or questions contained in reports so submitted be

15

modified, a report containing the Secretary’s determination of the

16

subjects, types of information, or questions as proposed to be modified.

17 13 U.S.C. § 141(f). Secretary Ross submitted his section 141(f)(1) report in March of 2017.

18 PTX-264. That report did not include the subject of citizenship as a topic for the 2020

19 Census. Id. In March of the following year, Secretary Ross submitted his section 141(f)(2)

20 report.19 Consistent with his Decision Memo, that report states a citizenship question will be

21 included on the 2020 Census. Secretary Ross has not, however, submitted a report pursuant

22 to subdivision (f)(3), nor did he identify the “new circumstances” that justified the addition

23 of this new topic.

24

Defendants argue that only Congress can enforce section 141(f) because courts

25

26 19 Judicial notice is taken of Secretary Ross’s 141(f)(2) report, Questions Planned for the 2020 Census and American Community Survey, available at
27 https://www.census.gov/library/publications/2018/dec/planned-questions-2020-acs.html.

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1 cannot redress any injury resulting from an inadequate report. Guerrero v. Clinton, 157 F.3d

2 1190, 1191 (9th Cir. 1998); Renee v. Duncan, 686 F.3d 1002, 1016-17 (9th Cir. 2012). In

3 both Guerrero and Renee the Ninth Circuit held that the courts could not police the quality

4 of congressional reports that were “purely informational” and from which no legal

5 consequences flowed. Guerrero, 157 F.3d at 1194-1195; Renee, 686 F.3d at 1016-17.

6

While Defendants are correct that the primary function of section 141(f) is to impose

7 reporting requirements, it also imposes substantive limitations on the Secretary’s ability to

8 modify the census. This section specifically prevents the Secretary of Commerce from

9 changing the topics or questions to be included in the census after submission of the (f)(1) or

10 (f)(2) reports absent “new circumstances” justifying the change. Therefore, while Defendants

11 present a credible argument that the reporting requirement is generally not subject to judicial

12 review, they do not address section 141(f)(3)’s substantive restrictions on the Secretary’s

13 authority to make last minute changes to the census without good cause, which is judicially

14 reviewable.

15

Section 141(f)(3) requires that, “if the Secretary finds new circumstances exist which

16 necessitate that the subjects, types of information, or questions” included in the census be

17 modified, he submit a new report detailing these modifications. 13 U.S.C § 141(f)(3). The

18 plain meaning of this provision is that the Secretary may not deviate from the subjects and

19 questions outlined in his or her reports to Congress absent new circumstances. Construing

20 the statute in any other manner would render the “new circumstances” clause utterly

21 meaningless. This runs afoul of one of the most basic canons of construction, that a “statute

22 should be construed so that effect is given to all its provisions, so that no part will be

23 inoperative or superfluous, void or insignificant.” Corley v. United States, 556 U.S. 303, 314

24 (2009) (quoting Hibbs v. Winn, 542 U.S. 88, 101 (2004)).

25

The only interpretation of the statute that gives full effect to all provisions is that,

26 once the Secretary has submitted either the (f)(1) or (f)(2) reports, he or she may not deviate

27 from the contents set forth in those reports absent “new circumstances” that necessitate a

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1 late-stage change to the census. Here, this inquiry ultimately collapses with the pretext

2 question discussed above. Indeed, the only new circumstances identified by Defendants is

3 the submission of the DOJ request letter. As previously explained, the VRA enforcement

4 rationale is nothing more than a pretext designed to provide cover for the Secretary’s

5 unexplained desire to add the citizenship question to the census. Just as the DOJ letter does

6 not provide the true basis for Secretary Ross’s decision, neither may it qualify as a new

7 circumstance that requires a change to the census. Accordingly, the Secretary’s decision to

8 add the citizenship question was contrary to law for this reason as well.

9

2. Arbitrary and Capricious Review

10

The standard for evaluating whether an agency’s decision was arbitrary and

11 capricious is whether the decision “was the product of reasoned decisionmaking.” State

12 Farm, 463 U.S. at 52. This standard is deferential, Pac. Dawn LLC v. Pritzker, 831 F.3d

13 1166, 1173 (9th Cir. 2016), and does not permit the Court to “substitute its judgment for that

14 of the agency,” Ctr. for Bio. Diversity v. Zinke, 868 F.3d 1054, 1057 (9th Cir. 2017). The

15 focus at all times must remain on whether the agency “considered the relevant factors and

16 articulated a rational connection between the facts found and the choices made.” Nw. Ecosys.

17 All. v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140, 1145 (9th Cir. 2007) (quotation

18 omitted).

19

a. Review Based on the Administrative Record Alone

20

i. Pretext

21

The APA requires an agency decision-maker to “disclose the basis of its” decision

22 and to “give clear indication that it has exercised the discretion with which Congress has

23 empowered it.” Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962);

24 accord Federal Power Comm’n v. Texaco Inc., 417 U.S. 380, 396 (1974). Where the agency

25 decision-maker fails to disclose the substance of relevant information that has been presented

26 to it, the court “must treat the agency’s justifications as a fictional account of the actual

27 decisionmaking process and must perforce find its actions arbitrary.” See Home Box Office,

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1 Inc. v. F.C.C., 567 F.2d 9, 54-55 (D.C. Cir. 1977); see also U.S. Lines, Inc. v. Federal

2 Maritime Comm’n, 584 F.2d 519, 534-535 (D.C. Cir. 1978) (explaining that the basis of an

3 agency’s decision must be disclosed, at the very latest, in the final decision to permit

4 meaningful judicial review).

5

Secretary Ross violated the APA by failing to disclose the basis for his decision to

6 add a citizenship question to the 2020 Census. As explained in the Findings of Fact Based

7 Exclusively on the Administrative Record, the evidence overwhelmingly shows that

8 Secretary Ross decided to add the citizenship question well before DOJ made the request in

9 December of 2017 and that his reason for doing so was not to improve enforcement of

10 Section 2 of the VRA. This purported purpose was a mere pretext.

11

While there is some evidence in the Administrative Record that Secretary Ross’s

12 interest in the citizenship question was related to the inclusion of noncitizens in the

13 apportionment count, there is no need definitively to ascertain the Secretary’s true purpose.

14 For the purposes of the APA, it is relevant only that Section 2 enforcement did not supply

15 the true basis of Secretary Ross’s decision and that he disclosed no other basis. Secretary

16 Ross has therefore violated the APA by failing to disclose the actual basis for his decision to

17 add a citizenship question to the 2020 Census.

18

ii. Whether Secretary Ross Considered All Relevant Factors

19

An agency action must also be set aside as arbitrary and capricious if the agency fails

20 “to consider an important aspect of the problem.” State Farm, 463 U.S. at 43; see also

21 SecurityPoint Holdings, Inc. v. Transp. Sec. Admin., 769 F.3d 1184, 1188 (D.C. Cir. 2014)

22 (vacating agency order where agency failed to consider potential harms of its changes to an

23 airport advertising program); Stewart v. Azar, 313 F. Supp. 3d 237, 263 (D.D.C. 2018)

24 (vacating HHS Secretary’s waiver of several requirements of expanded Medicaid because

25 “[f]or starters, the Secretary never once mentions the estimated 95,000 people who would

26 lose coverage, which gives the Court little reason to think that he seriously grappled with the

27 bottom-line impact on healthcare” (emphasis in original)).

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1

Defendants failed to consider the potential harms the citizenship question could cause

2 to the accuracy of the Census Bureau’s final enumeration, and therefore to the allocation of

3 federal funding and apportionment of congressional representation. The Decision Memo

4 states that “[t]he citizenship data provided to DOJ will be more accurate with the question

5 than without it, which is of greater importance than any adverse effect that may result from

6 people violating their legal duty to respond.” PTX-26 at 7. Secretary Ross does not,

7 however, articulate the potential harms that he is allegedly weighing. In particular, he does

8 not grapple in any meaningful way with the possibility of that a severe differential decline in

9 self-response rates could ultimately affect congressional apportionment. Instead, the

10 Secretary based his decision to add the citizenship question upon a purported lack of

11 evidence about the effects of the citizenship question on the census—specifically self-

12 response rates. Part IV.C.10.

13

The Secretary attempts to justify barreling ahead in the face of this alleged

14 uncertainty by stating that “no one has identified any mechanism” for evaluating the impact

15 of the citizenship question on the census. id. This statement is, frankly, perplexing. It is

16 notable that Secretary Ross does not claim that the Census Bureau lacks the tools to test the

17 citizenship question. Nor does Secretary Ross claim the Census Bureau advised him that

18 testing the effects of the citizenship question was beyond the Bureau’s ability. Ultimately, it

19 is highly implausible that Secretary Ross was unaware that other testing mechanisms,

20 beyond the Census Bureau’s natural experiment, existed.

21

Secretary Ross’s failure to investigate and consider the likely effects of the

22 citizenship question on the accuracy of the Census Bureau’s enumeration—and therefore on

23 congressional apportionment and the allocation of federal funding—was an abdication of his

24 duty to consider all relevant factors before making his decision. Therefore, the Secretary’s

25 decision to prioritize the inclusion of the citizenship question on the census over any harm

26 that might result was necessarily arbitrary and capricious.

27

iii. Whether the Decision Ran Counter to the Evidence

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1

An agency action is also arbitrary and capricious under the APA if the agency offers

2 “an explanation for its decision that runs counter to the evidence before the agency.” State

3 Farm, 463 U.S. at 43. An agency must “articulate a satisfactory explanation for its action

4 including a ‘rational connection between the facts found and the choice made.’” Id. (quoting

5 Burlington Truck Lines, 371 U.S. at 168. Where a decision-maker adopts a “plainly inferior”

6 course of action, that decision is arbitrary and capricious. Pub. Citizen, Inc. v. Mineta, 340

7 F.3d 39, 56 (2d Cir. 2003).

8

Defendants’ decision to add the citizenship question to the 2020 Census is contrary to

9 the evidence. This decision is predicated on the assertion in the Decision Memo that adding a

10 citizenship question on the 2020 Census will result in the “most complete and accurate”

11 citizenship data for DOJ’s stated purpose of VRA enforcement. PTX-26 at 1 (“The

12 Department and Census Bureau’s review of the DOJ request—as with all significant Census

13 assessments— prioritized the goal of obtaining complete and accurate data” (emphasis in

14 original); see also id. at 5 (“It is my judgment that Option D will provide DOJ with the most

15 complete and accurate CVAP data in response to its request”), 7 (“[h]owever, even if there is

16 some impact on responses, the value of more complete and accurate data derived from

17 surveying the entire population outweighs such concerns”), 8 (“To conclude, after a

18 thorough review of the legal, program, and policy considerations, as well as numerous

19 discussions with the Census Bureau leadership and interested stakeholders, I have

20 determined that reinstatement of a citizenship question on the 2020 Decennial Census is

21 necessary to provide complete and accurate data in response to the DOJ request.”).

22

In light of this stated goal, Defendants’ decision to add a citizenship question to the

23 2020 Census runs counter to the evidence in the Administrative Record that shows adding a

24 citizenship question will result in citizenship data less accurate and no more complete than

25 citizenship data gathered through administrative records alone (Alternative C). This was the

26 conclusion of every scientific analysis in the Administrative Record that addressed the issue,

27 and this conclusion was repeatedly communicated to Secretary Ross. See, e.g., PTX-22 at 1

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1 (January 19 Memo) (explaining that adding the citizenship question would result in

2 “substantially less accurate citizenship status data than are available from administrative

3 sources”); PTX-25 at 5 (March 1 Memo) (“Alternative D would result in poorer quality

4 citizenship data than Alternative C.”).

5

The Census Bureau’s analyses offered several explanations for the difference in

6 accuracy between a census response and administrative records data. First, the citizenship

7 data in administrative records is “very accurate” because that data point requires people to

8 have provided proof of citizenship or legal resident alien status. PTX-101 at 3; PTX-22 at 7.

9 Second, citizenship data that is self-reported in surveys is inaccurate for noncitizens.

10 Historical census and ACS data show that noncitizens misreport themselves as citizens “for

11 no less than 23.8% of the cases, and often more than 30%.” PTX-22 at 7.

12

Third, the Census Bureau found that lowered self-response rates due to the

13 citizenship question will decrease the number of people who can be linked to administrative

14 records (which contain citizenship information), because the personal identifying

15 information gathered in NRFU is lower quality than personal identifying information

16 gathered through self-response. PTX-22 at 2; PTX-25 at 4. Fourth, imputation will be less

17 accurate if based in part on self-reported citizenship data rather than administrative records

18 alone. This is because many noncitizens inaccurately report that they are citizens, therefore

19 the imputation model will be biased under Option D. In contrast, the imputation model under

20 Alternative C would be benchmarked to accurate administrative records and therefore would

21 not suffer from this bias.

22

Notably, there is no evidence in the Administrative Record supporting Secretary

23 Ross’s assertion that self-reported citizenship data is more accurate than citizenship data

24 from administrative records. Thus, all of the evidence shows that citizenship information

25 gathered through a citizenship question on the Census (Alternative D) will be less accurate

26 than citizenship information gathered through administrative records (Alternative C).

27

All of the evidence in the Administrative Record also shows that Option D will not

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1 yield more “complete” data than Alternative C. Secretary Ross implies in the Decision

2 Memo that citizenship data from administrative records would be incomplete because using

3 administrative records alone would require imputation of citizenship status for 10 percent of

4 the population, whereas a citizenship question on the 2020 Census “may eliminate the need

5 for the Census Bureau to have to impute an answer for millions of people.” PTX-26 at 4, 5.

6

In fact, the Census Bureau estimates that under both alternatives millions of people

7 would need their citizenship status imputed and the total number of people assigned a

8 citizenship status would be approximately the same (330 million). PTX-24 at 1-4. In sum, all

9 of the evidence in the Administrative Record shows that adding a citizenship question to the

10 2020 Census would yield citizenship data that is less accurate and no more complete than

11 gathering that data using administrative records alone. The decision to add the citizenship

12 question was therefore arbitrary and capricious in violation of the APA.

13

The decision was also counter to the evidence because it was replete with flawed

14 assertions that are either not based on any evidence or contrary to the evidence in the

15 Administrative Record. First, the Decision Memo repeatedly claimed that there was no

16 evidence the citizenship question would cause a drop in self response, and that “no one has

17 identified any mechanism” for obtaining such evidence. PTX-26 at 3-5. This assertion is

18 contrary to the evidence in the Administrative Record. The Census Bureau performed a

19 scientific analysis leading to an estimate that 5.1 percent of households with at least one

20 noncitizen would not respond to the census due to the citizenship question. The Bureau

21 repeatedly communicated that estimate to Secretary Ross. PTX-22 at 4; PTX-148 at 6-7.

22 Nothing in the Administrative Record supports a contrary conclusion.

23

Second, the Decision Memo states that asking the citizenship question of all people

24 “may eliminate the need for the Census Bureau to have to impute an answer for millions of

25 people.” PTX-26 at 5. However, the Census Bureau had estimated that with a citizenship

26 question on the census, it would still have to impute the citizenship data of 13.8 million

27 people. PTX-24 at 2. Nothing in the Administrative Record supports a contrary conclusion.

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1

Third, the Decision Memo states that Option D “would maximize the Census

2 Bureau’s ability to match the decennial census responses with administrative records,” PTX-

3 26 at 4, so as to allow for “more complete” citizenship data. However, the Administrative

4 Record reflects that because adding a citizenship question would drive down the self-

5 response rate and put more households into NRFU operations, Option D actually reduces the

6 Census Bureau’s ability to match survey responses with administrative records. PTX-25 at 4.

7

Fourth, the Decision Memo also attempts to justify Option D by stating that adding

8 the citizenship question to the census “will permit the Census Bureau to determine the

9 inaccurate response rate” with respect to the citizenship question, and suggests that this

10 would improve the accuracy of the imputation model. PTX-26 at 5. However, nowhere in the

11 Administrative Record, including in the Abowd memoranda, does the Census Bureau state

12 that adding a citizenship question would increase the accuracy of its estimate of inaccurate

13 citizenship responses. Nor is it apparent from the Administrative Record why the inaccuracy

14 rate of responders would help impute the citizenship data of nonrespondents. If citizenship is

15 benchmarked to administrative records, and the Bureau would be using those records in any

16 event, then adding a census question would not assist in the imputation. Accordingly,

17 Defendants’ decision is arbitrary and capricious because these key statements in the Decision

18 Memo, purportedly justifying the choice of “Option D,” were counter to the evidence.

19

b. Extra-Record Evidence Confirms the Secretary’s Decision was Arbitrary and

Capricious

20

i. Pretext

21

Extra-record evidence confirms that Secretary Ross’s justification for his decision to

22

add the citizenship question was pretextual. Several facts are particularly striking. First,

23

Secretary Ross’s senior officials at the Commerce Department all claim, rather implausibly,

24

to be ignorant of why Secretary Ross wanted the citizenship question on the 2020 Census.

25

Even Comstock, the Director of Policy in charge of soliciting the DOJ request for the

26

question, claims that he never asked Secretary Ross to explain his reasoning. Comstock Dep.

27

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1 171-72. This suggests either that, despite several months of discussion, Secretary Ross kept

2 his senior staff in the dark about his reason for wanting to include the citizenship question or

3 that his staff are dissembling in order to avoid revealing Secretary Ross’s true purpose. Both

4 of these conclusions suggest that Secretary Ross does not wish his reason for requesting the

5 inclusion of the citizenship question on the 2020 Census to come to light.

6

Second, DOJ’s December 12 Letter requesting the citizenship question was drafted

7 with limited involvement from VRA career staff. Gore initially prepared the letter and sent

8 an early draft to Chris Herren, the Chief of the Voting Rights Section, on November 1,

9 requesting feedback. This was the only involvement by any career staff in the Voting Rights

10 Section, even though the letter continued to be reviewed and revised by political appointees

11 for more than a month afterwards. Id. The limited involvement of VRA staff in this process

12 casts doubts on the true need for this data to support VRA enforcement. This bolster’s the

13 conclusion that the December 12 Letter was a mere pretext orchestrated by Secretary Ross,

14 rather than a sincere request upon which the Secretary reasonably relied.

15

Third, the Administrative Record reveals that DOJ refused to meet with Census

16 Bureau staff to discuss its request that a citizenship question be added to the 2020 Census.

17 Extra-record evidence further establishes that DOJ’s refusal to meet and discuss its data

18 needs was both “very unusual” for a requesting agency and directed by Attorney General

19 Sessions himself. Tr. 1055:5-9 (Abowd); Gore Dep. 271:21-272:13. That DOJ would choose

20 not to pursue an offered alternative that the Census Bureau believed would better suit DOJ’s

21 stated needs is extraordinary—and all the more so given that the Attorney General himself

22 made the decision. This evidence strongly suggests that VRA enforcement was not the true

23 goal of either the DOJ officials who prepared the request or Secretary Ross, who solicited

24 the request in the first place.

25

ii. Whether Secretary Ross Considered All Relevant Factors

26

Extra-record evidence also confirms that Defendants failed to consider several

27 important factors when deciding whether to include the citizenship question on the census.

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1 First, Defendants failed to consider whether the question had been adequately tested under

2 the applicable agency standards. While the Decision Memo states that the citizenship

3 question is “well tested” because it has been on the ACS since 2005, PTX-26 at 2,

4 Defendants point to no evidence in the Administrative Record demonstrating that the

5 citizenship question was “performing adequately” on the ACS for the purposes of pretesting.

6 See Part IV.D.2.a. Defendants also failed to consider the effect of documented changes in the

7 macro-environment around issues of immigration on respondents’ willingness to fill out a

8 questionnaire that includes a citizenship question.

9

Second, Defendants failed to consider the effect of the Census Bureau’s

10 confidentiality obligations and disclosure avoidance practices on the fitness of citizenship

11 data for DOJ’s stated purpose, enforcement of Section 2 of the VRA. Under its disclosure

12 avoidance protocols, the Census Bureau will apply disclosure avoidance techniques to data

13 collected from every census block, meaning that even after adding a citizenship question,

14 there will not be a single census block for which the reported citizenship data directly

15 reflects the responses of the census block’s inhabitants to the 2020 Census questionnaire,

16 unless by random chance. New York Tr. 1033:16-21 (Abowd); Census Bureau 30(b)(6) Dep.

17 Vol. I 53:12-17, 69:6-71:12. Therefore, even if the citizenship data is obtained through

18 enumeration, some margin of error will unavoidably exist. Id. The Census Bureau does not

19 know how that margin of error will compare to the margin of error for the ACS citizenship

20 data currently in use. Id. The Bureau has not determined if, after disclosure avoidance, the

21 error margins for block-level CVAP data based on information collected through the

22 decennial enumeration will allow redistricting offices and the Department of Justice to use

23 the data effectively. Census 30(b)(6) Dep. Vol. I 100:21-101:15.

24

This complete absence of certainty, confirmed by Dr. Abowd, of whether the Census

25 Bureau’s disclosure avoidance protocols will result in greater error margins than the ones

26 associated with currently available CVAP data, or will generate a product that is “effective”

27 for its intended use, directly controverts the Secretary’s argument that “hard-count”

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1 citizenship data from the decennial enumeration will provide DOJ with the “most complete

2 and accurate” data for its VRA enforcement efforts. PTX-26 at 5.

3

Third, extra-record evidence reveals that Defendants failed to analyze and consider

4 whether hard-count citizenship data would aid in VRA enforcement. The unrebutted expert

5 testimony of Plaintiffs’ voting rights expert Dr. Lisa Handley confirms that a citizenship

6 question on the census is not necessary to enforce the VRA. Dr. Handley testified that, in her

7 experience, CVAP estimates at the census tract or block group level are generally sufficient

8 to satisfy the first Gingles precondition in VRA cases. New York Tr. 807:24-811:6

9 (Handley). Dr. Handley further explained that, where it would be helpful to present CVAP

10 data at the block level, this information can be reliably and accurately estimated using block-

11 level CVAP data by applying the CVAP ratios from the census tract level to the block-level

12 figures for total voting-age population. Id. at 808:10-815:5.

13

The unrebutted expert testimony of Plaintiffs’ voting rights expert Professor Pamela

14 Karlan also confirms that a citizenship question on the census is not “necessary” to enforce

15 the VRA. Professor Karlan explained that no Section 2 case has ever failed on account of the

16 purported inadequacy of ACS data (or, prior to the advent of the ACS, data from the long-

17 form census questionnaire) as a measure of CVAP. Karlan Trial Dep. 52:14-53:18.

18

Defendants point to no evidence in the Administrative Record that suggests a

19 contrary conclusion. Moreover, there is no indication that Secretary Ross independently

20 weighed the value of the requested block level CVAP data, even after DOJ refused to meet

21 with the Census Bureau to clarify its data needs. Ultimately, Secretary Ross’s failure to

22 evaluate for himself the value of the requested data renders his decision to prioritize the

23 acquisition of this information over all else arbitrary and capricious.

24

In short, Defendants’ failure to consider these additional factors further supports a

25 finding that the Secretary’ decision was arbitrary and capricious.

26

V. CONSTITUTIONAL CLAIMS

27

As previously explained, both sets of plaintiffs advance a claim for violation of the

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1 Enumeration Clause. The San Jose Plaintiffs also advance a claim under the Appropriations

2 Clause; however, as discussed in Part III.C, supra, they do not adequately establish standing

3 with respect to that claim. Accordingly, only the Enumeration Clause claim will be discussed

4 here.

5

A. Legal Standard

6

The United States Constitution mandates the “actual Enumeration” of the population

7 every ten years for the purpose of apportioning congressional representatives among the

8 states. U.S. Const. art. I, § 2, cl. 3. Congress has delegated the duty of taking the census to

9 the Secretary of Commerce. 13 U.S.C. § 141(a). Although Congress and the states use

10 census data for many purposes, including for allocating federal funding, the only

11 constitutional purpose of the census is to apportion congressional representatives based on

12 the “actual Enumeration” of the population of each state. U.S. Const. art. I, § 2, cl. 3; id.

13 amend. XIV, § 2; see also Franklin v. Massachusetts, 505 U.S. 788, 806 (1992) (reasoning

14 that Secretary of Commerce’s decision to include overseas federal employees in the

15 apportionment count did not violate Enumeration Clause because the decision “does not

16 hamper the underlying constitutional goal of equal representation”); Utah v. Evans, 536 U.S.

17 452, 500 (2002) (Thomas, J., concurring in part and dissenting in part) (observing that the

18 Framers’ “[d]ebate about apportionment and the census . . . focused for the most part on

19 creating a standard that would limit political chicanery”).

20

The Census Bureau is not constitutionally required to perform an absolutely accurate

21 count of the population. Wisconsin v. Cty. of New York, 517 U.S. 1, 6 (1996). Nevertheless,

22 there is a “strong constitutional interest in accuracy” of the census. Evans, 536 U.S. at 478.

23 The type of accuracy which most directly implicates the constitutional purpose of the census

24 is distributive accuracy, as opposed to numerical accuracy. See Wisconsin, 517 U.S. at 20

25 (explaining that “a preference for distributive accuracy . . . would seem to follow from the

26 constitutional purpose of the census, viz., to determine the apportionment of the

27 Representatives among the States”). Numerical accuracy refers to the accuracy of the overall

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1 count, whereas distributive accuracy refers to the accuracy of the proportions in which

2 residents are counted in their proper locations. See id. at 11 n.6.

3

To promote distributive accuracy, the Enumeration Clause requires the Secretary’s

4 actions to bear “a reasonable relationship to the accomplishment of an actual enumeration of

5 the population, keeping in mind the constitutional purpose of the census,” which is to

6 determine the apportionment of the Representatives among the States. Id. at 20. While each

7 and every question on the census need not be related to the goal of actual enumeration, a

8 decision to alter the census in a way that affirmatively interferes with the actual enumeration,

9 and does not fulfill any other reasonable governmental purpose, is subject to a challenge

10 under the Enumeration Clause.

11

B. Scope of Review

12

Defendants argue that the Enumeration Clause claims must be decided on the basis of

13 the Administrative Record alone. See, e.g., Bellion Spirits, LLC v. United States, 335 F.

14 Supp. 3d 32, 43 (D.D.C. 2018) (“[W]hen a constitutional challenge to agency action requires

15 evaluating the substance of an agency’s decision made on an administrative record, that

16 challenge must be judged on the record before the agency”); Chiayu Chang v. U.S.

17 Citizenship & Immigration Servs., 254 F. Supp. 3d 160, 161 (D.D.C. 2017) (summarizing

18 cases holding that the assertion of constitutional claims does not remove a matter from the

19 APA’s procedural strictures); Jarita Mesa Livestock Grazing Ass’n v. U.S. Forest Serv., 58

20 F. Supp. 3d 1191, 1237 (D.N.M. 2014) (holding that the fact that a case “alleges

21 constitutional violations as well as statutory ones does not take it outside of the APA”).

22

As the district court in Bellion recognized, “caselaw on a plaintiff’s ability to

23 supplement an administrative record to support a constitutional cause of action is sparse and

24 in some tension.” 335 F. Supp. 3d at 41. Some courts have held that such claims are subject

25 to the strictures of the APA because section 706 specifically provides for review of agency

26 action that is “contrary to constitutional right.” See, e.g., Jarita Mesa, 58 F. Supp. 3d at

27 1237-38 (quoting 5 U.S.C. § 706(2)(B)); see also Chiayu Chang, 254 F. Supp. 3d at 161-162

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1 (collecting cases). Other courts have reached a similar conclusion based on more practical

2 concerns. See, e.g., Alabama-Tombigbee Rivers Coal. v. Norton, No. CV-01-S-0194-S, 2002

3 WL 227032, at *3-6 (N.D. Ala. Jan. 29, 2002). Yet another group of courts has concluded

4 that extra-record evidence may sometimes be considered in resolving such claims. See, e.g.,

5 Puerto Rico Pub. Hous. Admin. v. U.S. Dep’t of Hous. & Urban Dev., 59 F. Supp. 2d 310,

6 327-28 (D.P.R. 1999); Rydeen v. Quigg, 748 F. Supp. 900, 906 (D.D.C. 1990); see also

7 Carlsson v. U.S. Citizenship & Immigration Servs., No. 12-cv-07893, 2015 WL 1467174, at

8 *13 (C.D. Cal. Mar. 23 2015).

9

Fortunately, there is no need to wade into the morass. Even assuming the usual APA

10 strictures apply, Secretary Ross’s failure to consider the impact of the citizenship question on

11 the accuracy of the enumeration, and therefore on the apportionment of congressional

12 representation, see Part E(1)(a)(ii), supra, empowers this Court to look beyond the

13 Administrative Record to determine whether the Secretary’s decision to include the

14 citizenship question is consistent with his Constitutional obligation to carry out an accurate

15 enumeration of the public. See Ranchers Cattlemen, 499 F.3d 1108 at 1117. To find

16 otherwise would allow government agencies to insulate themselves from judicial review of

17 the constitutionality of their actions by simply refusing to investigate pertinent factors during

18 the decision-making process. Accordingly, the Findings of Fact Related to Standing set forth

19 in Part III.B, supra, form the basis of the Enumeration Clause claim, in addition to the

20 findings of fact associated with the APA claim laid out in Part IV.C-D, supra.

21

C. Conclusions of Law

22

The Secretary’s decision to add a citizenship question to the 2020 Census violates the

23 Enumeration Clause of the Constitution because its inclusion will materially harm the

24 accuracy of the census without advancing any legitimate governmental interest. This is no

25 ordinary demographic inquiry. The record reveals that the inclusion of the citizenship

26 question on the upcoming census will have a unique impact on the Census Bureau’s ability

27 to count the public, to the point where the inclusion of this question is akin to a mechanics-

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1 of-counting-type issue. In short, Secretary Ross’s decision to add the citizenship question to

2 the 2020 Census undermines the “strong constitutional interest in [the] accuracy” of the

3 census, Utah, 536 U.S. at 478, and does so despite the fact that adding this question does not

4 advance any identifiable government purpose.

5

First, as previously discussed, the citizenship question will significantly impair the

6 distributive accuracy of the census because it will uniquely and substantially impact specific

7 demographic groups. Part III.B.1-3, supra. Specifically, the citizenship question will cause

8 an undercount of noncitizens and Latinos and, by extension, localities where many such

9 persons reside. Part III.B.3, supra. This, in turn, substantially increases the risk that

10 California will lose a seat in the House of Representatives. Indeed, the likelihood that

11 California will lose a congressional seat increases from 26.1 percent to at least 49.9 percent

12 with the addition of the citizenship question. Parts III.B.6, III.C.1.b, supra. There is also

13 credible evidence, based on Dr. Barreto’s survey, that California could lose up to three

14 congressional seats due to the citizenship question. Part III.B.6 Accordingly, the addition of

15 the citizenship question implicates the “strong constitutional interest in accuracy.” Evans,

16 536 U.S. at 478; see also Wisconsin, 517 U.S. at 20.

17

Second, Defendants fail to identify any countervailing governmental interest that

18 could justify this harm to the census. It is clear from the Administrative Record that

19 Secretary Ross’s purported reliance on the DOJ letter was nothing more than a pretext

20 designed to provide cover for Secretary Ross’s unexplained desire to add the citizenship

21 question to the census. See Part IV.C.12, supra. Extra-record evidence bolsters this

22 conclusion. Evidence produced through discovery reveals that the DOJ letter was drafted at

23 the Attorney General’s direction, with minimal involvement from the Civil Rights Division’s

24 voting rights staff. Attorney General Sessions subsequently prevented DOJ officials from

25 engaging in follow-up discussions with Census Bureau staff to clarify the request. Moreover,

26 aside from DOJ’s December 12 Letter, which was produced under curious circumstances and

27 represented an abrupt change in DOJ’s position, the record is devoid of any evidence to

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1 support the VRA enforcement rationale. Plaintiffs, on the other hand, adduce persuasive

2 evidence that block-level CVAP data would have little effect on the prosecution of VRA

3 actions.

4

Even assuming DOJ’s VRA enforcement efforts would benefit from block-level

5 citizenship data, there is no evidence to support the conclusion that surveying residents about

6 their citizenship would increase the accuracy of available block-level citizenship data.

7 Indeed, all evidence before this Court points to the opposite conclusion—that the inclusion

8 of the citizenship question would ultimately yield less citizenship accurate data than relying

9 on administrative records and imputing the citizenship status of persons for whom such data

10 does not exist. Part IV.C.5.d. In sum, the evidence shows that this question would impede

11 the stated goal of obtaining more accurate block-level CVAP. Accordingly, Defendants have

12 failed to point to any way in which including the citizenship question on the 2020 census

13 will advance a legitimate governmental interest.

14

This is not to say that the Census Bureau may never ask about citizenship on future

15 census questionnaires. It simply means that, where the inclusion of a particular question will

16 degrade the accuracy of the Census to the point where the proper apportionment of

17 representatives among the states is at risk, the government must identify a legitimate

18 governmental purpose that is sufficiently weighty to justify this significant harm to the

19 census. Defendants falls well short of this standard.

20

Moreover, finding that adding a citizenship question is unconstitutional does not

21 automatically render all demographic questions on the census unconstitutional. Indeed, it is
22 well established that each and every question on the census need not relate to the goal of 23 enumeration. See Baldridge v. Shapiro, 455 U.S. 345, 353 (1982) (acknowledging that the 24 census “fulfills many important and valuable functions”). There is, however, no evidence 25 that any other demographic question included on the census is likely to result in distributive 26 inaccuracy that threatens to distort the apportionment of representatives, or that these 27 questions were introduced despite the absence of any legitimate governmental interest in

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1 their being asked.

2

Defendants argue against an Enumeration Clause finding because it would suggest

3 the constitutionality of a particular question could vary over time depending upon the social

4 and political context. This argument is unpersuasive. As the Supreme Court has recognized,

5 the constitutionality of a particular governmental action may depend on the larger social

6 context in which that action occurs. See Shelby Cty., Ala. v. Holder, 570 U.S. 529, 553-557

7 (2013) (striking down Section 4 of the Voting Rights Act because, inter alia, the

8 preclearance formula set forth in that section was based on “decades-old data relevant to
decades-old problems, rather than current data reflecting current needs”); Grutter v. 9
Bollinger, 539 U.S. 306, 342-43 (2003) (explaining that “race-conscious admissions policies 10
must be limited in time” and predicting that 25 years later affirmative action would no longer 11
be necessary or constitutionally justified). Ultimately, Secretary Ross’s primary obligation 12
under the Constitution is to ensure a reasonably accurate enumeration of the public, and to 13
attempt to design a survey that will achieve that goal in the year 2020. The fact that the
14 citizenship question may have been perfectly harmless in 1950, or that may be harmless
15 again in the year 2050 is of little consequence to the Secretary’s constitutional obligations

16 with respect to the accuracy of the 2020 Census.

17

The addition of a citizenship question to the 2020 Census cannot be said to bear a

18 “reasonable relationship to the accomplishment of an actual enumeration of the population.”

19 Wisconsin, 517 U.S. at 20. Secretary Ross’s decision thus violates the Enumeration Clause

20 of the Constitution.

21

VI. REMEDIES

22

A. Vacatur and Remand

23

In light of this Court’s ruling that Secretary Ross’s decision to include the citizenship

24 question on the 2020 Census violated the APA, the Secretary’s decision is hereby vacated

25 and remanded to the Department of Commerce. 5 U.S.C. § 706(2) (“[A] reviewing court

26 shall . . . hold unlawful and set aside agency action found to be” in violation of the APA).

27

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B. Injunctive Relief20 1
A plaintiff seeking a permanent injunction must satisfy four requirements: “(1) that it 2
has suffered an irreparable injury; (2) that remedies available at law, such as monetary 3
damages, are inadequate to compensate for that injury; (3) that, considering the balance of 4
hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that
5 the public interest would not be disserved by a permanent injunction.” eBay Inc. v.
6 MercExchange, L.L.C., 547 U.S. 388, 391 (2006). The decision whether to grant injunctive

7 relief ultimately falls within a court’s equitable discretion. Id.

8

Here, each of the four elements is satisfied. It is simply beyond dispute that a loss of

9 political representation to the state of California, among other harms identified by Plaintiffs,

10 qualifies as irreparable harm that cannot be remedied at law. Moreover, given the likely

11 harm to the quality of the census and the absence of any valid basis for Secretary Ross’s

12 decision, the balance of the hardships and the public interest both favor barring Defendants

13 from including the citizenship question in the census questionnaire. Accordingly, an

14 injunction is appropriate here. The proper scope of the injunction, however, requires

15 additional analysis.

16

As previously noted, this Court is mindful of concerns regarding the authority and

17 propriety of an individual district judge in one judicial district issuing an injunction of

18 nationwide application. In light of the unitary nature of the question at issue, by definition no

19 injunctive relief could be limited to only one geographic area or to only certain litigants. Put

20 simply, the citizenship question is either on or off the 2020 Census, thereby practically

21 requiring an injunction nationwide in scope.

22

The appropriate terms of this injunction depend on which claim forms the basis for

23 relief. To the extent that the injunction relates solely to the APA claim, the reasoning in New

24 York et al. v. Department of Commerce, et al., No. 18-cv-2921 (S.D.N.Y.) is persuasive. As

25 20 Plaintiffs also request declaratory relief. In light of the vacatur of Secretary Ross’s
26 decision and the injunction barring Defendants from including the citizenship question on the 2020 Census, providing declaratory relief would serve little useful purpose and is
27 therefore denied.

28 CASE NO. 18-cv-01865-RS; 18-cv-02279-RS
125

Case 3:18-cv-02279-RS Document 196 Filed 03/06/19 Page 126 of 126

United States District Court

1 explained in that order, “an injunction is necessary to make the Court’s vacatur effective, as

2 it prevents Secretary Ross from arriving at the same decision without curing the problems

3 identified in this Opinion.” Id. at 272. Accordingly, with respect to the APA violation,

4 Defendants are enjoined from including the citizenship question on the 2020 Census unless:

5 (1) they establish that direct inquiries regarding citizenship are necessary given the “kind,

6 timeliness, quality and scope of the statistics required” and that administrative records will

7 not suffice, 13 U.S.C. § 6(c); (2) they identify new circumstances that necessitate the last

8 minute addition of the citizenship question to the census, id §141(f)(3); and (3) Secretary

9 Ross considers all relevant factors and evidence, and sets forth the actual basis for his

10 decision.

11

The Enumeration Clause violation, however, requires a more expansive injunction.

12 The record in this case has clearly established that including the citizenship question on the

13 2020 Census is fundamentally counterproductive to the goal of obtaining accurate

14 citizenship data about the public. This question is, however, quite effective at depressing

15 self-response rates among immigrants and noncitizens, and poses a significant risk of

16 distorting the apportionment of congressional representation among the states. In short, the

17 inclusion of the citizenship question on the 2020 Census threatens the very foundation of our

18 democratic system—and does so based on a self-defeating rationale. In light of these

19 findings, Defendants do not get another bite at the apple. Defendants are hereby enjoined

20 from including the citizenship question on the 2020 Census, regardless of any technical

21 compliance with the APA.

22

23 IT IS SO ORDERED.

24

25 Dated: March 6, 2019

26

____________________________________

27

RICHARD SEEBORG United States District Judge

28 CASE NO. 18-cv-01865-RS; 18-cv-02279-RS
126

 
 Case 3:18-cv-02279-RS Document 227 Filed 08/01/19 Page 1 of 13

1 MANATT, PHELPS & PHILLIPS, LLP JOHN F. LIBBY (Bar No. CA 128207)
2 E-mail: jlibby@manatt.com JOHN W. MCGUINNESS (Bar No. CA 277322)
3 E-mail: jmcguinness@manatt.com EMIL PETROSSIAN (Bar No. CA 264222)
4 E-mail: epetrossian@manatt.com 11355 West Olympic Boulevard
5 Los Angeles, California 90064 Telephone: (310) 312-4000
6 Facsimile: (310) 312-4224

7 Attorneys for Plaintiffs CITY OF SAN JOSE and BLACK ALLIANCE
8 FOR JUST IMMIGRATION

9 [Additional Counsel Listed on Signature Page]

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12

13

Case No. 3:18-cv-02279

CITY OF SAN JOSE, a municipal corporation;

14 and BLACK ALLIANCE FOR JUST

Judge: Hon. Richard G. Seeborg

IMMIGRATION, a California Non-Profit

Dept: 3

15 Corporation,

PLAINTIFFS’ NOTICE

16

Plaintiffs,

OF UNOPPOSED MOTION TO ENTER

FINAL JUDGMENT AFTER REMAND;

17

v.

MEMORANDUM OF POINTS AND

AUTHORITIES IN SUPPORT

18 WILBUR L. ROSS, JR., in his official capacity THEREOF; [PROPOSED] ORDER

as Secretary of the U.S. Department of

19 Commerce; et al.,

20

Defendants.

21

22

23

24

25

26

27

28

PLAINTIFFS’ UNOPPOSED MOTION TO ENTER FINAL JUDGMENT AFTER REMAND AND [PROPOSED] ORDER (3:18-CV-02779)

Case 3:18-cv-02279-RS Document 227 Filed 08/01/19 Page 2 of 13

1

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2

PLEASE TAKE NOTICE THAT on September 12, 2019, at 1:30 p.m., or as soon thereafter

3 as the matter may be heard, before the Honorable Richard Seeborg in Department 3 of the United

4 States District Court for the Northern District of California, located at 450 Golden Gate Avenue,

5 San Francisco, California 94102, Plaintiffs City of San Jose and Black Alliance for Just

6 Immigration (“Plaintiffs”) will and hereby do move this Court to enter Plaintiffs’ [Proposed]

7 Final Judgment After Remand, Order of Vacatur, and Permanent Injunction, attached as “Exhibit

8 A” to this motion.

9

This motion is based on this Notice of Motion, the accompanying Memorandum of Points

10 and Authorities, the accompanying [Proposed] Final Judgment After Remand, Order of Vacatur,

11 and Permanent Injunction, the papers and pleadings on file in this action, and such matters as may

12 be presented to the Court at or before the time of the hearing.

13

Although Plaintiffs have filed this request as a noticed motion in accordance with Local

14 Rule 7-1, Defendants do not oppose this motion and the parties do not require a hearing.

15

16

Respectfully submitted,

17 Dated: July 30, 2019

MANATT, PHELPS & PHILLIPS, LLP

18

By: /s/ John F. Libby

19

John F. Libby John W. McGuinness

20

Emil Petrossian Andrew Case

21

Ana G. Guardado Olufunmilayo O. Showole

22

11355 West Olympic Boulevard Los Angeles, California 90064

23

Telephone: (310) 312-4000 Facsimile: (310) 312-4224

24

25

26

27

28

PLAINTIFFS’ UNOPPOSED MOTION TO ENTER FINAL JUDGMENT AFTER REMAND AND [PROPOSED] ORDER (3:18-CV-02779)

Case 3:18-cv-02279-RS Document 227 Filed 08/01/19 Page 3 of 13

1

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS

UNDER LAW

2

Kristen Clarke

Jon M. Greenbaum

3

Ezra D. Rosenberg

Dorian L. Spence

4

1500 K Street, NW, Suite 900

Washington, DC 20005

5

Telephone: (202) 662-8600

Facsimile: (202) 783-0857

6

PUBLIC COUNSEL

7

Mark Rosenbaum

610 South Ardmore Avenue

8

Los Angeles, California 90005

Telephone: (213) 385-2977

9

Facsimile: (213) 385-9089

10

CITY OF SAN JOSE

Richard Doyle, City Attorney

11

Nora Frimann, Assistant City Attorney

Office of the City Attorney

12

200 East Santa Clara Street, 16th Floor

San José, California 95113-1905

13

Telephone Number: (408) 535-1900

Facsimile Number: (408) 998-3131

14

E-Mail: cao.main@sanjoseca.gov

15

Attorneys for Plaintiffs CITY OF SAN JOSE and

BLACK ALLIANCE FOR JUST IMMIGRATION

16

17

18

19

20

21

22

23

24

25

26

27

28

PLAINTIFFS’ UNOPPOSED MOTION TO ENTER FINAL JUDGMENT AFTER REMAND AND [PROPOSED] ORDER (3:18-CV-02779)

Case 3:18-cv-02279-RS Document 227 Filed 08/01/19 Page 4 of 13

1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3

Following the Supreme Court’s decision in Department of Commerce v. New York, 139 S.

4 Ct. 2551, 2019 WL 2619473 (2019), Plaintiffs and Defendants conferred about the terms of a

5 proposed final judgment in this action. Plaintiffs now request that the Court enter the [Proposed]

6 Final Judgment After Remand, Order of Vacatur, and Permanent Injunction attached hereto as

7 “Exhibit A.” Defendants do not oppose this motion.

8 II. PROCEDURAL BACKGROUND

9

This Court entered final judgment in this action on March 13, 2019. ECF No. 197. The

10 same day, Defendants filed a notice of appeal of the final judgment. ECF No. 198. On March 18,

11 2019, Defendants filed a petition for writ of certiorari before judgment in the United States

12 Supreme Court. Petition for a Writ of Certiorari Before Judgment, Ross, et al. v. San Jose, et al,

13 --- S. Ct. ---, 2019 WL 1258816 (2019).

14

On June 27, 2019, the United States Supreme Court issued its opinion in the case of

15 Department of Commerce v. New York, affirming the portion of the district court’s judgment

16 holding that Secretary Ross’s decision to add a citizenship question to the 2020 Census violates

17 the Administrative Procedure Act. Dep’t of Commerce v. New York, 139 S. Ct. at 2573-2576.

18

On June 28, 2019, the Supreme Court granted Defendants’ petition for writ of certiorari

19 before judgment in this action. Its order directed as follows: “The judgment is vacated, and the

20 case is remanded to the United States Court of Appeals for the Ninth Circuit for further

21 consideration in light of Department of Commerce v. New York, 588 U.S. ____ (2019).” Ross, et

22 al. v. San Jose, et al, --- S. Ct. ---, 2019 WL 1243674 (2019).

23

A writ of mandate subsequently issued from the Supreme Court to the Ninth Circuit Court

24 of Appeals, and on July 30, 2019, the Ninth Circuit Court of Appeals remanded the action to this

25 Court. ECF No. 224.

26 III. PLAINTIFFS’ REQUEST TO ENTER FINAL JUDGMENT AFTER REMAND

27

Following the Supreme Court’s decision in Department of Commerce v. New York, on

28 July 11, 2019, the President issued an Executive Order stating that “[a]fter examining every

PLAINTIFFS’ UNOPPOSED MOTION TO ENTER FINAL JUDGMENT AFTER REMAND AND [PROPOSED] ORDER (3:18-CV-02779)

Case 3:18-cv-02279-RS Document 227 Filed 08/01/19 Page 5 of 13

1 possible alternative, the Attorney General and the Secretary of Commerce have informed me that

2 the logistics and timing for carrying out the census, combined with delays from continuing

3 litigation, leave no practical mechanism for including the [citizenship] question on the 2020

4 decennial census.” Exec. Order 13,880, § 1, 84 Fed. Reg. 33,821, 33,821 (July 16, 2019) (“The

5 [Supreme] Court’s ruling . . . has now made it impossible, as a practical matter, to include a

6 citizenship question on the 2020 decennial census questionnaire.”).

7

Accordingly, the parties agree that entry of a final judgment is appropriate and have

8 conferred about the language of the [Proposed] Final Judgment After Remand, Order of Vacatur,

9 and Permanent Injunction. The proposed judgment permanently enjoins Defendants from

10 including a citizenship question on the 2020 decennial census questionnaire; from delaying the

11 process of printing the 2020 decennial census questionnaire after June 30, 2019, for the purpose

12 of including a citizenship question; and from asking persons about their citizenship status on the

13 2020 census questionnaire or otherwise asking a citizenship question as part of the 2020

14 decennial census.

15

Defendants have informed Plaintiffs that they do not oppose this motion and that they

16 intend to file a notice of non-opposition shortly after it is filed.

17

Plaintiffs therefore ask this Court to enter the attached [Proposed] Final Judgment After

18 Remand, Order of Vacatur, and Permanent Injunction.

19

20 21 Dated: July 30, 2019

Respectfully submitted, MANATT, PHELPS & PHILLIPS, LLP

22

By: /s/ John F. Libby

23

John F. Libby

John W. McGuinness

24

Emil Petrossian

Andrew Case

25

Ana G. Guardado

Olufunmilayo O. Showole

26

11355 West Olympic Boulevard

Los Angeles, California 90064

27

Telephone: (310) 312-4000

Facsimile: (310) 312-4224

28

PLAINTIFFS’ UNOPPOSED MOTION TO ENTER FINAL JUDGMENT AFTER REMAND AND [PROPOSED] ORDER (3:18-CV-02779)

Case 3:18-cv-02279-RS Document 227 Filed 08/01/19 Page 6 of 13

1

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS

2

UNDER LAW

Kristen Clarke

3

Jon M. Greenbaum

Ezra D. Rosenberg

4

Dorian L. Spence

1500 K Street, NW, Suite 900

5

Washington, DC 20005

Telephone: (202) 662-8600

6

Facsimile: (202) 783-0857

7

PUBLIC COUNSEL

Mark Rosenbaum

8

610 South Ardmore Avenue

Los Angeles, California 90005

9

Telephone: (213) 385-2977

Facsimile: (213) 385-9089

10

CITY OF SAN JOSE

11

Richard Doyle, City Attorney

Nora Frimann, Assistant City Attorney

12

Office of the City Attorney

200 East Santa Clara Street, 16th Floor

13

San José, California 95113-1905

Telephone Number: (408) 535-1900

14

Facsimile Number: (408) 998-3131

15

E-Mail: cao.main@sanjoseca.gov

16

Attorneys for Plaintiffs CITY OF SAN JOSE and BLACK ALLIANCE FOR JUST IMMIGRATION

17

18

19

20

21

22

23

24

25

26

27

28

PLAINTIFFS’ UNOPPOSED MOTION TO ENTER FINAL JUDGMENT AFTER REMAND AND [PROPOSED] ORDER (3:18-CV-02779)

Case 3:18-cv-02279-RS Document 227 Filed 08/01/19 Page 7 of 13

1

FILER’S ATTESTATION

2

Pursuant to Civil Local Rule 5-1(i)(3), regarding signatures, Barbara Gasik hereby attests

3 that concurrence in the filing of this document has been obtained from all the signatories above.

4 Dated: July 30, 2019 5

/s/ Barbara Gasik Barbara Gasik

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PLAINTIFFS’ UNOPPOSED MOTION TO ENTER FINAL JUDGMENT AFTER REMAND AND [PROPOSED] ORDER (3:18-CV-02779)

Case 3:18-cv-02279-RS Document 227 Filed 08/01/19 Page 8 of 13

1

[PROPOSED] ORDER

2

Having considered Plaintiffs’ Unopposed Motion to Enter Judgment After Remand

3 (“Motion”), and good cause appearing, the Court orders as follows:

4

1. Plaintiffs’ Motion is GRANTED.

5

2. To the extent that the March 13, 2019 judgment in this action, ECF No. 197, is still

6 in place, that judgment is hereby VACATED.

7

3. The Court shall adopt and enter the [Proposed] Final Judgment After Remand,

8 Order of Vacatur, and Permanent Injunction attached as “Exhibit A” to the Motion.

9

10

IT IS SO ORDERED.

11

12

Dated: __8_/_1_/__2_0_1_9_______

13

14

HON. RICHARD SEEBORG United States District Judge

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PLAINTIFFS’ UNOPPOSED MOTION TO ENTER FINAL JUDGMENT AFTER REMAND AND [PROPOSED] ORDER (3:18-CV-02779)

Case 3:18-cv-02279-RS Document 227 Filed 08/01/19 Page 9 of 13
Exhibit A

Case 3:18-cv-02279-RS Document 227 Filed 08/01/19 Page 10 of 13

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

11 STATE OF CALIFORNIA, et al.,
12 Plaintiffs,
13 v.
14 WILBUR L. ROSS, et al.,
15 Defendants.
16

Case No. 18-cv-01865-RS
18-cv-02279-RS
[PROPOSED] FINAL JUDGMENT AFTER REMAND, ORDER OF VACATUR, AND PERMANENT INJUNCTION

17 CITY OF SAN JOSE, et al.,

18

Plaintiffs,

19

v.

20 WILBUR L. ROSS, et al.,

21

Defendants.

22

23

24

In accordance with the Court’s March 6, 2019 Findings of Fact and Conclusions of Law,

25 the June 28, 2019 order of the United States Supreme Court in Wilbur L. Ross, Secretary of

26 Commerce, et al. v. California, et al., No. 18-1214, the Unopposed Motions to Enter Final

27 Judgment After Remand filed by the Plaintiffs on July 30, 2019, and Rule 58(b)(2)(B) of the

28 Federal Rules of Civil Procedure, it is ORDERED, ADJUDGED, and DECREED as follows:

Case 3:18-cv-02279-RS Document 227 Filed 08/01/19 Page 11 of 13

1

FINAL JUDGMENT AFTER REMAND

2

In Case No. 18-cv-1865-RS:

3

• Final judgment is entered for Plaintiffs and against Defendants on Plaintiffs’ Second

4

Cause of Action (Violation of APA; 5 U.S.C. § 706).

5

• Final judgment is entered for Defendants and against Plaintiffs on Plaintiffs’ First Cause

6

of Action (Violation of Constitution’s “Actual Enumeration” Mandate; U.S. Const.

7

art. I, § 2, cl. 3).

8

In Case No. 18-cv-2279-RS:

9

• Final judgment is entered for Plaintiffs and against Defendants on Plaintiffs’ Fourth Cause

10

of Action (Violation of APA’s Arbitrary and Capricious Standard; 5 U.S.C.

11

§ 706(2)(A)).

12

• Final judgment is entered for Defendants and against Plaintiffs on Plaintiffs’ First Cause

13

of Action (Violation of Constitution’s “Actual Enumeration” Mandate; U.S. Const.

14

art. I, § 2, cl. 3); Plaintiffs’ Second Cause of Action (Violation of the Constitution’s

15

Apportionment Clause; U.S. Const. amend. XIV, § 2); and Plaintiffs’ Third Cause of

16

Action (Violation of APA’s Requirement that Administrative Action Be in Accordance

17

with Law, Not Contrary to Constitutional Right, and Not Beyond Statutory Authority;

18

5 U.S.C. § 706(2)).

19

VACATUR AND REMAND

20

Secretary Ross’s March 26, 2018 decision to include a citizenship question on the 2020

21 Census is hereby VACATED. In light of the permanent injunction below, the decision is not

22 remanded to the Department of Commerce.

23

PERMANENT INJUNCTION

24

Defendants, including the Secretary of Commerce in his official capacity, the Director of

25 the Census Bureau in his official capacity, and any successors to those offices, together with their

26 agents, servants, employees, attorneys, and other persons who are in active concert or

27 participation with the foregoing, see Fed. R. Civ. P. 65(d)(2), are hereby PERMANENTLY

28 ENJOINED from including a citizenship question on the 2020 decennial census questionnaire;

2

Case 3:18-cv-02279-RS Document 227 Filed 08/01/19 Page 12 of 13

1 from delaying the process of printing the 2020 decennial census questionnaire after June 30, 2019

2 for the purpose of including a citizenship question; and from asking persons about citizenship

3 status on the 2020 census questionnaire or otherwise asking a citizenship question as part of the

4 2020 decennial census.

5

The Court will retain jurisdiction in these cases to enforce the terms of this Order until the

6 2020 Census results are processed and sent to the President by December 31, 2020.

7

8

IT IS SO ORDERED.

9

10

Dated: ______________, 2019

11

RICHARD SEEBORG

12

United States District Judge

13

CASE NOS. 18-cv-01865-RS, 18-cv-02279-RS

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

Case 3:18-cv-02279-RS Document 227 Filed 08/01/19 Page 13 of 13

1

2

CERTIFICATE OF SERVICE

3

I hereby certify that on July 30, 2019, I served the foregoing with the Clerk of Court using

4 the CM/ECF system which will automatically send email notification of such filing to the

5 attorneys of record.

6 Dated: July 30, 2019 7

/s/ Barbara Gasik Barbara Gasik

8

9

10

11

12

13

14

15

16

17

18

19

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21

22

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24

25

26

27

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PLAINTIFFS’ UNOPPOSED MOTION TO ENTER FINAL JUDGMENT AFTER REMAND AND [PROPOSED] ORDER (3:18-CV-02779)

 
 Case 3:18-cv-02279-RS Document 228 Filed 08/01/19 Page 1 of 3

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

11 STATE OF CALIFORNIA, et al.,
12 Plaintiffs,
13 v.
14 WILBUR L. ROSS, et al.,
15 Defendants.
16

Case No. 18-cv-01865-RS
18-cv-02279-RS
[PROPOSED] FINAL JUDGMENT AFTER REMAND, ORDER OF VACATUR, AND PERMANENT INJUNCTION

17 CITY OF SAN JOSE, et al.,

18

Plaintiffs,

19

v.

20 WILBUR L. ROSS, et al.,

21

Defendants.

22

23

24

In accordance with the Court’s March 6, 2019 Findings of Fact and Conclusions of Law,

25 the June 28, 2019 order of the United States Supreme Court in Wilbur L. Ross, Secretary of

26 Commerce, et al. v. California, et al., No. 18-1214, the Unopposed Motions to Enter Final

27 Judgment After Remand filed by the Plaintiffs on July 30, 2019, and Rule 58(b)(2)(B) of the

28 Federal Rules of Civil Procedure, it is ORDERED, ADJUDGED, and DECREED as follows:

Case 3:18-cv-02279-RS Document 228 Filed 08/01/19 Page 2 of 3

1

FINAL JUDGMENT AFTER REMAND

2

In Case No. 18-cv-1865-RS:

3

• Final judgment is entered for Plaintiffs and against Defendants on Plaintiffs’ Second

4

Cause of Action (Violation of APA; 5 U.S.C. § 706).

5

• Final judgment is entered for Defendants and against Plaintiffs on Plaintiffs’ First Cause

6

of Action (Violation of Constitution’s “Actual Enumeration” Mandate; U.S. Const.

7

art. I, § 2, cl. 3).

8

In Case No. 18-cv-2279-RS:

9

• Final judgment is entered for Plaintiffs and against Defendants on Plaintiffs’ Fourth Cause

10

of Action (Violation of APA’s Arbitrary and Capricious Standard; 5 U.S.C.

11

§ 706(2)(A)).

12

• Final judgment is entered for Defendants and against Plaintiffs on Plaintiffs’ First Cause

13

of Action (Violation of Constitution’s “Actual Enumeration” Mandate; U.S. Const.

14

art. I, § 2, cl. 3); Plaintiffs’ Second Cause of Action (Violation of the Constitution’s

15

Apportionment Clause; U.S. Const. amend. XIV, § 2); and Plaintiffs’ Third Cause of

16

Action (Violation of APA’s Requirement that Administrative Action Be in Accordance

17

with Law, Not Contrary to Constitutional Right, and Not Beyond Statutory Authority;

18

5 U.S.C. § 706(2)).

19

VACATUR AND REMAND

20

Secretary Ross’s March 26, 2018 decision to include a citizenship question on the 2020

21 Census is hereby VACATED. In light of the permanent injunction below, the decision is not

22 remanded to the Department of Commerce.

23

PERMANENT INJUNCTION

24

Defendants, including the Secretary of Commerce in his official capacity, the Director of

25 the Census Bureau in his official capacity, and any successors to those offices, together with their

26 agents, servants, employees, attorneys, and other persons who are in active concert or

27 participation with the foregoing, see Fed. R. Civ. P. 65(d)(2), are hereby PERMANENTLY

28 ENJOINED from including a citizenship question on the 2020 decennial census questionnaire;

2

Case 3:18-cv-02279-RS Document 228 Filed 08/01/19 Page 3 of 3

1 from delaying the process of printing the 2020 decennial census questionnaire after June 30, 2019

2 for the purpose of including a citizenship question; and from asking persons about citizenship

3 status on the 2020 census questionnaire or otherwise asking a citizenship question as part of the

4 2020 decennial census.

5

The Court will retain jurisdiction in these cases to enforce the terms of this Order until the

6 2020 Census results are processed and sent to the President by December 31, 2020.

7

8

IT IS SO ORDERED.

9

10

Dated: ___8_/_1_________, 2019

11

RICHARD SEEBORG

12

United States District Judge

13

CASE NOS. 18-cv-01865-RS, 18-cv-02279-RS

14

15

16

17

18

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28

3

 
 Supreme Court of the United States Office of the Clerk
Washington, DC 20543-0001

July 30, 2019

Scott S. Harris Clerk of the Court (202) 479-3011

Clerk United States Court of Appeals
for the Ninth Circuit 95 Seventh Street (Zip: 94103-1526) P. O. Box 193939 San Francisco, CA 94119-3939

Re: Wilbur L. Ross, Secretary of Commerce, et al. v. California, et al., No. 18-1214 (Your docket Nos. 19-15456, 19-15457)

Dear Clerk:

Attached please find a certified copy of the judgment of this Court in the above-entitled case.

Sincerely, SCOTT S. HARRIS, Clerk By

Enc. cc: All counsel of record

Hervé Bocage Judgments/Mandates Clerk

Supreme Court of the United States Office of the Clerk
Washington, DC 20543-0001
Scott S. Harris Clerk of the Court (202) 479-3011
July 30, 2019
Mr. John F. Libby, Esq. Manatt, Phelps & Phillips, LLP 11355 West Olympic Blvd. Los Angeles, CA 90064
Re: Wilbur L. Ross, Secretary of Commerce, et al. v. California, et al., No. 18-1214
Dear Mr. Libby:
Attached please find a certified copy of the judgment of this Court in the above-entitled case.
Sincerely,
SCOTT S. HARRIS, Clerk
By
Herve’ Bocage Judgments/Mandates Clerk
cc: Clerk, USCA for the Ninth Circuit (Your docket Nos. 19-15456, 19-15457)

Supreme Court of the United States
No. 18-1214
WILBUR L. ROSS, SECRETARY OF COMMERCE, ET AL., Petitioners
v. CALIFORNIA, ET AL.
ON PETITION FOR WRIT OF CERTIORARI to the United States Court of Appeals for the Ninth Circuit.
THIS CAUSE having been submitted on the petition for writ of certiorari and the response thereto.
ON CONSIDERATION WHEREOF, it is ordered and adjudged by this Court that the petition for writ of certiorari before judgment is granted. The judgment of the above court in this cause is vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit for consideration in light of Department of Commerce v. New York, 588 U. S. ___ (2019).
June 28, 2019