The electorate should choose its representatives, not the other way around.

On March 26, 2018, Secretary of Commerce Wilbur Ross directed the Census Bureau to include a question regarding citizenship on the 2020 census short form distributed to all households.  Memorandum from Wilbur Ross to Karen Dunn Kelley, Under Secretary for Economic Affairs, Department of Commerce re Reinstatement of a Citizenship Question on the 2020 Decennial Census Questionnaire dated March 26, 2018.  In his Memorandum, Secretary Ross cited a December 17, 2017 request from the Department of Justice (“DOJ”) for such a change, Letter from Arthur E. Gary, Justice Management Division, to Ron Jarmin, U.S. Census Bureau dated December 17, 2017. As it turns out, Secretary Ross and his senior staff had solicited the request, Kravitz v. Department of Commerce, Dkt. No. 18 Civ. 1041, Supplemental Memorandum by Secretary of Commerce William Ross Regarding Administrative Record in Census Litigation (D. Md.); Tara Bahranpour, Commerce Secretary Suggested Citizenship Question to Justice Department, Wash. Post (June 22, 2018).   This is the first of four posts regarding the litigation in the U.S. District Court in the Southern District of New York challenging the Secretary’s decision.

Secretary Ross’ effort to have a citizenship question added began almost immediately after his swearing‑in.  The Secretary’s Director of Policy and Strategic Planning, Earl Comstock, raised the issue with James McHenry, the Director of the Executive Office for Immigration Review within the Department of Justice.  McHenry referred Comstock to the Department of Homeland Security (“DHS”), in particular Gene Hamilton, then a Senior Counselor to the DHS Secretary.  Brennan Center Documents at 1137 (available here).  After several conversations, Hamilton suggested that the matter should be handled by the Justice Department, which did not pursue the matter.  Id. The Secretary’s frustration and the Commerce Department’s involvement in soliciting the request DOJ ultimately made is illustrated by a May 2, 2017 email exchange between Secretary Ross and Comstock. Brennan Center Documents at 2386.   Ross complained that some official or entity, presumably within the Department of Commerce, had agreed with Congress on the questions to be asked on the census, and that “he was mystified why nothing have [sic] been done in response to my months old request that we include the citizenship question.”  Id. (emphasis added).  Comstock responded: “We need to work with Justice to get them to request that citizenship be added back as a census question, and we have the court cases to illustrate that DOJ has a legitimate need for the question to be included.”  See also, Brennan Center Documents at 1198, 1206.  Ultimately, after an intercession from Attorney General Jefferson B. Sessions, III, id. at 1207, 1332, DOJ ultimately sent a“request” to the Commerce Department.

The Justice Department’s December 17, 2017 letter asserted that “multiple federal courts of appeals have held that, where citizenship rates are at issue in a vote-dilution case, citizen voting-age population is the proper metric for determining whether a racial group could constitute a majority in a single member district.”  Id.  (emphasis added).  More particularly, plaintiffs bringing cases under section 2 of the Voting Rights Act (“section 2”) must have the means to prove vote-dilution where “a legislature or a court . . . draw[s] a single-member district in which a numerical racial minority group in a jurisdiction was a majority of the total voting-age population in that district but ‘continued to be defeated at the polls’ because it was not a majority of the citizen voting-age population.”  Id.  DOJ explained that American Community Survey (“ACS”), a sampling survey sent to only around one in every thirty-eight households each year, is currently the only Census Bureau survey that collects information regarding citizenship and citizen voting-age population.  Id.  After noting the ACS Survey’s imperfections, DOJ asserted: “the Department believes that decennial census questionnaire data regarding citizenship, if available, would be more appropriate for use in redistricting and in Section 2 litigation than the ACS citizenship estimates.”  It also urged the Census Bureau to continue asking the citizenship question on the ACS.

The Census Bureau had discontinued use of the citizenship question on the questionnaire sent to all households after the 1950 census.   The decision reflected a consistent concern among Census Bureau professionals that such a question would lead to an undercount.  State of New York v. U.S. Department of Commerce, 2018 WL 3581350 *5 (S.D.N.Y.).  Undocumented aliens will fear returning a form that asks them to identify themselves as non-citizens.  Id.  The Census Bureau’s Chief Scientist, John M. Abowd, echoed those concerns in a January 19, 2018 memorandum to Secretary Ross that is included in the administrative record filed in State of New York v. U.S. Department of Commerce.  John M. Abowd, Technical Review of the Department of Justice Request to Add a Citizenship Question to the 2020 Census (Jan. 19, 2018) (Administrative Record at 1277, 1280, 1281).

Secretary Ross’ decision to include the citizenship question has spawned two now-consolidated lawsuits in the U.S. District Court for the Southern District of New York.  In the first, New York v. Department of Commerce, several states have challenged the decision on the grounds that it violates the U.S. Constitution’s Enumeration Clause, U.S. Const., art. I, §2, cl.3, and the Administrative Procedure Act (“APA”).  Amended Complaint, New York v. Department of Commerce, Dkt. No. 18 Civ. 2921, ¶¶176-80, 183, ¶¶187-195 (S.D.N.Y. April 30, 2018).  (The Amended Complaint and several other court filings in the case can be accessed here.)  In the second, several non-governmental organizations, led by the New York Immigration Coalition, alleged that Secretary Ross had violated the Fifth Amendment Due Process Clause’s implicit equal protection guarantee, Complaint, New York Immigration Coalition v. Department of Commerce, Dkt. No. 18 Civ. 5025 ¶¶193-200 (S.D.N.Y. June 6, 2018), by intentionally discriminating against “Latinos, Asian-Americans, Arab-Americans, and immigrant communities of color generally,” id. at ¶195.  That Complaint is available here.  They also alleged that Secretary Ross’s decision violated the Enumeration Clause and the APA.  Id. at ¶¶ 201-207, 208-212.

New York alleged that Secretary Ross’ action was “arbitrary and capricious,” in violation of the APA, in several respects.  First, DOJ’s claim that effective section 2 enforcement requires person-by-person citizenship data was unsupported, and indeed, factually erroneous.  Amended Complaint, New York v. Department of Commerce, at ¶189.  Second, the decision had reversed decades of settled and well-considered practice without reasoned explanation, disregarding the factual basis underlying that settled practice.  Id. at ¶190.  Third, the Secretary entirely failed to consider at least two important aspects of the problem, namely the risk of an inaccurate count and the availability of alternative data that serves the federal government’s efforts to enforce section 2 equally well.  Id. at ¶191.  Fourth, the decision was reached “without complying with Defendants’ own data quality requirements and testing standards.”  Id. at ¶192.  Fifth, Secretary Ross’ stated reason for his decision was a pretext, as evidenced by the “unfounded and conflicting rationales” he offered for his decision.  Id. at ¶193.  The non-governmental plaintiffs’ asserted bases for invalidating Secretary Ross’ decision as “arbitrary and capricious” were similar, though more detailed.

On July 26, District Judge Furman rejected the Commerce Department’s motion to dismiss the Complaint.  State of New York v. U.S. Department of Commerce, 2018 WL 3581350 (S.D.N.Y.).  He held that the governmental and non-governmental plaintiffs have standing and that their challenges raised no non-justiciable political questions.  Id. at *6-*15.  He rejected the claims that the Enumeration Clause precluded the Census Bureau from posing citizenship questions.  Id. at *19-*22.  He recounted the history of inclusion of the citizenship question in the past (from the 1790 until 1950), and inclusion of various other demographic questions not solely related to the population count.  He noted the approval of such questions by all three branches of government.  Accordingly, he determined that it was too late in the day to hold that requesting demographic information violated the Enumeration Clause per se.  Id. at *22.  However, plaintiffs could pursue claims that Secretary Ross’ decision was “arbitrary and capricious,” id. at *24, and motivated by impermissible racial/ethnic bias, id. at *24-*27.

With respect to the later, Judge Furman outlined the standard Arlington Heights analysis, Village of Arlington Heights v. Metropolitan Housing. Development Corp., 429 U.S. 252, 266 (1977).  In ferreting out racial/ethnic bias,

[the question of] whether the impact of the action “‘bears more heavily on one race than another’ may provide an important starting point.” Arlington Heights, 429 U.S. at 266 (quoting Washington v. Davis, 426 U.S. 229, 242 (1976)). Unless a “clear pattern, unexplainable on grounds other than race, emerges,” however, “impact alone is not determinative, and the Court must look to other evidence.” Id. (footnote omitted). That “other evidence” includes: (1) “[t]he historical background of the decision … particularly if it reveals a series of official actions taken for invidious purposes”; (2) “[t]he specific sequence of events leading up the challenged decision”; (3) “[d]epartures from the normal procedural sequence”; (4) “[s]ubstantive departures …, particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached”; and (5) “[t]he legislative or administrative history … especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports.” Id. at 267-68. “In some extraordinary instances,” evidence of discriminatory animus may also come from the testimony of decisionmakers. Id. at 268.

New York v. Dep’t of Commerce, at *25.  Judge Furman noted there was evidence for each indicia of illicit intent.  He dismissed the Commerce Department’s reliance on Trump v. Hawaii, — U.S. —, 138 S.Ct. 2392 (2018)(upholding the “travel ban” instituted by President Trump), asserting that the Court’s disregard of the President’s motive in that case was limited to cases involving national security.  New York v. Dep’t of Commerce, at *27.

The 1320-page administrative record the Department of Commerce filed is available here.  The plan for Discovery is available here.  Discovery, which seems to consist of developing expert reports, is due to end October 12, 2018.

Three Motives

Perhaps Secretary Ross, like some others in the Administration, seeks to delegitimize undocumented aliens who remain in the United States, particularly those who have entered illegally.  It is noteworthy that Kansas Secretary of State Kris Kobach, then Co-Chair of the Presidential Advisory Commission on Electoral Integrity, wrote to Secretary Ross on July 14, 2017, following up on a conversation “a few months before.”  Kobach urged Secretary Ross to direct the Census Bureau to add a citizenship question to the census form.  Kobach asserted that not only did the lack of such information impair the federal government’s ability “to do a number of things accurately,” but also “leads to the problem that aliens who do not actually ‘reside’ in the United States are still counted for congressional apportionment purposes.”  New York v. Department of Commerce, Dkt. No. 18 Civ. 2921, Administrative Record at 764.

A census question that discourages aliens from registering their presence reduces the impact of undocumented aliens upon the distribution of representation within the country.  Indeed, recently there has been a conservative movement to base representation on eligibility to vote, replacing apportionment by population with apportionment by citizen voting age population (“CVAP”).  Of course, there is a history of non-citizens having the right to vote, Jamin B. Raskin, Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage, 141 U. Pa. L. Rev. 1391, 1397, 1399-1406 (1993)(barring aliens from voting began in the early 1900’s); see Peter J. Spiro, The (Dwindling) Rights and Obligations of Citizenship, 21 Wm & Mary Bill Rts. J. 899, 907 (2013), particularly during the Founding era.  There is also a history of enslaved African-Americans being counted, at least in part, to increase the voting power of “slave” states, U.S. Const., art. I, §2, cl.3 (the three-fifths Clause).  And currently, those who lack the right to vote, like disenfranchised felons, are used to increase the representation of voters in their states. See, Courtney Harris, Felon Voter Disenfranchisement (Council of State Governments May 27, 2014) (describing felon disenfranchisement laws).

No doubt the political implications of discouraging responses from undocumented aliens are also attractive to the current Administration; areas that have large numbers of undocumented aliens tend to be heavily Democratic.  And there is certainly a case to be made that there is a racial element in the Administration’s actions, motivated, at the very least, by the racial views of a substantial segment of the President’s base.  Tom Jacobs, Research Finds That Racism, Sexism, And Status Fears Drove Trump Voters (April 24, 2018); Tatishe M. Nteta and Brian Schaffner, New Poll Shows Trump Supporters More Likely to Fear a Majority-Minority U.S., Wash Post (March 5, 2016).

Future Posts

My future posts on this topic will discuss (1) the vulnerability of Secretary Ross’s decision under the APA “arbitrary and capricious” standard of review, (2) whether the Secretary’s decision rests on an the answer to an antecedent decision that Congress must make, namely whether representation is based on population or citizen voting-age population, (3) whether Secretary Ross may be required to testify regarding his decision, and (4) whether a partisan motivation in making the decision is sufficient to invalidate it.