This is the final post in my four-part series discussing Secretary of Commerce Wilbur Ross’ decision to add a citizenship question to the 2020 decennial census form.  The Secretary justified his decision by referencing the Department of Justice’s need for citizenship information in certain Voting Rights Act section 2 litigation.  Plaintiffs in the New York litigation have alleged that the Voting Rights Act justification was pretextual.

In Part I of this series (see here), I posited three potential “true” motives for the Secretary’s decision: (1) a desire to nullify the impact of undocumented aliens’ presence on the apportionment of representatives (the “policy” motive), (2) a desire for partisan political gain, by enhancing the representation of “red” states and Republican-leaning communities (the “partisan” motive), and (3) a desire to reduce the representation of “Latino, Asian-American, Arab-American communities, as well as immigrant communities of color generally” (the “invidious” motive).  In Part II (see here), I took the Secretary’s reasons statement at face value and analyzed his decision’s vulnerability under the Administrative Procedure Act (“APA”) section 706(a) “arbitrary and capricious” standard.  In Part III (see here), I assessed the potential for justifying the decision based on the policy motive — seeking to nullify the impact of undocumented aliens on apportionment.

In this post, I examine two issues related to a claim that Secretary Ross was actuated by the “partisan” or “invidious” motives noted above.

First, will Secretary Ross need to testify as to his motives?  (It appears that the District Judge in New York has permitted a deposition of John M. Gore, head of DOJ’s Civil Rights Division, who allegedly had ghost-written the DOJ “request” letter, but the Judge has refrained so far from ordering Secretary Ross to appear for a deposition.  Order, New York v. Department of Commerce, Dkt. No. 18 Civ. 2921 (filed August 17, 2018); Letter from Shankar Duraiswamy, Covington & Burling, LLP, to the Honorable George J. Hazel, U.S.D.J. re Kravitz v. U.S. Department of Commerce, dated July 13, 2018.)

Second, if the court concludes that Secretary Ross’ added the citizenship question to depress the count of undocumented aliens to pursue partisan interests, not racial or ethnic prejudices, should such a partisan motivation be sufficient to invalidate his decision?

Compelling Secretary Ross’ Testimony

Will Secretary Ross have to sit for a deposition and can such a deposition be made a part of the record?  Plaintiffs Fifth Amendment and APA claims involve two types of “review” — de novo trial and record review.

The Fifth Amendment Claim: De Novo Trial

The Fifth Amendment claim of racial and ethnic discrimination is presumably subject to trial de novo.  The claim resembles the Equal Protection Clause claim in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), discussed by the Judge Furman in his denial of the federal government’s motion to dismiss, State of New York v. U.S. Department of Commerce, 2018 WL 3581350 *25 (S.D.N.Y. July 26, 2018).  The Arlington Heights plaintiffs alleged that a local zoning board’s refusal to re-zone a large parcel was motivated by a desire to exclude racial minorities from the community.  Arlington Heights, 429 U.S. at 254, 258-59.  (Plaintiffs also raised claims under the Fair Housing Act.  Id. at 254, 271.)  The District Court conducted a bench trial.  Id. at 254, 259.  In its opinion upholding the District Court verdict, the Supreme Court observed that “in some extraordinary instances the [decision-makers] might be called to the stand at trial to testify concerning the purpose of [an] official action, although even then such testimony frequently will be barred by privilege.” Id. at 268 & n.18.  The Court explained that “judicial inquiries into legislative or executive motivation represent a substantial intrusion into the workings of other branches of government, and cautioned that “[p]lacing a decisionmaker on the stand is . . . ‘usually to be avoided.’” Id. at 268, n. 18 (citing Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971), and Fletcher v. Peck, 10 U.S. 87, 130-131 (1810)).

However, given that, leaving aside cases that involve explicit racial classifications, the sine qua non of an equal protection claim for racial discrimination, either under the Fifth or Fourteenth Amendments, is invidious intent, Washington v. Davis, 426 U.S. 229, 239, 244-45, 247-48 (1976), it is hard to understand such a strong presumption against compelling the testimony of high-level government officials who personally made decisions alleged to have been motivated by racial or ethnic animus. See, 3 MARTIN A. SCHWARTZ, SECTION 1983 LITIGATION §§8.09 & 8.10 (5th ed. 2017) (accessible on westlaw).  Moreover, given the likely strength of plaintiffs’ prima facie case in New York v. Department of Commerce, the trial judge could infer discriminatory intent even in the absence of testimony from Secretary Ross (or his “point person” on this issue), making the federal government’s attempt to quash any notice of deposition risky.

The APA Claim: Record Review

Plaintiffs’ APA claim, namely that Secretary Ross’ decision is “arbitrary and capricious,” is certainly subject to more limited review, namely review based on the administrative record.  Accordingly, Camp v. Pitts, 411 U.S. 138 (1973)(per curiam), and Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971), provide the starting points for analysis.  In Camp v. Pitts, the Court observed “the focal point for judicial review [under the arbitrary and capricious standard] should be the administrative record already in existence, not some new record made initially in the reviewing court.”  Id. at 142.  In Overton Park, the Court focused on supplementing the administrative record with testimony from administrative decision-makers, explaining:

The court may require the administrative officials who participated in the decision to give testimony explaining their action. Of course, such inquiry into the mental processes of administrative decisionmakers is usually to be avoided. United States v. Morgan, 313 U.S. 409, 422 (1941). And where there are administrative findings that were made at the same time as the decision, as was the case in Morgan, there must be a strong showing of bad faith or improper behavior before such inquiry may be made.

Id. at 420.

As of August 15, 2 Supreme Court cases, 72 Court of Appeals decisions, and 224 District Court opinions had referenced the above passage.    A quick perusal of a number of those cases confirms that courts rarely conclude that plaintiffs have made a sufficient showing of “bad faith” to justify deposing agency decision-makers.  However, courts have on occasion found sufficient bad faith to compel such testimony (though sometimes in combination with a concern about the incompleteness of the administrative record), see, e.g., Public Power Council v. Johnson, 674 F.2d 791 (9th Cir. 1982)(Kennedy, J.)(allegation by publicly-owned and cooperative utility companies that the Bonneville Power Authority’s negotiation of power contracts violated the relevant statute and were conducted in bad faith); Neighborhood Assistance Corporation v. U.S. Department of Housing And Urban Development, 2011 WL 3611461 (D.D.C. 2011)(allegation that the Department of Housing and Urban Development adopted an onerous regulation targeted at one particular entity in retaliation for that entity’s public criticism of the Obama administration); New York v. Salazar, 701 F.Supp.2d 224 (2010)(allegation of improprieties in decision to place 13,000 acres of land in two upstate New York counties in trust for the Oneida Indian Nation); Tummino v. Von Eschenbach, 427 F.Supp.2d 212 (E.D.N.Y. 2006) (alleging improprieties in senior FDA officials’ refusal to accept staff recommendations to permit emergency contraceptive Plan B be made available “over the counter”); Pension Benefit Guar. Corp. v. LTV Steel Corp., 119 F.R.D. 339 (1988)(“PBGC v. LTV”)(allegation that the Pension Guarantee Benefits Corporation had used its regulatory authority merely as a device to improve its position as a creditor in a particular bankruptcy case).  Though in two of the above-referenced cases, the courts ignored Overton Park’s rule that a strong showing of bad faith was required.  Public Power Council, 674 F.2d. at 795 (Kennedy, J.); Pension Benefit Guar. Corp. v. LTV Steel Corp., 119 F.R.D. at 344. 

There is a wider latitude for ordering a deposition (particularly a limited one) for discovery purposes than for the inclusion of the decision-maker’s testimony in the administrative record, see, PBGC v. LTV, 119 F.R.D. at 342 (“[t]here are compelling reasons to allow limited discovery to proceed at this stage and to reserve a determination of what should constitute the record before the court”); accord, Public Power Council v. Johnson, 674 F.2d at 795 (“[a]t this stage we do not decide whether the record ultimately may be expanded on these bases, but only that petitioners’ arguments in support of limited discovery are not insubstantial or frivolous”).  The cases in which courts consider whether to allow depositions of decision-makers in administrative record cases are sui generis and fact-specific.  Sokaogon Chippewa Community v. Babbitt, 929 F.Supp. 1165, 1178 (1996)(“[i]f any principle emerges from the cases interpreting the Overton Park bad faith exception, it is that a court must scrutinize each matter carefully and individually while holding plaintiffs to their significant evidentiary burden”).  On at least two occasions courts have been rebuked for holding extensive evidentiary hearings, hearings that exceeded their proper scope, namely eliciting an explanation of the agency official’s decision. Instead, the appellate courts noted, the extensive proceedings seemed more adapted to generating an evidentiary basis to review some aspects of the agency’s decision de novo.  Sierra Club v. U.S. Army Corps of Engineers, 772 F.2d 1043, 1052 (2d Cir. 1985); Asarco, Inc. v. U.S. Environmental Protection Agency, 616 F.2d 1153, 1160-61 (9th Cir.1980).

The decision to add the census questions is somewhat unique in a way that makes Secretary Ross’ motivations particularly central; he personally decided the issue contrary to the advice of the census professionals.  (Indeed, he appears to have both personally raised the question of adding the question to the census form and been the “driving force” moving the issue forward.)

Moreover, the New York plaintiffs have already established reasons to believe that (1) Secretary Ross’ stated reasons were pretextual, (2) that the reasons statement and the administrative record submitted by the Department of Commerce does not reflect Secretary Ross’ true motivation, and (3) that the record does not even reveal the origin of the idea to include the citizenship question (i.e., where the Secretary initially got the idea from).  Though the Secretary’s reasons statement asserted that he was motivated solely by a Department of Justice request, that assertion was misleading.  It is clear that the Secretary spent months soliciting the DOJ letter, ultimately having to urge the Attorney General himself to direct DOJ personnel to make the “request.”  A Commerce Department lawyer appears to have provided to DOJ the justification for DOJ’s “request.”

In addition, the Secretary exhibited a lack of concern about the undocumented alien response rate, requiring virtually indisputable proof that such a decline in response rate would occur.  Such an approach does not really comport with the limited need for citizen information in Voting Rights Act section 2 litigation, which the Sessions DOJ seems disinclined to pursue in any event.  But the Secretary’s cavalier attitude toward the undocumented alien response rate comports very nicely with the policy, partisan, and invidious motivations I have posited.  The rejection of the concerns raised by the Census Bureau’s Chief Scientist, reminiscent of Tummino v. Von Eschenbach, 427 F.Supp.2d at 231-33, is also suspicious.  Equally suspicious is the Secretary’s rejection of the census professionals’ view that they could provide the information DOJ purportedly needed without including a citizenship question.

And finally, even the supplemental statement purporting to correct the record, 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.), is woefully incomplete and not entirely candid.  Thus, plaintiff can make a strong case for deposing Secretary Ross or his “point person” on this matter.  Altogether, the above makes for a strong showing of “bad faith” on the part of the Secretary in both coming to his decision and offering an official explanation.

Privileges

Ordinarily, if a decision-maker must testify, his ability to raise the deliberative process privilege is limited.  New York v. Salazar, 701 F.Supp.2d at 238; Tummino v. Von Eschenbach, 427 F.Supp.2d at 234.  Here, not only will that be an issue, but the privilege of presidential communication may come into play.  See, United States v. Nixon, 418 U.S. 683, 705-08 (1974)(assertion of privilege in response to criminal subpoena); In re Sealed Case, 121 F.3d 729, 738-40 (D.C. Cir. 1997)(same).  It is possible that the genesis of the idea to include the citizenship question was in the White House.  Any questioning of Secretary Ross could encompass his discussion with close advisors to President Trump or even the President himself.  Given the President’s public hostility to people of color, see, New York v. Dep’t of Commerce, which Judge Furman has already noted in his decision rejecting the Department of Commerce’s motion to dismiss, State of New York v. U.S. Department of Commerce, 2018 WL 3581350 at *25, any presidential influence upon the decision might be quite relevant to a claim of invidious intent.

What if Secretary Ross’ Motivations Were Partisan Rather than Racially Invidious?

Secretary Ross’ motives may have been partisan — embracing citizen voting age population (“CVAP”) figures may have been appealing because it gives “red” states more seats in the House of Representatives and “blue” states fewer.  And more broadly such an approach would generally maximize the number of districts in which Republicans dominate, packing more people into Democratic-leaning districts than Republican-leaning ones.

Secretary Ross’ motivations could also reflect animus toward people and communities of color.  Leaving undocumented immigrants uncounted would reduce the representation of states that have the most sizable minority populations.  And it would also reduce the representation of minority communities of color at the state and local levels.  Secretary Ross’ action may pander to the concerns of the portion of President Trump’s base who fear that demographic changes augur White Americans loss of majority status.  See, Eugene Scott, Laura Ingraham Tries to Walk Back her ‘Demographic Changes’ Monologue — But Doesn’t Apologize, WASH. POST (August 10, 2018); 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).

In the context of apportionment, race may be taken into account along with numerous other factors typically considered in crafting “legislative” districts, Shaw v. Reno, 509 U.S. 630, 646 (1993) (“redistricting differs from other kinds of state decisionmaking in that the legislature always is aware of race when it draws district lines, just as it is aware of age, economic status, religious and political persuasion, and a variety of other demographic factors[;] [t]hat sort of race consciousness does not lead inevitably to impermissible race discrimination”); accord, Bush v. Vera, 517 U.S. 952, 958-59 (1996); Miller v. Johnson, 515 U.S. 900, 915-16 (1995).  But racial gerrymandering is unconstitutional.  Shaw v. Reno, 509 U.S. at 646.

Partisan motivations are also a permissible in drawing electoral districts, Easley v. Cromartie, 532 U.S. 234, 241-43 (2001).  But unlike racial gerrymandering, partisan gerrymandering is subject to only modest constraints, Davis v. Bandemer, 478 U.S. 109, 132-34, 142-43 (1986); Vieth v. Jubelirer, 541 U.S. 267, 305-06 (2004); League of United Latin American Citizens v. Perry, 548 U.S. 399, 420-23 (2006) (“LULAC” ); see generally, Gill v. Whitford, —U.S. —, 138 S.Ct. 1916, 1926-29 (2018).  Many members of the Court have considered allegations of majority-defeating partisan gerrymandering a non-justiciable political questions, Vieth v. Jubelirer, 541 U.S. at 305-06 (plurality opinion)(overturning Davis v. Bandemer); LULAC, 548 U.S. at 511-12 (Scalia, concurring in part and dissenting in part, for the Chief Justice, Justice Thomas, and Justice Alito).  With the addition of a Trump appointee to replace Justice Kennedy (and Justice Gorsuch’s replacement of Justice Scalia), that view may continue to prevail.  The Justices who consider such allegations justiciable, and recognize that partisan gerrymandering can be impermissible when it reaches a certain level, have been unable to agree on a judicially-manageable standard for judging partisan gerrymanders.  See Gill v. Whitford, —U.S. —, 138 S.Ct. 1916, 1926-29 (2018)(describing various Justices’ approaches to the question); Arizona State Legislature v. Arizona Independent Redistricting Commission, — U.S. —,  135 S.Ct. 2652, 2690 (2015)(Roberts, C.J., dissenting)( recognizing the difficulties that arise from trying to fashion judicial relief for partisan gerrymandering).

One might question whether parsing partisan from racially invidious motivations is possible; race and party often reflect “conjoined polarization.”  As two election law scholars have explained:

Racial sorting and party sorting trends have been closely intertwined. Civil rights policies gave socially conservative white Democrats reason to defect to the Republican Party.  Immigration policies also enabled the nonwhite and non-European population to grow and eventually enter a coalition with liberal whites.  At the same time, both parties became more ideologically consistent, with more within-party conformity in social and economic policy.  This undercut the ideological heterogeneity that in the immediate post World War II era had limited the polarization of activists, donors, and representatives in both parties.  The Democratic and Republican parties became more ideologically consistent and racially distinctive.

Bruce E. Cain & Emily Zhang, Blurred Lines: Conjoined Polarization and Voting Rights, 77 OHIO ST. L.J. 867, 876 (2016); see, Richard L. Hasen. Race or Party, Race as Party, or Party All the Time: Three Uneasy Approaches to Conjoined Polarization in Redistricting and Voting Cases, 59 WM. & MARY L. REV. 1837 (2018).

That said, a determination that the Secretary’s motivations were merely partisan, namely a desire to undercount heavily-Democratic areas, would raise interesting questions.  While partisan considerations are permitted in crafting legislative districts, there should arguably be less room for such partisan considerations in creating baseline population figures.  Even in the partisan gerrymandering cases the court has shown a discomfort with extreme gerrymandering based on partisan interests.  See, e.g., Arizona State Legislature, 135 S.Ct. at 2658 (observing that partisan gerrymanders are incompatible with democratic principles); Davis v. Bandemer, 478 U.S. 109, 132-33, 141-42 (1986); Vieth v. Jubelirer, 541 U.S. 267, 307-08, 311-12 (2004)(Kennedy, J., concurring); .  As Justice Kennedy observed in his separate concurrence in Vieth, “[a]llegations of unconstitutional bias in apportionment are most serious claims, for we have long believed that “the right to vote” is one of “those political processes ordinarily to be relied upon to protect minorities.”  Vieth v. Jubelirer, 541 U.S. at 311-12 (Kennedy, J., concurring). There may be difficulties in specifying some rules of non-partisan counting; the history of census controversies has been a history of politics.  However, inclusion of questions on the census that discourage recipients from returning the census form is certainly subject to more manageable standards of review.

Summary

The Secretary’s decision, taken on its own terms, is quite vulnerable to attack under the APA as arbitrary and capricious.  The decision will also be difficult to defend as an extension of the Administration’s policy of nullifying and refusing to recognize undocumented aliens’ presence in this country.  The Secretary may well need to be deposed to explore more fully regarding the “true” reason for his decisions, whether policy, partisan, or racial.  If his motivation is racial, the plaintiff should prevail on the Fifth Amendment equal protection claim.  Even if the motivation is partisan, and not racial, plaintiff have a substantial chance of prevailing on their Fifth Amendment equal protection claim, as well as their APA claim.

In any event, the New York litigation over Secretary Ross’ decision and the litigation in federal court in Maryland, Kravitz v. U.S. Department of Commerce, Dkt No. 18 Civ. 1014 (D. Md.), La Union Del Pubelo Entero v. Ross, Dkt No. 18 Civ. 1570 (D. Md.), and California, State of California v. Ross, Dkt No. 18 Civ. 1865 (N.D. Calf.), City of San Jose v. Ross, 18 Civ. 2279 (N.D. Calf.), should prove quite interesting.  The Brennan Center has pages on all these cases here.

Post-script.  On August 17, 2018 District Judge Richard Seeborg rejected the federal government’s motion to dismiss the census litigation in the California Court, State of California v. Ross, Dkt No. 18 Civ. 1865, slip op.  (N.D. Calf.).  His ruling was similar to that of Judge Furman in the Southern District of New York, described in the first post in this series, with one exception.  Judge Seeborg allowed plaintiffs to pursue their claim that Secretary Ross’ decision to add the citizenship question violated the Enumeration Clause of the Constitution.  Id., slip op. at 28-29.  Plaintiffs’ assertion that in the context of the current anti-immigrant climate “the Secretary’s decision to add a citizenship will undermine the ‘strong constitutional interest in accuracy’ of the census established by [Utah v. Evans, 536 U.S. 452, 478 (2002)] . . . and thus violate the Constitution’s actual enumeration command” was sufficient to state a cause of action.  Id.