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Kravitz v. United States Department of Commerce

United States District Court, D. Maryland, Southern Division

August 22, 2018

ROBYN KRAVITZ, et al., Plaintiffs,



         Every ten years, the Census Bureau takes on the herculean task of counting the entire population of the United States. The Census Bureau expends considerable resources on this task, presumably to ensure that the count is as accurate as possible because an accurate count is essential to ensure, among other things, equal representation-a hallmark of our Constitution. As the 2020 Census approaches, the Census Bureau continues to refine its plans and prepare for the next count. As a part of that refinement, earlier this year, the Census Bureau formally added a new question to the census questionnaire, one that asks respondents to indicate whether each household member is a citizen of the United States by birth or naturalization, or not a U.S. citizen. Nineteen individual residents of Texas, Arizona, Nevada, and Florida (collectively, “Plaintiffs”)[1] allege that this question will dramatically depress census response rates in their local communities and disproportionally affect the overall accuracy of the population count. Plaintiffs seek to enjoin the Census Bureau from including the citizenship question in the 2020 Census and assert claims pursuant to the Census Clause of the United States Constitution (Count I) and the Administrative Procedure Act (“APA”) (Count II). ECF No. 17.[2] Presently pending before the Court is Defendants' Motion to Dismiss, ECF No. 24, and Plaintiffs' Motion for Discovery, ECF No. 43. The Court held a Motions Hearing on July 18, 2018. See ECF No. 45. For the following reasons, Defendants' Motion to Dismiss is denied and Plaintiffs' Motion for Discovery is granted.

         I. BACKGROUND[3]

         A. Census Background

         The United States Constitution mandates that the Congress conduct an “actual Enumeration” of “the whole number of persons in each state” every ten years. U.S. Const., Art. I, § 2, cl. 3 and Am. XIV § 2 (hereinafter, “Census Clause” or “Enumeration Clause”). Through the Census Act, 13 U.S.C. § 141 et seq., Congress has delegated the duty of conducting the decennial census to the Secretary of Commerce, “in such form and content as he may determine.” Id. § 141(a). In addition to counting the population, “the Secretary is authorized to obtain such other information as necessary.” Id. The “actual Enumeration” resulting from the decennial census is used to apportion representatives in the U.S. House of Representatives, draw intra-state congressional and state legislative districts of equal proportion, and allocate more than $675 billion in federal funding for over 130 different federal programs. See ECF No. 17 ¶¶ 41- 43. Plaintiffs are either eligible to vote or are currently applying for U.S. citizenship and intend to vote in elections following the 2020 decennial census. Collectively, Plaintiffs utilize government services funded, in part, through federal expenditures for roads and highways, the Federal Foster Care Program (“Title IV-E”), Medicaid, and Title I of the Elementary and Secondary Education Act (“Act”). See, e.g., Id. ¶¶ 16, 17.

         While the primary purpose of the decennial census is to count the population for apportionment purposes, “the decennial census has grown considerably over the past 200 years” and is also used to collect demographic data on the population. See Dep't of Commerce v. U.S. House of Representatives, 525 U.S. 316, 341 (1999) (citations and internal quotations omitted). Since the 1820 enumeration, the decennial censuses have included questions related to foreign birth, naturalization, and citizenship in varying forms. See ECF No. 24-1 at 12 (citing U.S. Census Bureau, Measuring America: The Decennial Censuses From 1790 to 2000, at 6, (hereinafter, “Measuring America”)).[4] With the exception of the 1840 Census, all censuses from 1820 through 1950 asked all respondents for information relating to citizenship, birthplace, or both. See Measuring America at 9, 11, 13, 15. For example, the 1830 Census asked whether individuals were “foreigners not nationalized.” Id. at 7. The 1930 Census asked for the place of birth of all individuals and his or her parents, the year of immigration and naturalization for all foreign-born individuals, and whether he or she was able to speak English. Id. at 59. In 1940, the Census Bureau began the practice of sampling a portion of the population for more detailed information.[5]

         Starting in 1970, the Census Bureau asked respondents to complete and mail back the census questionnaire. Most households received a short form questionnaire asking a minimum number of questions (“short form”), while a smaller number received a long-form questionnaire that included additional questions (“long form”). See U.S. Census Bureau, Questionnaires,; see also ECF No. 17 ¶¶ 63, 75. In 1970, 20% of the population were asked to provide their birthplace, 15% were asked to provide their parents' birthplace, and 5% were asked whether the individual respondent, if foreign born, had been naturalized. Measuring America at 78. In the 1980-2000 Censuses, one in six households received the long form questionnaire and were asked whether they had been naturalized (1980) or whether they were citizens (1990, 2000). Id. at 86, 91-92, 97. Following the 2000 Census, the Census Bureau stopped using the long form questionnaire. Instead, starting in 2005, the Census Bureau began collecting monthly demographic data, including citizenship and national origin information, through the American Community Survey (“ACS”). The ACS is sent to approximately one in thirty-eight households each year. See U.S. Census Bureau, Archive of American Community Survey Questions, available at; see also ECF No. 17 ¶ 63.

         B. Preparation for the 2020 Census

         On March 28, 2017, the Census Bureau submitted a report to Congress (the “March 2017 Report”) indicating that the 2020 Census would ask respondents to answer questions on behalf of themselves and household members about their age, gender, race/ethnicity, and whether they owned or rented their residence. ECF No. 17 ¶¶ 72-73.[6] Plaintiffs allege that the March 2017 Report did not include citizenship-related questions because, according to the Census Bureau, doing so “would depress response rates, particularly among certain historically undercounted groups, and would compromise the accuracy and completeness of the census count.” ECF No. 17 ¶ 74; see also Id. ¶¶ 76-81.

         On March 26, 2018, Secretary Ross issued a memorandum setting forth his decision to include a citizenship question on the 2020 Census. Id. ¶ 88; ECF No. 1-2 (“Ross Memorandum”). Per the Ross Memorandum, the Secretary's decision was prompted by a December 12, 2017 request from the Department of Justice (“DOJ”) to include the question so that DOJ could utilize census block level citizenship voting age population (“CVAP”) data in order to better enforce Section 2 of the Voting Rights Act (“VRA”), which protects the voting rights of minority populations. ECF No. 1-2 at 1. According to the Ross Memorandum, the Census Bureau performed a comprehensive review of DOJ's request and found “that the need for accurate citizenship data and the limited burden that the reinstatement of the citizenship question would impose outweigh fears about a potentially lower response rate.” Id. at 6.

         Shortly thereafter, on March 29, 2018, the Census Bureau submitted its report to Congress in accordance with § 141(f)(2) (the “March 2018 Report”) and indicated that the 2020 Census would include the citizenship question. ECF No. 17 ¶ 102; ECF No. 1-3 at 12. On June 21, 2018, after Plaintiffs filed their Amended Complaint, the Secretary clarified statements made in the earlier Ross Memorandum and indicated that he began considering the citizenship question, “which other senior Administration officials had previously raised, ” “[s]oon after [his] appointment as Secretary of Commerce.” ECF No. 26-1 (“Ross Supplemental Memorandum”). The Secretary clarified that he and his staff “inquired whether the Department of Justice (DOJ) would support, and if so would request, inclusion of a citizenship question as consistent with and useful for enforcement of the Voting Rights Act.” Id.[7]

         C. Alleged Impact of the Citizenship Question

         Plaintiffs allege that the Secretary's justification for adding the citizenship question is a pretext for its true aim-“to press the 2020 Census into the service of [President Trump's] anti-immigration political agenda.” ECF No. 17 ¶ 82. Specifically, Plaintiffs allege that by January 31, 2017, the Trump Administration had prepared a draft Executive Order that, among other things, directed the Census Bureau to ask a citizenship question. Id. ¶ 83. Without any reference to the VRA, the Order justified the citizenship question as “fulfill[ing] several campaign promises by aligning immigration policies with the national interest” and addressing “the flow of illegal entries and visa overstays” and the “unlawful employment of aliens.” Id. Additionally, President Trump's re-election campaign acknowledged that “President Trump [had] officially mandated that the 2020 United States Census ask people living in America whether or not they are citizens.” ECF No. 17 ¶ 89; see also Id. ¶ 87.

         Plaintiffs further allege that the Ross Memorandum “contained no evaluation of the asserted legal or statistical foundation for the DOJ request and no independent assessment by the Commerce Department or Census Bureau of the asserted governmental benefit of adding a citizenship question to the 2020 Census questionnaire.” Id. ¶ 90. Plaintiffs contend that Secretary Ross' decision was deficient for a number of reasons: the Census Bureau previously concluded that the VRA did not require block-level CVAP data, and the ACS already provides DOJ with sufficient VRA-related data, id. ¶¶ 91, 92; the Ross Memorandum failed to identify any post-March 2017 circumstances necessitating the question, ¶ 93; the use of a citizenship question has not been well tested, ¶¶ 94, 95; and, by the Secretary's own explicit admission, the Census Bureau did not know, and was unable to determine, the impact such a question would have on nonresponse rates and the potential undercounting of immigrants, ¶ 98. Ultimately, Plaintiffs contend that Secretary Ross had no basis to find the citizenship question necessary to enforce the VRA or that the benefits of collecting citizenship data outweigh potential adverse effects on response rates. Id. ¶ 101 (quoting ECF No. 1-2 at 8).

         Instead, Plaintiffs allege that compelling evidence, including evidence from the Census Bureau itself, makes clear that “the inclusion of a citizenship question will result in a disproportionate undercount of persons belonging to or sharing a household with certain demographic groups, including immigrants, noncitizens, those with limited English proficiency, and individuals of Hispanic or Latino Origin” (collectively, “Undercount Groups”). ECF No. 17 ¶ 105.[8] The Undercount Groups are more likely to be suspicious about the purpose of the decennial census and the government's use of census data than other population groups, a suspicion allegedly exacerbated by the current political environment. Id. ¶¶ 106, 108. As a result, the citizenship question is expected to “reduce participation and depress response rates among the Undercount Groups.” Id. ¶ 106; see also id. ¶ 114 (alleging that since issuance of the Ross Memorandum, Defendant Jarmin has publicly acknowledged in Congressional testimony that the inclusion of the citizenship question may disproportionally affect the Undercount Groups).

         Plaintiffs further allege that these depressed response rates will result in a disproportionate undercount in their local communities-areas of the country with a higher percentage of individuals belonging to Undercount Groups. ECF No. 17 ¶¶ 115-124. The disproportionate undercount will, in turn, reduce the number of congressional seats expected to be apportioned to Arizona, Florida, Texas, and Nevada, id. ¶ 125, and affect the drawing of “equal population” intra-state legislative districts in Arizona, Florida, Texas, Nevada, and Maryland so as to over-populate Plaintiffs' districts and dilute their vote. Id. ¶ 126. Additionally, the disproportionate undercount will reduce the federal government's allocation of funding to Plaintiffs and their local communities. Id. ¶¶ 128-142.


         A. Motion to Dismiss Pursuant to Rule 12(b)(1)

         Defendants move to dismiss the Complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, asserting that Plaintiffs lack standing. A challenge to a plaintiff's standing is, in effect, a challenge to the Court's subject-matter jurisdiction. Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 475-76 (1982). Plaintiffs have the burden of proving that subject matter jurisdiction exists. See Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). When a defendant challenges subject matter jurisdiction pursuant to Rule 12(b)(1), “the district court is to regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Id. (quoting Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991)). The district court should grant the Rule 12(b)(1) motion to dismiss “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Id.

         B. Motion to Dismiss Pursuant to Rule 12(b)(6)

         Defendants also move to dismiss the Amended Complaint, in part, pursuant to Rule 12(b)(6), asserting that Count I fails to state a claim upon which relief can be granted. To state a claim that survives a Rule 12(b)(6) motion, a complaint, relying on only well-pled factual allegations, must state at least a “plausible claim for relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The “mere recital of elements of a cause of action, supported only by conclusory statements, is not sufficient to survive a motion made pursuant to Rule 12(b)(6).” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012). To determine whether a claim has crossed “the line from conceivable to plausible, ” the Court must employ a “context-specific inquiry, ” drawing on the court's “experience and common sense.” Iqbal, 556 U.S. at 679-80. When performing this inquiry, the Court accepts “all well-pled facts as true and construes these facts in the light most favorable to the plaintiff in weighing the legal sufficiency of the complaint.” Nemet Chevrolet, Ltd. v., Inc., 591 F.3d 250, 255 (4th Cir. 2009). The Court need not, however, accept unsupported legal allegations, Revene v. Charles Cnty. Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989), nor must it agree with legal conclusions couched as factual allegations, Iqbal, 556 U.S. at 678, or conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).


         A. Standing

         “One of the essential elements of a legal case or controversy is that the plaintiff have standing to sue.” Trump v. Hawaii, 138 S.Ct. 2392, 2416 (2018). At its “irreducible constitutional minimum, ” the standing doctrine requires a plaintiff, as the party invoking the Court's jurisdiction, to establish three elements: (1) a concrete and particularized injury-in-fact, either actual or imminent; (2) a causal connection between the injury and defendants' challenged conduct, such that the injury is “fairly trace[able] to the challenged action of the defendant”; and (3) a likelihood that the injury suffered will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); see also Spokeo, Inc. v. Robbins, 136 S.Ct. 1540, 1547 (2016).

         The plaintiff bears the burden of supporting each of the required elements of standing “in the same way as any other matter on which the plaintiff bears the burden of proof.” Defs. of Wildlife, 504 U.S. at 561. “At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, ” id., so long as they plausibly identify an injury. Beck v. McDonald, 848 F.3d 262, 270 (4th Cir. 2017); see also FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990) (“it is the burden of the ‘party who seeks the exercise of jurisdiction in his favor,' . . . ‘clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute'” (citation omitted)). “[P]laintiffs are required only to state a plausible claim that each of the standing elements is present.” Attias v. Carefirst, Inc., 865 F.3d 620, 625 (D.C. Cir. 2017) (emphasis in original). “[W]hat may perhaps be speculative at summary judgment can be plausible on a motion to dismiss, ” and courts should not “recast[] ‘plausibility' into ‘probability'” by demanding predictive certainty. Wikimedia Found. v. Nat'l Sec. Agency, 857 F.3d 193, 208-12 (4th Cir. 2017); see also District of Columbia v. Trump, 291 F.Supp.3d 725, 738 (D. Md. 2018) (alleging injury-in-fact at the pleading stage is not akin to climbing “Mount Everest”). However, the Court does not “apply the same presumption of truth to ‘conclusory statements' and ‘legal conclusions.'” Beck, 848 F.3d at 270.

         Defendants argue that Plaintiffs have not alleged a concrete injury-in-fact and that, even if they have sufficiently alleged concrete injury-in-fact, it is not fairly traceable to the Defendants. The Court will address both arguments in turn.

         1. Concrete Injury-in-fact

         The injury-in-fact requirement ensures “that the plaintiff has a ‘personal stake in the outcome of the controversy.'” Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334, 2341 (2014) (quoting Clapper v. Amnesty Intern. USA, 133 S.Ct. 1138, 1150 n.5 (2013)). “To establish injury in fact, a plaintiff must show that he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.” Wikimedia Foundation v. National Security Agency, 857 F.3d 193, 207 (4th Cir. 2017) (internal citations omitted). “For an injury to be particularized, it must affect the plaintiff in a personal and individual way.” Id. “The purpose of the imminence requirement ‘is to ensure that the alleged injury is not too speculative for Article III purposes.'” Id. (quoting Clapper, 133 S.Ct. at 1147). “An allegation of future injury may suffice if the threatened injury is ‘certainly impending,' or there is a ‘substantial risk that the harm will occur.'” Susan B. Anthony List, 134 S.Ct. at 2341 (quoting Clapper, 133 S.Ct. at 1150, n.5).

         Plaintiffs allege that they face a concrete injury in that their states and communities will be disproportionately undercounted as a result of the addition of the citizenship question to the 2020 Census. Plaintiffs rely on “recent ACS data” as indicating that the states and areas in which Plaintiffs reside contain “a higher percentage of individuals belonging to Undercount Groups than the United States as a whole.” E.g., ECF No. 17 ¶ 121. As a result of living in areas with a higher percentage of individuals in the Undercount Groups, Plaintiffs claim that they will likely suffer a number of injuries. Specifically, they argue that the undercount will result in a loss of representation in the House of Representatives, as well as a loss of federal funding for their communities' schools and roads. See generally ECF No. 17 ¶ 10 (“Voters will be denied their constitutionally guaranteed rights to equitable political representation based on actual population, and billions of dollars in federal funding-for education, infrastructure, health care, and countless other pressing needs-will be unlawfully misallocated.”).

         Regarding Plaintiffs' vote-dilution injury, the Supreme Court has previously held that plaintiffs possess standing in census cases where they face an “expected loss of a Representative to the United States Congress” and that this “undoubtedly satisfies the injury-in-fact requirement of Article III standing.” U.S. House of Representatives, 525 U.S. at 331-32. The loss of a Representative means that Plaintiffs' “votes will be diluted, ” and faced with the loss of a Representative, the harm of vote dilution “is ‘concrete' and ‘actual or imminent, not ‘conjectural' or ‘hypothetical.'” Id. (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)) (quotation missing in original). Thus, assuming all facts in the Amended Complaint as true, Plaintiffs have plausibly pleaded that the Plaintiffs who reside in Arizona, Florida, Texas, and Nevada will likely lose a congressional seat as a result of the addition of the citizenship question which, pursuant to U.S. House of Representatives, satisfies the injury-in-fact requirement.

         As to Plaintiffs' remaining injury-in-fact arguments regarding the dilution of Plaintiffs' votes within states and their loss of federal funding, a number of courts have found such claims sufficient to establish injury-in-fact. See, e.g., Carey v. Kutznick, 637 F.2d 834, 838 (2d Cir. 1980); Glavin v. Clinton, 19 F.Supp.2d 543, 550 (E.D. Va. 1998); City of Philadelphia v. Klutznick, 503 F.Supp. 663, 672 (E.D. Pa. 1980).

         In Carey, the Second Circuit reasoned that individual plaintiffs had “alleged concrete harm in the form of dilution of their votes and decreased federal funds flowing to their city and state, thus establishing their standing.” 637 F.2d at 838. Similarly, in City of Philadelphia, the District Court reasoned that plaintiffs had met the standing requirement where they alleged that ...

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