United States District Court, D. Maryland, Southern Division
J. HAZEL UNITED STATES DISTRICT JUDGE.
case arises out of the Census Bureau's decision to add a
citizenship question to the 2020 Census. Plaintiffs, seven
individuals and twenty-six immigrant advocacy organizations,
claim that asking about respondents' citizenship status
will dramatically depress response rates in Plaintiffs'
communities, compromising the survey's accuracy,
disproportionately diluting political power, and leading to a
malapportionment of federal funding. Based on these allegations,
Plaintiffs assert claims pursuant to the Census Clause of the
United States Constitution (Counts I and IV), the Equal
Protection Clause of the Fifth Amendment of the United States
Constitution (Count II), 42 U.S.C. § 1985 (Count III),
and the Administrative Procedures Act (APA) (Count V); and
seek to enjoin the Census Bureau from including the
citizenship question. Defendants' Motion to Dismiss, ECF No.
54, and Plaintiffs' Motion for Discovery, ECF No. 70 are
presently pending before this Court. No. hearing is
necessary. See Loc. R. 105.6. For the following
reasons, Defendants' Motion to Dismiss and
Plaintiffs' Motion for Discovery are both denied.
court has previously described in detail the decennial
census's purpose, preparation for the 2020 census, and
the citizenship question's alleged impact on
similarly-situated individual plaintiffs. See Kravitz v.
United States Dep't of Commerce, No. GJH-18-1041,
2018 WL 4005229, at *2-4 (D. Md. Aug. 22, 2018). The court
incorporates that background here, but also briefly reviews
the factual and legal background pertinent to the new legal
issues before it.
United States Constitution requires that the Congress conduct
an “actual Enumeration” of the population every
ten years “in such a manner as” the House of
Representatives “shall by law direct.” U.S.
Const., Art. I, § 2, cl. 3 (“Enumeration
Clause”). “Representatives shall be apportioned
among the several states according to their respective
numbers, counting the whole number of persons in each
state.” U.S. Const. Am. XIV § 2
(“Apportionment Clause”). The Court refers to the
Enumeration Clause and the Apportionment Clause together as
the “Census Clause.” The population count is used
to apportion representation as well as to allocate more than
$675 billion in federal funding for over 130 different
federal programs and to collect demographic data. ECF No. 42
¶ 138-39. Congress delegates the duty of conducting the
decennial census to the Secretary of Commerce. 13 U.S.C.
§ 141 et seq. Within two and three years of the
census, the Secretary must submit “a report containing
the Secretary's determination of the subjects proposed to
be included, and the types of information to be compiled, in
such census” to Congress. 13 U.S.C. §
lead up to the 2020 Census on March 28, 2017, the Secretary
submitted such a report to Congress; this initial report did
not include citizenship as a proposed subject. ECF No. 42
¶ 173. Plaintiffs allege that citizenship was not a
proposed subject because although the Trump administration
began to consider adding a citizenship question in as early
as January 2017, id. ¶ 241, the Census Bureau
recognized that reinstating a citizenship question would
“inevitably jeopardize the overall accuracy of the
population count” given that “suspicious and
fearful” respondents would refuse to cooperate,
concerned that the information would be used against them.
Id. ¶¶ 213.
Ross began considering adding the citizenship question,
“which other senior Administration officials had
previously raised, ” “[s]oon after [his]
appointment as Secretary of Commerce.” ECF No. 42
¶ 190 & n. 55 (citing Supplemental Memorandum by
Secretary of Commerce Wilbur Ross, New York et al v.
Dep't of Commerce et al, No. 1:18-cv-0291-JMF (S.D.N.Y.
June 6, 2018), ECF No. 189-1). Around the time when Defendant
Ross was appointed Secretary of Commerce, Kansas Secretary of
State Kris Kobach spoke with President Trump about adding a
citizenship question because, in Kobach's view, states
like California have had “congressional seats inflated
by counting illegal aliens.” ECF No. 42 ¶ 241.
Soon after Mr. Kobach and the President spoke about the
Census, in January 2017, a draft Executive Order, entitled
“Executive Order on Protecting American Jobs and
Workers by Strengthening the Integrity of Foreign Worker Visa
Programs” leaked through news reports. Id.
¶ 238. The draft order instructed the Director of the
Census Bureau to include a citizenship question on the 2020
Census to “fulfill several campaign promises” and
address “the flow of illegal entries and visa
overstays.” Id. ¶ 239. The draft order
did not mention enforcing the Voting Rights Act-the rationale
that the administration would later use to support
reinstating the citizenship question. Id. ¶
2017, Mr. Kobach emailed Defendant Ross to follow up about
adding a citizenship question to the 2020 Census.
Id. ¶ 174. Prior to the email exchange, Kobach
and Ross had at least one phone conversation about adding a
citizenship question. Id. The phone call took place
“at the direction of” Trump Administration
advisor Steve Bannon. Id. ¶ 175. Mr.
Kobach's interest in the 2020 Census stemmed from his
belief that the lack of a citizenship question “leads
to the problem that aliens who do not actually
‘reside' in the United States are still counted for
congressional apportionment purposes.” Id.
¶ 174. Plaintiffs allege that Secretary Ross and Mr.
Kobach spoke on the phone again about the citizenship
question at another point in July 2017. Id. ¶
despite DOJ's initial reluctance, at Secretary Ross's
request, the acting head of the Civil Rights Division of the
Department of Justice, John Gore, provided the Voting Rights
Act justification around November 2017-after Mr. Kobach's
communications with the administration. ECF No. 42 ¶
178, 180. Specifically, Mr. Gore drafted a letter claiming
that the addition of the citizenship question was necessary
to enforce Section 2 of the Voting Rights Act. Id.
On November 3, 2017, Mr. Gore sent the draft letter to a
Department of Justice Management Division official, Arthur
Gary, and asked that the official pass it along to the Census
Bureau under Mr. Gary's name. Id. ¶ 178.
Mr. Gary did so. Id. ¶ 180. Notably, the
Department of Justice has filed only four Section 2 Voting
Rights Act enforcement actions since 2010, id.
¶ 183, and in testimony before Congress, Mr. Gore could
not identify a single case brought under the Voting Rights
Act that failed due to a lack of citizenship data.
Id. ¶ 184.
March 26, 2018, Secretary Ross directed the Census Bureau to
include a citizenship question. ECF No. 42-1 ¶ 186.
Plaintiffs allege that Defendants added the 2020 citizenship
question to depress the count of immigrant communities of
color, thereby decreasing this population's impact on and
benefit from apportioned political power. ECF No. 42
¶¶ 375-76. Plaintiffs contend that Secretary Ross
had no basis to find the citizenship question necessary to
enforce the Voting Rights Act or that the benefits of
collecting citizenship data outweigh potential adverse
effects on response rates. Id. ¶ 385. Relying
on the above sequence of events, Plaintiffs allege that the
Secretary engineered the Voting-Rights-Act rationale with the
assistance of the Department of Justice to cloak
Defendants' true purpose. Id. ¶ 189 n. 53.
the period when the administration was considering the
citizenship question addition, President Trump made the
following statements, among others, relevant to his views of
the communities that Plaintiffs represent: he complained on
January 11, 2018, about “these people from shithole
countries” coming to the United States and added that
the United States should accept more immigrants from
countries like Norway, ECF No. 42 ¶ 248; (2) he
commented on May 16, 2018, that “[w]e have people
coming into the country, or trying to come in. . . . You
wouldn't believe how bad these people are. These
aren't people, these are animals . . ., ”
id. ¶ 250; and (3) he asserted that Democrats
“want illegal immigrants, no matter how bad they may
be, to pour into and infest our Country, ” id.
to Plaintiffs, the citizenship question will harm the
individual Plaintiffs and the organizational Plaintiffs'
clients, members, and constituents because Latinos, African
Americans, Asian Americans, Native Americans, and Non-U.S.
Citizens (collectively, “Undercount Groups”) will
be disproportionately undercounted in the 2020 Census. ECF
No. 42 ¶ 260. The Undercount Groups are already
recognized as “hard-to-count populations, ”
id. ¶ 261, and they 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.¶¶ 213, 215,
268, 271. If, as expected, the citizenship question depresses
response rates among Undercount Groups relative to the rest
of the country, there is a substantial risk that their
communities will be deprived of representation in
congressional, state, and local governing bodies.
E.g., id. ¶¶ 276, 288, 294, 297,
301. Further, Plaintiffs allege that they will suffer harm
because a disproportionate undercount will lead to a loss of
federal funding in their states and localities.
E.g., id. ¶¶ 5, 10, 15, 20, 33,
38, 43, 48, 53, 57, 61, 66, 71, 76.
First Amended Complaint asserts claims pursuant to the Census
Clause of the United States Constitution (Counts I and IV),
the Equal Protection Clause of the Fifth Amendment of the
United States Constitution (Count II), 42 U.S.C. § 1985
(Count III), and the Administrative Procedures Act (APA)
(Count V) and seeks to enjoin Defendants from adding the
citizenship question to the 2020 Census. ECF No. 42. A month
before this action commenced, similarly-situated individual
plaintiffs filed a different suit in this Court against the
Department of Commerce, the Census Bureau, and other
defendants to enjoin use of a citizenship question on the
2020 Census. Kravitz, No. GJH-18-1041, ECF No. 1.
The Kravitz plaintiffs brought Census Clause and APA
claims but did not assert Equal Protection Clause or 42
U.S.C. § 1985 Conspiracy claims. Id. The
Defendants in that case filed a Motion to Dismiss, ECF No.
24, and the Court held a Motions Hearing on July 18, 2018,
ECF No. 45. In their papers and at the hearing, the
Kravitz defendants argued that the plaintiffs lacked
standing because their alleged injuries were 1) too
attenuated and speculative and 2) not fairly traceable to the
challenged action. Further, they argued that the political
question doctrine barred the plaintiffs' suit and that
the Secretary's decision was not reviewable under the
APA. Finally, the defendants argued that the plaintiffs had
failed to state a claim under the Census Clause. The Court
issued a memorandum opinion denying the Kravitz
motion to dismiss on August 22, 2018. See Kravitz v.
United States Dep't of Commerce, No. GJH-18-1041,
2018 WL 4005229 (D. Md. Aug. 22, 2018). On August 24, 2018,
Defendants here filed their Motion to Dismiss. ECF No. 54.
Plaintiffs filed an opposition, ECF No. 62, and Defendants
replied, ECF No. 68. Plaintiffs also filed a Motion for
Discovery, ECF No. 70, to which Defendants responded, ECF No.
STANDARD OF REVIEW
Motion to Dismiss Pursuant to Rule 12(b)(1)
move to dismiss the Complaint pursuant to Rule 12(b)(1) of
the Federal Rules of Civil Procedure, asserting that
Plaintiffs lack of standing. A challenge to 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.”
Motion to Dismiss Pursuant to Rule 12(b)(6)
also move to dismiss the Amended Complaint, in part, pursuant
to Rule 12(b)(6), asserting that Plaintiffs' Census
Clause claims, Equal Protection Clause claim and 42 U.S.C.
§ 1985 Conspiracy claim fail to state claims upon which
relief can be granted and that Plaintiffs' Administrative
Procedure Act claim is not justiciable. 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.
Consumeraffairs.com, 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).
argue that this case is not justiciable because 1) Plaintiffs
lack standing; 2) the political question doctrine bars the
Census Clause claim; and 3) courts cannot review the
Secretary's decision under the APA. As Defendants have
acknowledged, ECF No. 54-1 at 21- 22, this Court recently
decided that the political question doctrine does not bar
courts from considering whether or not the expansive
authority granted by Census Clause has been violated.
Kravitz v. United States Dep't of Commerce, No.
GJH-18-1041, 2018 WL 4005229, at *9-12 (D. Md. Aug. 22,
2018). The Court also held that APA claims challenging agency
action under the Census Act are reviewable. Id. at
*15-16. These holdings apply with equal force here, and
because Defendants did not introduce any new ...