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La Union Del Pueblo Entero v. Ross

United States District Court, D. Maryland, Southern Division

November 9, 2018

LA UNIÓN DEL PUEBLO ENTERO, et al., Plaintiffs,
v.
WILBUR ROSS, et al., Defendants.

          MEMORANDUM OPINION

          GEORGE J. HAZEL UNITED STATES DISTRICT JUDGE.

         This 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.[1] 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.[2] 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.

         I. BACKGROUND[3]

         This 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.

         A. Factual background

         The 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. § 141(f)(1)-(2).

         In the 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.

         Secretary 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. ¶ 240.

         In July 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. ¶ 176.

         Eventually, 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.

         On 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.

         Throughout 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. ¶ 253.

         According 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.[4] 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.

         B. Procedural background

         Plaintiffs' 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. 75.

         II. STANDARD OF REVIEW

         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 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.” 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 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).

         III. DISCUSSION

         A. Justiciability

         Defendants 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 ...


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