DocketNumber: Case No. 18-cv-01865-RS;; Case No. 18-cv-2279-RS
Citation Numbers: 362 F. Supp. 3d 727
Judges: Introduction, Seeborg
Filed Date: 8/17/2018
Status: Precedential
Modified Date: 7/25/2022
This action arises out of a decision by the U.S. Census Bureau, a division of the U.S. Department of Commerce, to include a question regarding citizenship status on the 2020 decennial census questionnaire. The census surveys the number of persons in each household and in so doing, collects certain demographic information about those persons. While questions relating to citizenship have historically been part of the census process, not since 1950 has the decennial census asked whether each respondent is a citizen of the United States. Plaintiffs in these two related cases contend the decision to deviate from modern practice violates both the Constitution and the Administrative Procedure Act ("APA"). Plaintiffs in 18-cv-1865 are the State of California, by and through Attorney General Xavier Becerra, County of Los Angeles, City of Los Angeles, City of Fremont, City of Long Beach, City of Oakland, City of Stockton, and Los Angeles Unified School District.
Defendants move to dismiss all claims asserted against them. For the reasons set forth below, the motions to dismiss are denied in their entirety. First, plaintiffs have standing to challenge the decision by Secretary Ross to add a citizenship question to the 2020 Census. Second, that decision is not insulated from judicial review as defendants insist. Third, assuming, as is required at the pleading stage, that all facts asserted in the operative complaints are true, plaintiffs have stated claims for relief under both the Enumeration Clause of the Constitution and the APA.
*732II. BACKGROUND
The U.S. Constitution provides for an "actual Enumeration" of the population once every decade to count "the whole number of persons" in each state. U.S. Const. Art. I, § 2, cl. 3, and Amend. XIV, § 2. All residents of a state are to be counted, regardless of citizenship status. Fed'n for Am. Immigration Reform (FAIR) v. Klutznick ,
Under the Census Act,
Several federal laws govern the specific manner in which the census is to be developed and conducted. For example, the Paperwork Reduction Act of 1995 ("PRA") directs the Office of Management and Budget ("OMB") to issue "[g]overnment-wide policies, principles, standards, and guidelines" governing "statistical collection procedures and methods" which the Bureau is required to follow. See
The development process of each decennial census takes several years, a period *733during which the Bureau conducts tests regarding the content, specific language, order, and layout of the census questionnaire to improve the accuracy of the enumeration. San Jose Compl. ¶ 39. None of the tests conducted in preparation for the 2020 Census included a citizenship question or gathered data on the impact of a citizenship question.
On December 12, 2017, DOJ submitted a letter to the Census Bureau "formally request[ing] that the Census Bureau reinstate on the 2020 Census questionnaire a question regarding citizenship." Letter from Arthur Gary, General Counsel, DOJ, to Ron Jarmin (Dec. 12, 2017) ("DOJ Letter"); see Administrative Record ("A.R.") at 663. DOJ stated the data was "critical" to the agency's ability to enforce the requirements of Section 2 of the Voting Rights Act ("VRA"), now codified at
On March 26, 2018, Secretary Ross issued a memorandum announcing the inclusion of a citizenship question on the 2020 Census questionnaire. Memorandum to Karen Dunn Kelley, Under Secretary for Economic Affairs, from the Sec'y of Commerce on Reinstatement of a Citizenship Question on the 2020 Decennial Census Questionnaire at 1 (Mar. 26, 2018), FAC ¶ 4; A.R. at 1313. The Secretary's stated justification was that the information was needed to provide DOJ with census-block-level data to assist in enforcing the VRA. A.R. at 1313. Based on a purported review of the Bureau's history of collecting citizenship information on the decennial census, the Secretary concluded that "the citizenship question has been well tested."
At the Secretary's request, the Census Bureau presented three alternatives for providing the data requested by DOJ: Option A called for continuing the status quo and providing DOJ with ACS citizenship data at the census-block-group level instead of the block level requested by DOJ; Option B provided for the placement of the ACS citizenship question on the decennial census; and Option C involved obtaining the requested information from existing federal administrative-record data. A.R. 1314-16. In his decision memo, the Secretary elected not to pursue Option A, as it would not provide data at the level requested by DOJ, even using sophisticated modeling methods.
In arriving at his decision, Secretary Ross had before him the views of numerous stakeholders, many of whom expressed concern that addition of a citizenship question would negatively impact response rates and result in an undercount of the population. A.R. at 1313-14. In particular, the Chief Scientist and Associate Director *734of Research and Methodology at the Bureau, Dr. John M. Abowd, conducted analysis showing that addition of a citizenship question would have a negative effect on the accuracy and quality of the 2020 Census and would negatively impact response rates from non-citizen households. A.R. at 1277, 1279-82. The Secretary acknowledged that a "significantly lower response rate by non-citizens could reduce the accuracy of the decennial census and increase costs for non-response follow up operations," but concluded that "neither the Census Bureau nor the concerned stakeholders could document that the response rate would in fact decline materially" as a consequence of his reinstating a citizenship question. A.R. at 1315. He noted that "while there is widespread belief among many parties that adding a citizenship question could reduce response rates, the Census Bureau's analysis did not provide definitive, empirical support for that belief."
Secretary Ross further offered the unadorned assumption that reduced census participation would be primarily limited to those individuals who may decline to participate regardless of whether the census includes a citizenship question. A.R. at 1317. Finally, the Secretary explained that the Census Bureau intends to take steps to conduct respondent and stakeholder-group outreach in an effort to mitigate the impact of these issues on the 2020 Census.
In response to the Secretary's March 2018 announcement, plaintiffs in these cases filed suit to enjoin the implementation of a citizenship question on the 2020 Census questionnaire. Plaintiffs assert that the inclusion of a citizenship question will result in an undercount of the U.S. population in the State of California and its counties and cities with sizeable minority and non-citizen communities. FAC ¶ 40. As a result of the undercount, California will lose seats in the House of Representatives for the first time in its history and will suffer the loss of federal funding allocated on the basis of census-derived statistics.
III. LEGAL STANDARD
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the court's subject matter jurisdiction over the asserted claims. It is the plaintiff's burden to prove jurisdiction at the time the action is commenced. Tosco Corp. v. Communities for Better Environment ,
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). While "detailed factual allegations are not required," a complaint must have sufficient factual allegations to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal ,
A motion to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims alleged in the complaint. See Parks Sch. of Bus., Inc. v. Symington ,
IV. DISCUSSION
Defendants make four arguments in support of their motion to dismiss, two that are generally applicable to all claims advanced by the plaintiffs, and two that are specific to certain of those claims. First, defendants argue plaintiffs lack standing to challenge the Secretary's decision to add a citizenship question to the decennial census. Plaintiffs' claimed injuries are loss of representation in Congress and in the Electoral College, and decreased federal funding due to reduced response rates of their residents. Defendants take the position these injuries are too speculative to confer Article III standing, and are not fairly traceable to the Secretary's decision.
Second, defendants contend plaintiffs' challenge is unreviewable under the political question doctrine. According to defendants, the Constitution textually commits the "[m]anner" of conducting the census to Congress, and contains no judicially discoverable or manageable standards for determining which demographic questions may be included on the census form. Resolution of this case would, according to defendants, require a court order dictating the form and content of the decennial census, a policy determination defendants believe is ill-suited to judicial resolution and is expressly committed to the political branches.
With respect to plaintiffs' APA claim specifically, defendants contend the Secretary's actions are not subject to judicial review because the decision at issue is committed to agency discretion by law. Congress has authorized the Secretary to conduct the decennial census "in such form and content as he may determine,"
*736
Finally, defendants assert that plaintiffs' Enumeration Clause claim fails because the Secretary's decision is consistent with longstanding historical census practice of asking about citizenship and other demographic information. Success on plaintiff's theory, defendants argue, would call into question the constitutionality of asking any type of demographic question that lacks a direct relationship to the counting of the population and may cause some individuals not to respond.
A. Standing
To satisfy Article III's standing requirements, "a plaintiff must show (1) it has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. ,
1. Injury-in-Fact
In order to demonstrate an "injury in fact," a plaintiff must allege it "has sustained or is immediately in danger of sustaining a direct injury" as a result of the challenged action. Spokeo, Inc. v. Robins , --- U.S. ----,
Defendants argue plaintiffs' claims of injury are premised on a speculative assertion that the addition of the citizenship question will ultimately cause a net decrease in the response rates, and a corresponding undercount of the population. As defendants see it, the conjectural nature of plaintiffs' theory is evidenced by the lack of "definitive, empirical" evidence regarding the effect of adding a citizenship question to the decennial census. See A.R. at 1316; see also id. at 1315-18. Secretary Ross also noted that households have historically failed to respond to census surveys for a variety of reasons and found no evidence that there were any individuals who would otherwise participate in the census but for the inclusion of a citizenship question. A.R. at 1317.
At the pleading stage, plaintiffs are not required to prove facts supporting each element of the standing inquiry. Here, plaintiffs plausibly allege that the introduction of a citizenship question to the census will depress response rates, particularly *737among immigrants and relatives of immigrants who may feel trepidation identifying themselves or others as non-citizens. Several factual allegations support this claim. As the FAC notes, since at least 1980, the Census Bureau has recognized that "any effort to ascertain citizenship will inevitably jeopardize the overall accuracy of the population count." FAC ¶ 37 (citing Fed. For Am. Immigration Reform v. Klutznick ,
Most recently, defendant Jarmin acknowledged in a congressional hearing that the inclusion of a citizenship question would cause more than a "minimal" decline in 2020 Census participation, and that the decline "would be largely felt in various sub-groups, in immigrant populations [and] Hispanic populations." See Jarmin Testimony starting at 1:39, response at 1:44:10; 1:50:35, response at 1:50:48. He also reported that the "best approach" recommended by the Census Bureau staff to obtain the information sought by DOJ "would be to use administrative records rather than adding a citizenship question."
Defendants' other arguments also go to issues of proof. They contend plaintiffs cannot establish the probability of an undercount occurring due to the "extensive procedures" deployed by the Census Bureau to address non-responses and to obtain accurate data for those households that decline to respond. Motion to dismiss ("Mot.")
Defendants next target the alleged connection between the projected undercount of the population and the risk plaintiffs will lose representation or funding as a consequence. Plaintiffs allege that an increased *738undercount will impact the number of representatives California has in the House of Representatives and the Electoral College and will decrease their share of federal funds under a variety of federal programs. FAC ¶¶ 40-47. Because apportionment is a complex process that involves ranking states based on their population to determine priority for seats, see 2 U.S.C. § 2a(a) ; https://wwww.census.gov/population/apportionment/about/computing.html, defendants insist that the impact on California's representation is merely hypothetical. While it may be, as defendants assert, that undercounts in other states will offset the effect on California in the final apportionment calculation, that is a determination on the merits. Defendants cannot defeat plaintiffs' as yet to be proven assertions about California's projected loss of congressional representation with equally unproven assertions regarding a lack of impact. The cases defendants offer to the contrary were decided on motions for summary judgment, where the parties' offers of proof were given due consideration.
With respect to funding related concerns, defendants acknowledge that the court in National Law Center on Homelessness and Poverty v. Kantor found, for the purposes of ruling on summary judgment, that allegations of loss of funding are sufficient to survive motions to dismiss. See
Defendants' attempts to distinguish the numerous cases finding standing where plaintiffs have alleged loss of funding are unpersuasive. First, the distinction between post-census challenges to calculation methodologies and pre-census challenges to the inclusion of a census question is of no consequence with respect to the nature of the injury alleged. All three of the above referenced census challenges were, as here, filed before the relevant decennial census was completed and before any alleged loss of funding could have taken place.
Finally, defendants argue that even if plaintiffs can show Article III injury, their allegations are insufficient to bring them within the zone of interests protected by the Constitution's Enumeration Clause, which "has no relation to, and was intended to, ensure that federal grant monies flow equally to all individuals." Mot. at 17. On the contrary, plaintiffs have alleged loss of funding and inadequate representation flowing from the Secretary's alleged failure to conduct an "actual Enumeration" as required by the Constitution. These allegations easily survive the zone-of-interests test.
2. Causation
In the event plaintiffs state an injury that is sufficiently concrete, defendants contend they cannot show the alleged injury is "fairly traceable" to the actions of defendants. Defs. of Wildlife ,
Specifically, defendants argue plaintiffs' allegations of harm rely upon intervening acts of third parties-individuals who violate their clear legal duty to participate in the decennial census. See
Once again, defendants articulate a standard far higher than what is required under Article III. Courts recognize that "[c]ausation may be found even if there are multiple links in the chain connecting the defendant's unlawful conduct to the plaintiff's injury, and there's no requirement that the defendant's conduct comprise the last link in the chain." Mendia v. Garcia ,
Plaintiffs meet that burden here by alleging the inclusion of a citizenship question *740will discourage their constituents and members of their communities from participating in the census, due to anxieties about the federal government's perceived negative treatment of minority and immigrant populations. San Jose Compl. ¶¶ 6, 10, 71-73, 80-83. They also point to evidence from the Bureau itself attesting to the projected negative impact of asking a citizenship question on census response rates. That non-respondents would violate their legal duty to participate in the census and may be influenced by other factors in refusing to participate does not diminish the strength of plaintiffs' allegation that the citizenship question will be a "substantial" factor affecting non-response rates. Neither is causation defeated by defendants' assertions that refusing to respond to the census is "irrational." See Block v. Meese ,
3. BAJI's Organizational Standing
An organization may show an "injury in fact" sufficient to confer direct standing by alleging: "(1) frustration of its organizational mission; and (2) diversion of its resources" to combat the challenged actions by defendant. See Smith v. Pac. Properties & Dev. Corp. ,
Here, BAJI has alleged an injury sufficient to confer organizational standing. San Jose Compl. ¶ 23. It describes its goal as fostering racial, economic, and social equality for Black immigrants and other historically underrepresented communities. Because the inclusion of a citizenship question on the 2020 Census questionnaire, they allege, will disproportionately depress the response rates of immigrant communities, BAJI contends these communities stand to lose political representation and access to federal funding. In response, BAJI has diverted the organization's limited resources to address and counteract the anticipated effects of the Secretary's decision to reinstate the census question. These efforts include providing "dialogues, presentations, workshops, publications, technical assistance, and trainings to build alliances between African American and immigrant communities."
B. Political Question
The political question doctrine is "primarily a function of the separation of powers." Baker v. Carr ,
[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political question already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Baker ,
1. Textually Committed to Congress
The Constitution provides that Representatives "shall be apportioned among the several States ... according to their respective numbers," which requires "counting the whole number of persons in each State." U.S. Const. Amend. XIV, § 2. To calculate the "number of persons in each State,"
Because the phrase "in such a Manner" modifies the phrase "[t]he actual Enumeration shall be made," defendants argue the text of the Constitution makes clear that Congress has full and exclusive control over the manner in which the decennial census is conducted. The census questionnaire, they reason, is synonymous with the "form" of the census, and it is the "method" by which an "actual Enumeration" is conducted. In defendants' telling, the decision to include a citizenship question concerns only the "manner" in which the Secretary performs the information-gathering function of the census. It does not, in their view, implicate questions of "whom to count, how to count them, or where to count them." Mot. at 18. Thus, defendants read plaintiffs' challenge as directed at the "way of performing or executing" the census, a determination Congress has reserved to itself.
These arguments fail for at least four reasons. First, while there is no question the language of the Constitution accords great deference to Congress, and by delegation to the Secretary, with respect to the methodology by which the decennial census is conducted, defendants offer no cases supporting a sharp dividing line between *742reviewable actions implicating the "Enumeration" prong and unreviewable actions implicating only the "Manner" prong. Courts have routinely held that the Enumeration Clause does not textually commit exclusive, non-reviewable control over the census to Congress. See Young v. Klutznick ,
Second, the distinction defendants attempt to draw-between a "method" of conducting the census and considerations of "whom to count, how to count them, or where to count them"-appears to be one of semantics rather than substance. The latter considerations, which defendants concede are subject to judicial review, could reasonably be interpreted as describing different "ways" of "performing or executing" the census. In other words, both statistical adjustment to the census count and creation of the census questionnaire concern the methodology of conducting the "actual Enumeration," albeit at different points in the process.
Third, those cases that ultimately denied challenges to the decennial census did so by evaluating challenged procedures as part of the "manner" in which the census is conducted. See Utah v. Evans ,
Finally, plaintiffs here articulate a challenge to "how" the Secretary intends to count the population-by using a questionnaire that will allegedly exacerbate non-response rates in certain communities. Even under defendants' strained reading of the Enumeration Clause, plaintiffs' claims are not insulated from judicial review by the text of the Constitution.
2. Judicially Manageable Standards
Defendants characterize the decision to add a citizenship question as a policy decision regarding census procedures. In this case, defendants assert, the Secretary balanced the need for citizenship information against the cost and effectiveness of efforts to mitigate non-responses, the possibility of lower response rates, the cost of increased non-response follow-up, and the completeness and cost of administrative records. Defendants contend there are no judicially manageable standards for determining how to weigh these factors because they do not implicate the constitutional command to count rather than estimate the population. Such a determination would involve cost/benefit analysis and value judgments that are beyond the province of the court's judgment.
*743Defendants again distinguish prior census-related cases decided by the Supreme Court on grounds that all concerned calculation methodologies, rather than pre-count information-gathering functions or content determinations. See, e.g. Utah ,
Yet nothing in these cases indicates that guidance regarding judicial evaluation of calculation methodologies may not also govern challenges to other census-related decisions. The Supreme Court has identified several guiding principles that are applicable here. Although the Court has declined to "decide ... the precise methodological limits foreseen by the Census Clause," it has found a "strong constitutional interest in accuracy." Utah ,
In addition to these constitutional parameters, reference may be made to a variety of judicially manageable standards from a number of statutes, regulations, and policies, including the Paperwork Reduction Act, OMG's Statistical Policy Directives, and the Bureau's own Statistical Quality Standards. Conformance with established procedures may be evaluated without requiring a second-guess of the Secretary's balancing of various policy options. Therefore, for the reasons articulated above, the political question doctrine does not preclude review of plaintiffs' claims.
C. Administrative Procedure Act
The APA authorizes courts to set aside final agency actions, findings, and conclusions that are "arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law."
*744Bowen v. Michigan Acad. of Family Physicians ,
Application of section 701(a)(2)"requires careful examination of the statute on which the claim of agency illegality is based," Webster ,
Under the Census Act, Congress's delegation of authority to the Secretary is a broad one: "The Secretary shall ... take a decennial census of the population ... in such form and content as he may determine," and "[i]n connection with any such census, the Secretary is authorized to obtain such other census information as necessary."
In the specific context of the census, the Supreme Court has confirmed that Congress's authority over the census is accorded substantial deference. Wisconsin v. New York ,
The text of the Constitution vests Congress with virtually unlimited discretion in conducting the decennial "actual Enumeration," see Art. I, § 2, cl. 3, and notwithstanding the plethora of lawsuits that inevitably accompany each decennial census, there is no basis for thinking that Congress' discretion is more limited than the text of the Constitution provides.... Through the Census Act, Congress has delegated its broad authority over the census to the Secretary.
Some courts have concluded that the absence of "guidelines for an accurate decennial census" from the Constitution, the *745Census Act, and the APA itself creates "the inference ... that these enactments do not create justiciable rights." Tucker v. Dep't of Commerce ,
As described in the preceding section of this Order, the Constitution provides a standard for determining whether the Secretary's decision violates the APA. In searching for a meaningful standard of judicial review, courts may look beyond the statute authorizing agency action and consider other statutes and "regulations, established agency policies, or judicial decisions." Mendez-Gutierrez v. Ashcroft ,
Plaintiffs allege that citizenship data from a decennial census will not assist enforcement of the Voting Rights Act, and will instead cause injury to those populations the Act was designed to protect. Accordingly, they accuse defendants of sacrificing census accuracy for an illegitimate and unsupported purpose. FAC §§ 14-15. While perfect census accuracy is clearly not required, a decision that both undermines the accuracy of the enumeration process and does so without reasonable justification may be adjudged "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law."
A substantial body of federal regulations and Census Bureau policies also provide manageable standards against which the Secretary's actions can be measured. In particular, the Bureau's own Statistical Quality Standards guide the process-from planning to collecting to analyzing and reporting-of producing Bureau information products. See Bureau's Statistical Quality Standards at i. The document instructs, "All Census Bureau employees ... must comply with these standards."
Even confined to the text of
Most recently, in a thoughtful and meticulously researched analysis of the issue, District Judge Furman noted that the Census Act, read as a whole, "imposes any number of mandatory duties upon the Secretary," including obligations to prepare the census questionnaire, take a decennial census, to complete the census within nine months, and to furnish a report of the census to Congress prior to the census date. See State v. U.S. Dep't of Commerce ,
Defendants articulate no persuasive reasons to depart from the considerable precedent identified above. For these reasons, plaintiffs are not precluded from seeking judicial review of their claims under the APA.
D. Enumeration Clause
Finally, even if this Court finds plaintiffs' claims justiciable, defendants argue plaintiffs' claim under the Enumeration Clause should be dismissed. The Constitution's only command with respect to the "actual Enumeration," defendants contend, is that the Secretary must conduct a person-by-person headcount. As long as the Secretary is counting rather than estimating the population, the requirements of the Enumeration Clause, they insist, are satisfied.
According to defendants, plaintiffs have not, and cannot, allege that the Secretary has failed to establish procedures for counting every resident of the United States. The Census Bureau has comprehensive procedures in place for non-response follow-up and will attempt to contact every person in the country. 2020 *747Census Operational Plan, at 88-92, 112-21. These procedures include multiple mailings, digital methods and automation, and in-person visits by a census enumerator. In light of these intensive efforts, defendants argue, the mere possibility of an undercount is insufficient to establish a violation of the Enumeration Clause. See Utah ,
Plaintiffs' theory, defendants contend, would call into question a whole host of demographic questions on the current and prior census forms-related to sex, origin, race, and relationship status-as some people may prefer not to answer those questions either. It would also challenge the constitutionality of asking demographic questions on the long-form questionnaire sent to a small subset of the population, which has been shown to elicit a lower response rate. See Census Topic Report No. 11, Response Rates and Behavior Analysis, at 9, https://www.census.gov/pred/www/rpts/TR11.pdf (concluding that mail-back response rate for 2010 long form was 9.6% lower than short form). Courts recognize that demographic information-gathering serves as "a linchpin of the federal statistical system by collecting data on the characteristics of individuals, households, and housing units throughout the country." Dep't of Commerce ,
The history of the census reflects that demographic questions have long been a part of the enumeration process since its inception. See Dep't of Commerce ,
Yet plaintiffs do not frame their objection to the citizenship question as an inherent disagreement with citizenship as a proper subject for the census, nor is theirs a challenge to the general proposition that the Secretary is empowered by Congress to collect demographic information through the decennial census. The long history of demographic questions appearing on the census questionnaire, including questions regarding place of birth and immigration status, confirms that the specific act of including a citizenship question on the census is not, by and of itself, beyond the Secretary's authority under the Enumeration Clause. At oral argument, counsel for plaintiffs also made clear that they were not taking the position that every single past census that included a citizenship question was constitutionally defective. In other words, plaintiffs do not ask for a determination on whether the Constitution categorically prohibits the Secretary from asking census respondents about their citizenship, only whether he is precluded under these particular facts.
Plaintiffs agree that the standard for evaluating a challenge under the Enumeration Clause is an objective one-that is, the Secretary's actions either satisfy the constitutional mandate or they do not. Because the Constitution instructs the Secretary to count the population, plaintiffs urge the proper focus of the Court's inquiry is on the effect of asking a question about citizenship in the context of this decennial census taking. For that reason, plaintiffs argue, a question that chills participation in the census process today might not necessarily have been chilling in 1950. Indeed, the operative complaints are replete with examples of government policies, actions, and rhetoric within the last year that would tend to make non-citizens and their family members potentially afraid to divulge their household's citizenship status to a federal agency. These government activities logically shape the impact of asking a citizenship question on the 2020 Census questionnaire specifically. Thus, it is plaintiffs' position that the decision to ask a citizenship question in 2020 is reviewable under the Enumeration Clause without implicating the constitutionality of other demographic questions in general, or past iterations of the citizenship question in particular.
Although a close question, plaintiffs' claim under the Enumeration Clause may proceed past the pleading stage. First, defendants' assertion, in their papers and at oral argument, that the Secretary's exercise of discretion to add questions to the census questionnaire is never subject to constitutional scrutiny, is overbroad. Second, although the census has included questions relating to citizenship and other demographic characteristics throughout its history, the constitutionality of asking about citizenship in particular has never been actually tested. Third, the Supreme Court has identified a "strong constitutional interest in accuracy," Utah ,
Here, plaintiffs aver that the citizenship question on the 2020 Census questionnaire is one such question. They argue it is unusually sensitive in light of the current political climate, that the question will have a material impact on the census count, that the effects will be unevenly distributed, and that the resulting undercount will be significant enough to affect the reapportionment of representatives among the states. Thus, while each and every question on the census need not be related to the goal of actual enumeration, see Baldridge v. Shapiro ,
V. CONCLUSION
For the reasons set forth above, defendants' motions to dismiss are denied.
IT IS SO ORDERED.
The Los Angeles Unified School District ("LAUSD") filed a motion to intervene in this case on the side of plaintiffs. As LAUSD states valid grounds for intervention, and defendants do not oppose, the motion is granted. All arguments asserted by defendants against plaintiffs in this action are taken to be asserted equally against LAUSD.
Plaintiffs in 18-cv-2279 set out two separately articulated constitutional claims, one for violation of the Constitution's " 'Actual Enumeration' Mandate; U.S. Const., art. I § 2, cl. 3," and one for violation of the "Apportionment Clause; U.S. Const., Amend. XIV § 2." At oral argument, San Jose/BAJI plaintiffs took the position that the latter claim could survive independently of the former. While plaintiffs here allege a violation of the constitutional mandate to count the population, in part because of its projected effect on apportionment, they do not allege a defect in the method of apportioning representatives itself. C.f. Dep't of Commerce v. Montana ,
Unless otherwise noted, this synopsis is based on facts drawn from the operative complaints, which must be taken as true for purposes of a 12(b)(6) motion. Because defendants' 12(b)(1) motion is framed as a facial rather than factual attack upon plaintiffs' claim to federal subject matter jurisdiction, the Court "must accept as true the allegations of the complaint." U.S. ex rel. Lujan v. Hughes Aircraft Co. ,
For the sake of clarity, references to defendants' motion to dismiss are to the motion filed in 18-cv-1865 unless otherwise noted.
While plaintiffs' general allegations that the citizenship question will cause an undercount are sufficient at the pleading stage, State of California plaintiffs also aver specifically that "the Bureau will be unable to take sufficient measures to avoid or mitigate the resulting undercount of non-citizens and their citizen relatives if the citizenship question is included in the 2020 Census." FAC ¶ 38.
Carey challenged an undercount that was projected disproportionately to affect New York State and New York City, Glavin challenged the planned use of statistical sampling in the next decennial census, and City of Philadelphia challenged the Bureau's refusal to make adjustments to the census count on the grounds that it was likely to result in a loss of funding to the city and its residents.