In the

Supreme Court of the United States

DEPARTMENT OF COMMERCE, ET AL., PETITIONERS

v.

STATE OF NEW YORK, ET AL., RESPONDENT

BRIEF FOR RESPONDENT

INTRODUCTION

The Constitution and the Census Act require the federal government to count every person in this country every ten years. This enumeration has momentous consequences: it determines the allocation of congressional seats, state and local apportionment, and the distribution of billions of dollars in federal funds. And there is just one chance each decade to get the enumeration right.

To ensure that this extraordinarily complex process serves its important purposes, the Department of Commerce and the Census Bureau have developed rigorous, scientifically tested standards to achieve an accurate and complete count. In applying those standards for the last seventy years, Commerce and the Bureau have emphatically declined to ask a citizenship question of every household. As the Bureau has long recognized, a citizenship question would exacerbate the undercount of noncitizen and Hispanic households, rendering the enumeration inaccurate in some States more than others, and undermining its constitutional and statutory purposes.

Secretary of Commerce Wilbur Ross disregarded this longstanding bipartisan and scientific consensus and ordered that a citizenship question be added to the 2020 questionnaire. In doing so, the Secretary rejected uncontroverted evidence showing that the citizenship question would reduce response rates among noncitizen and Hispanic households and thus harm the enumeration's distributive accuracy. He also sidestepped the Bureau's well-established procedures for testing changes to the questionnaire to avoid undercounts. And while the Secretary purported to rely on a Department of Justice (DOJ) request for better citizenship information for Voting Rights Act (VRA) enforcement, he ignored the unanimous evidence before him showing that more accurate citizenship information could be provided at lower cost without asking a citizenship question, and failed to disclose the active role that he and his staff had played in soliciting and then generating DOJ's supposedly independent request.

The United States District Court for the Southern District of New York (Furman, J.) made detailed factual findings that adding a citizenship question would affirmatively undermine the accuracy of the decennial census (among other harms) for no demonstrable benefit. The court correctly held that the Secretary's decision violated the Administrative Procedure Act (APA) because it was arbitrary and capricious, it was contrary to two provisions of the Census Act, and the rationale provided by the Secretary was pretextual. For similar reasons, the Secretary's decision violated the Enumeration Clause.

For each of these reasons, the judgment below should be affirmed.

STATEMENT

A. Modernization of the Decennial Census

1. The Constitution requires an "actual Enumeration" of the population every ten years. Art. I, 2, cl. 3; amend. XIV, 2. This enumeration must count all residents, regardless of citizenship. The enumeration affects the apportionment of representatives to Congress among the States; the allocation of electors to the Electoral College; the division of congressional, state, and local legislative districts within each State; and the distribution of hundreds of billions of dollars of federal funds. Congress has delegated the conduct of the decennial enumeration to the Secretary of Commerce, whose decisions are constrained by both statutory restric­tions and the constitutional requirement that the census bear a "reasonable relationship to the accom­plishment of an actual enumeration of the population."

2. Before 1960, the decennial census was a sprawling endeavor with two different and often-conflicting goals: counting the total population, and collecting other demographic information. The census questionnaire grew to include hundreds of questions covering such disparate topics as occupations, literacy, and health. The complexity of the questionnaire, administered by in-person enumerators who interviewed respondents and often misunderstood questions or answers, harmed the accuracy of both the enumeration and demographic data.

During this time, the census sometimes, but not always, requested citizenship information. Before 1960, seven of the fifteen decennial censuses did not seek citizenship status.

3. In 1960, the decennial census changed dramatically into its modern form. Growing sophisti­cation of data collection, statistical science, and testing procedures had by then allowed Commerce and the Bureau to understand that the census suffered from serious data-accuracy problems, and to develop ways to address those problems.

Increasingly robust evaluation procedures demonstrated that the census undercounted the population, and that this undercount was not spread evenly across demographic groups or geographic areas. Evaluations of the 1950 census, for example, demonstrated that the census had undercounted racial minorities at substantially higher rates than others.

Moreover, new data-collection techniques could provide information as accurate as, and sometimes more accurate than, demographic data collected via the decennial census, while lowering costs and lessening the burden on individual responders. Govern­ment records containing demographic information ("administrative records") had grown in number and scope with the creation of agencies like the Social Security Administration and the Immigration and Naturalization Service. And sampling - a technique that extrapolates informa­tion about the entire population from data about a representative subset - proved capable of producing highly accurate demographic data without harming the enumeration.

Given these developments, the 1960 census was dramatically changed to address the differential undercount and to reduce burdens and costs. For the first time, rather than relying on enumerators to visit each household, the Bureau sent the questionnaire by mail. Moreover, the questionnaire sent to most households (the "short form") was reduced to a few simple, noncontroversial questions, such as the number of individuals in each household and their race, gender, and marital status. All other demographic questions, including those about citizenship, were removed and placed on a "long form" questionnaire, initially sent to one of every four households, and later to one of six households. 

The 1950 census was thus the last time the census asked every household about citizenship. Ever since, Commerce and the Bureau have vigorously opposed adding a citizenship question to the questionnaire sent to every household, because doing so will "inevitably jeopardize the overall accuracy of the population count" by depressing responses from certain populations and contributing to a differential under­count.

After the 2000 census, the long-form question­naire was replaced by the American Community Survey (ACS), a yearly survey conducted separately from the decennial census, and distributed to about one of every thirty-six households.  

4. Congress substantially reformed the Census Act in 1976 to further modernize the census. These reforms permitted Commerce to collect demographic information, but placed important constraints on the use of the decen­nial census questionnaire for that purpose and prioritized other means of collecting such information.

To collect more up-to-date demographic information than the decennial census provides, Congress authorized the Secretary to conduct a mid­-decade census "in such form and content as he may determine, including the use of sampling procedures and special surveys. Congress used the same quoted language in the separate provision authorizing the Secretary to conduct the decennial census. This delegation of authority was "essentially the same" as "existing law," except that Congress added language to "encourage the use of sampling". The amendments also provided that the Secretary may use the decennial census to collect "other" information besides a "census of population," but only "as necessary."

Congress also expressly limited the Secretary's ability to use the decennial census to collect demo­graphic information (aside from total population), and directed him to use more accurate and less costly statistical techniques instead. First, Congress required the Secretary to use adminis­trative records instead of census questions to collect demographic data "to the maximum extent possible" given "the kind, timeliness, quality and scope of the statistics required." Second, where "feasible," the Secretary must use sampling instead of census questions to obtain demographic information beyond the enumeration. By prioritizing other means of collecting demographic information, Congress intended to mini­mize the census's burden on responding individuals and thus maximize census responses.

5. Since at least 1940, the decennial census has undergone extensive pretesting before census day. Such testing reflects not only the important consequences of the census, but also the fact that the decennial census is conducted only once every ten years, with little room for correction if problems arise. Pretesting is now a multi-year endeavor that subjects nearly every aspect of the census to a battery of evaluations, culminating in a comprehensive "dress rehearsal" to understand how all aspects of the census work together. A critical part of that process is pretesting individual questions to ensure that they yield accurate data without reducing census responses. Pretesting includes administering the questions to a sample of respondents to verify that they "c an be understood," "are not unduly sensitive," and "do not cause undue burden."

Overlapping statutes, guidelines, and agency practices govern testing. For example, the Office of Management and Budget's (OMB) data-quality standards direct Commerce to design the census "to achieve the highest practical rates of response," and thus require pretesting of census questions. The Bureau's Statistical Quality Standards likewise require that the census ''be pretested with respondents to identify problems" before implementation. When an already-pretested survey undergoes "substantive modifications," including the addition of a new ques­tion, "pretesting must be performed" again.

Commerce has consistently refused to add questions to the decennial census that performed poorly in pretesting. For the 1980 census, Commerce declined to replace a question about Spanish origin with a question about ethnicity after testing showed that misunderstandings about the question resulted in high nonresponse rates. For the 2000 census, Commerce declined to add a question requesting Social Security numbers after pretesting revealed a disproportionately distributed "3.4% decline in self-response rates attributable to the question."

B.  The Decision to Add a Citizenship Question

In a memorandum dated March 26, 2018, the Secretary announced his decision to add a citizenship question to the 2020 census questionnaire sent to every household.

1. The Secretary represented that he began assessing whether to add a citizenship question "following receipt" of a December 2017 letter from DOJ requesting block-level citizenship data to help enforce 2 of the VRA. But as the Secretary later acknowledged in a June 2018 supplemental decision memorandum, DOJ's letter had not initiated his decision-making. Rather, the Secretary had begun his "deliberative process" soon after his appointment in February 2017-almost a year before DOJ's letter. And DOJ had not submitted the December 2017 letter on its own initiative; rather, the Secretary and his staff had approached DOJ to urge them to request a citizenship question.

The supplemental memorandum also failed to fully disclose the Secretary's engagement with the issue before December 2017. The Secretary actually "made the decision months before DOJ sent its letter." The Secretary and his staff then "actively lobbied other agencies" to request a citizenship question, including both DOJ and the Department of Homeland Security (DHS).  After both agencies declined, the Secretary reached out to then-Attorney General Sessions, who discussed the issue with John Gore, then the Acting Assistant Attorney General for Civil Rights. The Attorney General's senior counselor reassured the Secretary's Chief of Staff that DOJ would "do whatever you all need us to do." Gore then wrote DOJ's December 2017 letter, signed by another DOJ official, requesting the addition of a citizenship ques­tion to the decennial questionnaire to provide DOJ with block-level citizenship data for VRA enforcement.

2. In December 2017 and January 2018, in response to DOJ's letter, Dr. John Abowd-the Bureau's Chief Scientist-and his team of experts analyzed the effects of adding a citizenship question to the decennial questionnaire in a series of memoranda. The Bureau conducted this analysis without any awareness of the Secretary's involvement in generating DOJ's letter.

The memoranda warned the Secretary that adding the question would not only depress the initial response rate for all households, but would also depress the response rate of households with a noncitizen by at least 5.1 percentage points more than for citizen households-approximately 1.6 million more people not responding. The memoranda explained that because this estimate was "cautious," the actual differential reduction in self-response rates would likely be much greater. The Bureau later updated its analysis to warn that the differential decline in response rates would be at least 5.8 percentage points-approximately 6.5 million people. While the Bureau attempts to address initial nonresponses through Nonresponse Followup (NRFU) procedures, the memoranda warned that NRFU would be "very costly" and would not resolve the problems introduced by the lower response rate.

By contrast, the Bureau explained that it could use existing administrative records to produce block-­level citizenship data as accurate as the block-level race, age, and ethnicity data DOJ already uses for VRA purposes. The Bureau would use the "Numident," a database contain­ing "information on every person" with a Social Security or Individual Taxpayer Identification Number. This database contains highly reliable citizenship information because individuals must provide proof of citizenship or immigration status to obtain these numbers. The Bureau would then "link" individual census responses to these database records by matching personal identifying information. The Bureau could already link roughly 90% of census respondents to Numident records, and planned to obtain additional records from other agencies to increase the number of successful linkages. The Bureau could then integrate this citizenship data with the other block-level census data that the Secretary produces and makes publicly available after every decennial census for redistricting and that DOJ already uses for VRA enforcement.

Because a citizenship question would generate "substantially less accurate" citizenship data than administrative records and would also impair the enumeration, the Bureau recommended using admin­istrative records to provide block-level citizenship data to DOJ. The Bureau's Acting Director informed DOJ that this approach would provide "higher quality citizenship data produced at lower cost" than adding a citizenship question. Although the Bureau sought to meet with DOJ to discuss this recommendation, the Attorney General directed DOJ to decline such a meeting.

Meanwhile, the Secretary directed the Bureau to analyze the effects of using both a citizenship question and administrative records to generate citizenship data. In a memorandum dated March 1, 2018, Dr. Abowd and his team provided the Secretary with an analysis concluding that this hybrid approach would "have all the negative cost and quality implications" of adding the citizenship question, ­including a decrease in self-response rates-while "result ing in poorer quality citizenship data than" using administrative records alone.

3. The Secretary then issued his March 26, 2018, decision memorandum announcing that he would both add a citizenship question to the decennial question­naire and use administrative records. The memorandum asserted that "limited empir­ical evidence exists about whether adding a citizen­ship question would decrease response rates", disregarding the multiple empirical analyses demonstrating that adding the question would disproportionately decrease response rates and harm the enumeration's accuracy. The memorandum also stated that the advantage of the Secretary's approach was that it would provide DOJ the "most complete and accurate" citizenship data, contrary to evidence that this approach would provide less complete and less accurate citizenship data than using administrative records alone. The Secretary further claimed that the citizenship question was sufficiently "well tested", even though the question had not undergone any of the testing that governs the census questionnaire.

C.  Procedural History

1. New York, seventeen other States, sixteen local governments, and the U.S. Conference of Mayors ("government respondents") filed a complaint alleging that the Secretary's decision to add a citizenship ques­tion violated the APA and the Enumeration Clause.  

2. Petitioners' initial Administrative Record contained scarcely any documents preceding DOJ's December 2017 letter, despite the Secretary's acknowl­edgment in his supplemental decision memorandum that he had been deliberating the citizenship question during that time. On July 3, 2018, the district court ordered petitioners to complete the Administrative Record, authorized limited expert discovery, and authorized additional discovery based on the irregularity of petitioners' initial record and on a strong showing of petitioners' bad faith and improper behavior. On August 17, the district court authorized a deposition of Gore, and on September 21 authorized a deposition of the Secretary.

This Court stayed the Secretary's deposition but declined to stay Gore's deposition or other discovery. The Court then granted certiorari to review the pretrial discovery orders, but declined to stay the trial.

3. Meanwhile, the district court denied petitioners' motion to dismiss the APA claims, concluding that the Secretary's decision to add a citizenship question to the decennial census was reviewable.

The court did, however, dismiss respondents' Enumeration Clause claim for failure to state a claim. While the court recognized that the Enumeration Clause reflects "a strong constitu­tional interest in accuracy", it held that the existence of a citizenship inquiry before 1960 precluded the argument that such a question was altogether forbidden by the Constitution.

4. After an eight-day trial, the district court issued an opinion containing detailed findings of fact and conclusions of law. The court entered final judgment vacating the Secretary's decision, enjoining the addition of a citizenship question to the 2020 census unless the legal defects identified by the court were cured, and remanding to Commerce.

First, the court evaluated what evidence it could properly consider. As the parties had agreed, the court considered the Administrative Record for any purpose and extra-record evidence to deter­mine respondents' standing. The court did not consider extra-record evidence to resolve whether petitioners had violated the APA, except where such material illuminated technical matters or showed a failure to consider important factors. The court further deter­mined that, while it could permissibly consider extra­-record material to decide whether the Secretary's decision was pre textual, it did not need to do so because it "would reach the same conclusions" based solely on the Administrative Record.

Second, the court determined that respondents had standing

Third, the court ruled that the Secretary's decision violated the APA in multiple independent ways. The decision was arbitrary and capricious, and based on a pretextual rationale. The decision was also contrary to law because it violated two statutes: one requiring the Secretary, "to the maximum extent possible," to acquire demographic information using administra­tive records rather than direct inquiries; and another precluding the Secretary from altering previously reported census topics without making certain findings and filing a new report with Congress. The court noted that extra-record evidence confirmed, but was not essential to, its conclusions on the APA claims.

Fourth, the court rejected the Fifth Amendment equal protection claim brought by private respondents in a consolidated case.

Finally, the court vacated as moot its order authorizing the Secretary's deposition.

5. The parties submitted opening briefs in this Court addressing the pretrial discovery issues. After the district court entered final judgment, respondents moved to dismiss the writ as improvi­dently granted. The Court suspended further briefing. The Court then granted certiorari before judgment in this case.

6. In a separate proceeding brought by different plaintiffs to challenge the addition of a citizenship question, the United States District Court for the Northern District of California, on March 6, 2019, issued a post-trial decision holding that the Secretary's decision violated both the APA and the Enumeration Clause. This Court directed the parties here to brief and argue, as an alternative ground for affirmance, whether the Secretary's decision violated the Enumeration Clause.  

SUMMARY OF ARGUMENT

I. Government respondents have standing.

Petitioners' opening brief does not dispute the district court's extensive findings about injury and redressa­bility. Instead, petitioners argue only that respondents' injuries are not traceable to the Secretary's decision to add a citizenship question because they are more proximately caused by the unlawful and irrational failure of third parties to respond to the census questionnaire. But this Court has long held that the intervening acts of third parties do not break the causal chain if those acts predictably result from challenged conduct. Here, the district court made factual findings-uncontested by petitioners-that the citizenship question will cause differential nonresponse rates for noncitizens and Hispanics, leading to a differential undercount and a decrease in data quality that will concretely injure respondents. Given this proof that third parties will react in ways that harm government respondents, it is immaterial whether their reactions are unlawful or irrational.

II. The Secretary's decision to add a citizenship question violates the APA.

A. The Secretary's decision is reviewable.

Petitioners misread 141(a) of the Census Act, as conferring unreviewable discretion on the Secretary to place whatever questions he wants on the decennial questionnaire. This Court has repeatedly reviewed the Secretary's actions under this provision. And petitioners' argument is inconsistent with the 1976 Census Act, which is the source of the language that petitioners rely on here. That enactment included multiple provisions that constrained the Secretary's conduct of the census and provide judicially manageable standards here, including the require­ment that the Secretary rely, to the "maximum extent possible," on administrative records rather than census questions to collect demographic information.

B. The Secretary's decision was arbitrary and caprICIOUS.

First, the Secretary unreasonably ignored the uncontroverted empirical evidence that the citizen­ship question would make the enumeration less accurate. All the evidence in the Administrative Record demonstrates that a citizenship question would cause millions of noncitizens and Hispanics to not respond to the census, undermining the accuracy of the constitutionally required headcount.

The Secretary was not entitled to dismiss this evidence as "inconclusive." That label is contradicted by the firm conclusions of the analyses themselves. More fundamentally, even if the evidence of an under­count were inconclusive, the Secretary's actions would still be unreasonable because he abandoned the well­-established process for testing proposed changes to the questionnaire. The testing process ensures that no change is made to the census without understanding its effects. Under this longstanding conservative approach, inconclusive evidence of harm does not permit altering the questionnaire without further testing.

Second, the Secretary acted contrary to the evidence by concluding that a citizenship question was necessary to provide DOJ with information for VRA enforcement. The Bureau informed the Secretary that it could obtain data sufficient to address DOJ's purported needs, without adding a citizenship question, by linking highly reliable administrative records containing citizenship status to individual census responses. The Secretary rejected that proposal in favor of a solution that purportedly would provide even more accurate citizenship information. But the Secretary never explained how using his preferred approach rather than the administrative-records approach would result in any improvement to VRA enforcement.

In any event, all the evidence in the Administrative Record demonstrates that the Secretary's solution ­using administrative records and adding a citizenship question-would provide less accurate citizenship data, at greater cost, than relying on administrative records alone. The Secretary disregarded the fact that the citizenship question will introduce significant errors not present under the administrative-records approach: at least 9.5 million wrong responses on citizenship status; the loss of information about additional millions of noncitizens and Hispanics due to the undercount; and an inability to link an additional one million individuals to administrative records. These harms are not offset by an increase in the number of census responses on citizenship status, as petitioners claim: the Administrative Record shows that a citizenship question will often trigger inaccurate responses, and the Bureau expressly concluded that sophisticated modeling based on available adminis­trative records would produce comparatively more accurate citizenship information.

Third, the Secretary failed to justify his conclusion that the purported benefit of providing DOJ more citizenship data "outweighs" any harm to the accuracy of the enumeration. The Constitution and the Census Act require the Secretary to prioritize an accurate enumeration due to the momentous consequences of the headcount, including its effect on the allocation of House seats and billions of dollars in federal funds. The Secretary provided no explanation for his judgment to subordinate that priority in favor of generating what he asserts (counter to the evidence) would be incrementally more accurate citizenship data.

Fourth, the Secretary's stated rationale was pretextual. While he claimed to be relying on DOJ's independent judgment about the need for a citizenship question, the district court found that it was in fact the Secretary and his staff who engineered DOJ's request from the outset. The Secretary's supposed reliance on DOJ's expertise thus could not provide the necessary rationale for his decision.

C. The Secretary's decision was also contrary to law.

First, given the evidence that administrative records alone would satisfy DOJ's VRA-enforcement needs, the Secretary's decision to add a citizenship question violated 13 U.S.C. 6(c), which requires the Secretary to collect demographic information using administrative records to the maximum extent possible instead of by posing direct inquiries through the decennial census. Second, the Secretary violated 13 U.S.C. 141() by adding the citizenship question without submitting the mandated report to Congress or making the required findings that new circum­stances necessitated a change.

III. The Secretary's decision violated the Enumeration Clause.

That provision requires the Secretary's decisions about the census to be reason­ably related to the pursuit of an accurate enumeration of the total population. The Secretary flouted this constitutional obligation by adding a citizenship ques­tion that would affirmatively undermine the accuracy of the headcount. And the Secretary's justification that the question would provide valuable information to DOJ is contradicted by the Administrative Record and the evidence produced at trial.

IV. Insofar as petitioners' challenge to extra­-record discovery is not moot, this Court should reject it.

The district court properly authorized discovery beyond the Administrative Record because petitioners had concededly failed to disclose the full basis for the Secretary's decision and had in fact obfuscated the Secretary's decision-making process. Discovery was therefore essential to provide the "whole record" that the APA requires.

CONCLUSION

Given this strong showing of bad faith or improper behavior, extra-record discovery was warranted to understand the basis on which the Secretary reached his decision.

For each of these reasons, the Court should affirm the judgment below.