IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et al., Plaintiffs, v. Civil Action No. 18-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants. BRIEF OF CURRENT MEMBERS OF CONGRESS AND BIPARTISAN FORMER MEMBERS OF CONGRESS AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS Elizabeth B. Wydra Brianne J. Gorod David H. Gans CONSTITUTIONAL ACCOUNTABILITY CENTER 1200 18th Street, N.W., Suite 501 Washington, D.C. 20036 (202) 296-6889 [email protected] Counsel for Amici Members of Congress TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................................. ii INTEREST OF AMICI CURIAE ............................................................................................ 1 INTRODUCTION .................................................................................................................. 1 ARGUMENT .......................................................................................................................... 6 I. The Text and History of the Census Clause Require the Federal Government To Count All Persons To Ensure Equal Representation for All Persons .............. 6 II. The Fourteenth Amendment Reaffirmed the Constitutional Obligation To Count All Persons, Citizens and Noncitizens Alike ............................................. 11 III. Congress’s Power To Determine the “Manner” of Taking the Census Does Not Permit an End Run Around the Constitutional Duty To Count All Persons ........ 14 IV. Addition of the Untested Citizenship Question Does Not Advance Any Legitimate Governmental Interest ........................................................................ 17 CONCLUSION ....................................................................................................................... 19 APPENDIX ............................................................................................................................. 1A TABLE OF AUTHORITIES Page(s) CASES Cook v. Gralike, 531 U.S. 510 (2001) .................................................................................................... 15 Dep’t of Commerce v. U.S. House of Representatives, 525 U.S. 316 (1999) .................................................................................................... 8, 15 Epic Sys. Corp. v. Lewis, Nos. 16–285, 16–300, 16–307, 2018 WL 2292444 (U.S. May 21, 2018) .................. 17 Evenwel v. Abbot, 136 S. Ct. 1120 (2016) ....................................................................................... 2, 6, 11, 12 Fed’n for Am. Immigration Reform v. Klutznick, 486 F. Supp. 564 (D.D.C. 1980) ................................................................................. 3 Montes v. City of Yakima, 40 F. Supp. 3d 1377 (E.D. Wash. 2014) ..................................................................... 18 Tashijian v. Republican Party of Conn., 479 U.S. 208 (1986) .................................................................................................... 16 Utah v. Evans, 536 U.S. 452 (2002) ............................................................................................ 2, 4, 7, 8, 9 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) .................................................................................................... 15 V.L. v. E.L., 136 S. Ct. 1017 (2016) ................................................................................................ 16 Wesberry v. Sanders, 376 U.S. 1 (1964) ........................................................................................................ 2, 15 Wisconsin v. City of New York, 517 U.S. 1 (1996) ........................................................................................................ 5, 14, 17 CONSTITUTIONAL PROVISIONS AND LEGISLATIVE MATERIALS U.S. Const. art. I, § 2, cl. 3 ............................................................................................... 1, 6 U.S. Const. art. I, § 4, cl. 1 ............................................................................................... 15 ii TABLE OF AUTHORITIES – cont’d Page(s) U.S. Const. art. IV, § 1 ..................................................................................................... 16 U.S. Const. amend. XIV, § 2 ........................................................................................... 1, 11 Cong. Globe, 39th Cong., 1st Sess. (1866) ................................................................ 2, 11, 12, 13 Immigration and Customs Enf’t and Customs and Border Protection Fiscal Year 2018 Budget Request: Hearing Before the Subcomm. on Homeland Sec. of the H. Comm. on Appropriations, 115th Cong. (2017) .......................................................... 3 Progress Report on the 2020 Census: Hearing Before the H. Comm. on Oversight & Gov’t Reform, 115th Cong. (2018) .............................................................................. 18 Report of the Joint Committee on Reconstruction, at the First Session Thirty-Ninth Congress (1866) .......................................................................................................... 12 BOOKS, ARTICLES, AND OTHER AUTHORITIES Akhil Reed Amar, America’s Constitution: A Biography (2005) ................................. 7, 10 Margo Anderson, The Census and the Federal Statistical System: Historical Perspectives, 631 Annals of Am. Acad. of Poli. & Soc. Sci. 152 (2010) ................ 7 2 The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Jonathan Elliot ed., 2d ed. 1836) ........................................................ 7 4 The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Jonathan Elliot ed., 2d ed. 1836) ........................................................ 6 The Federalist No. 36 (Hamilton) (Clinton Rossiter rev. ed., 1999) ............................ 2, 9, 15 Andrew Koppelman, Dumb and DOMA: Why the Defense of Marriage Act Is Unconstitutional, 83 Iowa L. Rev. 1 (1997) ............................................................. 16 Douglas Laycock, Equal Citizens of Equal Territorial States: The Constitutional Foundation of Choice of Law, 92 Colum. L. Rev. 249 (1992) ................................ 16 James Madison, Census (Feb. 2, 1790), in 13 The Papers of James Madison (Charles F. Hobson & Robert A. Rutland eds., 1981) ............................................................. 8 Mikelyn Meyers, Ctr. For Survey Mgmt., U.S. Census Bureau, Respondent Confidentiality Concerns and Possible Effects on Response Rates and Data Quality for the 2020 Census (Nov. 2, 2017) ............................................................... 3 ii i TABLE OF AUTHORITIES – cont’d Page(s) Paul Overberg & Janet Adamy, Trump Administration Plans To Check Your Answer on Census Citizenship Question, Wall St. J. (Apr. 3, 2018) ....................................... 4 Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (1996) ...................................................................................................... 7 1 The Records of the Federal Convention of 1787 (Max Farrand ed., 1911) ............... passim 2 The Records of the Federal Convention of 1787 (Max Farrand ed., 1911) ............... 10 2 Joseph Story, Commentaries on the Constitution § 633 (1833) ................................... 9 3 Joseph Story, Commentaries on the Constitution § 1306 (1833) ................................. 16 Gordon S. Wood, The Creation of the American Republic, 1776-1787 (2d ed. 1998) .... 7 iv INTEREST OF AMICI CURIAE1 Amici curiae are current members of Congress and bipartisan former members of Congress who have a strong interest in ensuring that the Census Bureau respects its constitutional duty to count all persons living in the United States, citizen and noncitizen alike. As current and former members of Congress, amici know that Census data is used to make critically important decisions, including regarding how representatives are apportioned in Congress; how Electoral College votes are distributed amongst the states; how state, local, and congressional districts are drawn; and how billions of dollars of federal funds to local communities are allocated. Thus, amici also appreciate that failing to count all persons in the United States—as our Constitution requires—would be enormously damaging, and the consequences of an unfair, inaccurate count would endure for at least the next ten years, and possibly much longer. Amici thus have a strong interest in this case. INTRODUCTION The Census is the cornerstone of our democracy. To ensure equal representation for all, the Constitution, through both Article I, Section 2 and the Fourteenth Amendment, explicitly requires the federal government to accurately conduct an “actual Enumeration” of the people. U.S. Const. art. I, § 2, cl. 3. This critical, all-inclusive constitutional language places a clear duty on the federal government to count the “whole number of persons in each State.” U.S. Const. amend. XIV, § 2. In other words, the federal government must count all people living in the United States, whether they are citizens or noncitizens, whether they were born in the United States or in a distant part of the world. The total-population standard—chosen by our Constitution’s Framers more than two centuries ago and reaffirmed following a bloody civil 1 No person or entity other than amici and their counsel assisted in or made a monetary contribution to the preparation or submission of this brief. 1 war—was considered the “natural & precise measure of Representation,” 1 The Records of the Federal Convention of 1787, at 605 (Max Farrand ed., 1911), and “the only true, practical and safe republican principle,” Cong. Globe, 39th Cong., 1st Sess. 2767 (1866). “Numbers, not voters; numbers, not property; this is the theory of the Constitution.” Id. “As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents.” Evenwel v. Abbot, 136 S. Ct. 1120, 1132 (2016). The Constitution draws no distinction between citizens and noncitizens, but rather requires that the “whole immigrant population should be numbered with the people and counted as part of them.” Cong. Globe, 39th Cong., 1st Sess. 432. It imposes a constitutional duty on the federal government to conduct a complete and accurate count of everyone in order to realize the “Constitution’s plain objective of making equal representation for equal numbers of people the fundamental goal for the House of Representatives.” Wesberry v. Sanders, 376 U.S. 1, 18 (1964). The Constitution’s mandate that the federal government count the population of the entire nation to ensure equal representation for all persons creates a “strong constitutional interest in accuracy.” Utah v. Evans, 536 U.S. 452, 478 (2002). The Framers knew that “those who have power in their hands will . . . always when they can . . . increase it,” 1 The Records of the Federal Convention at 578, and they enshrined the requirement that all persons be counted directly into the Constitution to “shut[] the door to partiality or oppression,” The Federalist No. 36, at 188 (Hamilton) (Clinton Rossiter rev. ed., 1999), and prevent the government from using “a mode” of taking the census “as will defeat the object[] and perpetuate the inequality,” 1 The Records of the Federal Convention at 571. The federal government may not manipulate the Census in order to make an end run around the Constitution’s requirement to count all persons, citizen and noncitizen alike. Yet that is what is happening in this case. 2 On March 26, 2018—many years into preparation and testing for the 2020 Census—the Secretary of the U.S. Department of Commerce ordered the Census Bureau to add a citizenship question to the Census, turning a blind eye to the overwhelming evidence that this question will deter participation by immigrants across the country, who do not want an official record of their immigration status and fear that their responses will be used by the government to harm them and their families. See Am. Compl. ¶¶ 36-54. The Census Bureau has long recognized that “any effort to ascertain citizenship will inevitably jeopardize the overall accuracy of the population count.” Fed’n for Am. Immigration Reform v. Klutznick, 486 F. Supp. 564, 568 (D.D.C. 1980) (three-judge court). This is particularly true today, given threats by the Trump Administration that every undocumented immigrant in the country “should be uncomfortable,” “should look over [their] shoulder,” and “need[s] to be worried.” Immigration and Customs Enf’t and Customs and Border Protection Fiscal Year 2018 Budget Request: Hearing Before the Subcomm. on Homeland Sec. of the H. Comm. on Appropriations, 115th Cong. 279 (2017) (statement of Thomas D. Homan, Acting Dir., Immigration and Customs Enf’t). Indeed, the Census Bureau’s own evidence demonstrated “an unprecedented ground swell in confidentiality and data sharing concerns, particularly among immigrants or those who live with immigrants.” Mikelyn Meyers, Ctr. For Survey Mgmt., U.S. Census Bureau, Respondent Confidentiality Concerns and Possible Effects on Response Rates and Data Quality for the 2020 Census 15 (Nov. 2, 2017), https://www2.census.gov/cac/nac/meetings/2017-11/Meyers-NAC-Confidentiality- Presentation.pdf. But the Secretary added the citizenship question to the 2020 Census anyway, ignoring the overwhelming evidence that it would undermine the constitutionally required count of all persons. 3 To make matters worse, the Secretary of Commerce announced that the government would use administrative records to double-check the accuracy of responses to the citizenship question, see Paul Overberg & Janet Adamy, Trump Administration Plans To Check Your Answer on Census Citizenship Question, Wall St. J. (Apr. 3, 2018), https://www.wsj.com/articles/trump-administration-plans-to-check-your-answer-on-new-census- citizenship-question-1522781033, exponentially increasing the chilling effect of the citizenship inquiry, and refused to subject the citizenship question to the careful testing the Census Bureau routinely uses to ensure that the questions on the Census accurately count all persons, see Am. Compl. ¶¶ 55-77. In the past, the Census Bureau has rigorously tested Census questions, recognizing that there are no do-overs when it comes to the Census, but inexplicably the Secretary refused to test the citizenship question at all. These actions, absent this Court’s intervention, threaten to undermine the constitutional requirement that there be an “actual Enumeration” of all persons in the country. Urging this Court to dismiss this case at the outset, the Department of Justice offers an extremely cramped interpretation of the Census Clause. According to the Department of Justice, the Constitution does not require the government to produce an accurate count of all persons at all, but simply requires it to “put in place procedures to count the population,” Mem. of Law in Supp. of Defs.’ Mot. to Dismiss at 2; id. at 30-31, even if those procedures skew the count and bias the results, as the citizenship question certainly would. This view is at odds with the constitutional commitment to count all persons, which reflects a “strong constitutional interest in accuracy,” Evans, 536 U.S. at 478, and it would license the kind of political manipulation of our Constitution’s promise of equal representation that the Framers wrote the Census Clause to 4 prevent. The government may not rig the constitutionally required count to produce a disproportionate undercount of disfavored segments of the population. The Secretary, of course, has broad powers, delegated by Congress, to conduct the Census, and “so long as the Secretary’s conduct of the census is ‘consistent with the constitutional language and the constitutional goal of equal representation,’ it is within the limits of the Constitution.” Wisconsin v. City of New York, 517 U.S. 1, 19-20 (1996) (quoting Franklin v. Massachusetts, 505 U.S. 788, 804 (1992)). But the addition of the citizenship question bears no “relationship to the accomplishment of an actual enumeration of the population, keeping in mind the constitutional purpose of the census.” Id. at 20. It is inconsistent with the text of the Constitution, which requires counting all persons, citizens and noncitizens alike, and would undermine the constitutional goal of equal representation, producing a disproportionate undercount of hard-to-count immigrant communities. Indeed, the Secretary has offered no Census-related purpose for asking all persons to divulge their citizenship status. The citizenship question will undermine—not realize—the “actual Enumeration” the Constitution mandates. The Secretary justified the decision to add the citizenship question to the 2020 Census solely on the ground that it was necessary to enforce the Voting Rights Act, but the Secretary has no expertise or authority to enforce the Act, and his reasoning is manifestly false. A citizenship question has never been viewed as necessary to ensure robust protection of the right to vote free from racial discrimination. Indeed, since the passage of the Voting Rights Act in 1965, the Census has never asked all persons to report their citizenship status. This is a specious justification for undercutting what the Constitution mandates: a count of all the people, regardless of their citizenship status. The motion to dismiss should be denied. 5