# State v. Ross

> District Court, N.D. California · March 6, 2019 · 358 F. Supp. 3d 965

URL: https://www.frixlaw.com/law-library/cases/7252052

## Case

- **Full name:** STATE of California v. Wilbur ROSS, City of San Jose v. Wilbur L. Ross
- **Court:** District Court, N.D. California
- **Decided:** March 6, 2019
- **Citations:** 358 F. Supp. 3d 965
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Seeborgtablecontents
- **Judges:** Contents, Seeborg, Table
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7252052

## How later opinions describe it (automated extraction)

- describing the case law as a “morass’”

## Opinion text

RICHARD SEEBORG, United States District Judge *973 TABLE OF CONTENTS
I. SUMMARY OF DECISION...973
II. BACKGROUND...976
III. STANDING...977
A. Legal Standard...977
B. Findings of Fact Related to Standing...977
C. Conclusions of Law Related to Standing...1002
1. Injury-in-Fact...1002
2. Traceability...1006
3. Redressability...1007
IV. APA CLAIM...1007
A. Legal Standard...1007
B. Scope of Review...1008
C. Findings of Fact Based Exclusively on the Administrative Record...1009
D. Findings of Fact Based on Extra-Record Evidence...1026
E. Conclusions of Law...1037
V. CONSTITUTIONAL CLAIMS...1046
A. Legal Standard...1046
B. Scope of Review...1047
C. Conclusions of Law...1048
VI. REMEDIES...1049
I. SUMMARY OF DECISION
The formal decision by Secretary of Commerce Wilbur L. Ross, Jr. on March 26, 2018 to add a citizenship question to the 2020 Decennial Census violated the Administrative Procedure Act ("APA") and the Enumeration Clause of the United States Constitution. Nearly a year before issuing that decision, on May 2, 2017, Secretary Ross sent an email to Deputy Chief of Staff Earl Comstock stating in part "I am mystified why nothing [has] been done in response to my months old request that we include the citizenship question. Why not?" What ensued was a cynical search to find some reason, any reason, or an agency request to justify that preordained result.
As to the APA, one need look no further than the Administrative Record 1 to conclude *974 that the decision to include the citizenship question was arbitrary and capricious, represented an abuse of discretion, and was otherwise not in accordance with law. In response to Secretary Ross's demand, Comstock began to search for an agency that would be willing to request the inclusion of the citizenship question in the 2020 Census. When initially approached by Comstock about the citizenship question, the Department of Justice ("DOJ") opted not to request its inclusion in the census. Comstock then reached out to the Department of Homeland Security, which similarly declined to request the addition of the question. Only after Secretary Ross personally interceded with then Attorney General Jeff Sessions did the DOJ switch its position and request the inclusion of a citizenship question, ostensibly to assist in the enforcement of Section 2 of the Voting Rights Act ("VRA").
Despite unrefuted evidence produced by the professional staff of the Census Bureau that inclusion of a citizenship question would likely result in a significant differential decline in self-response rates within noncitizen and Latino communities and that the requested data could be obtained by other means, Secretary Ross insisted upon adding the citizenship question to the census. When Census Bureau staff offered to meet with DOJ staff to ascertain if other available data could be used to meet their VRA enforcement needs, DOJ took the unprecedented step of refusing to allow even such an inter-agency meeting to take place.
These facts and other evidence contained in the Administrative Record, along with all reasonable inferences to be drawn therefrom, demonstrate that Secretary Ross's reliance on VRA enforcement to justify inclusion of the citizenship question was mere pretext and the definition of an arbitrary and capricious governmental act. Moreover, Secretary Ross's conclusion that adding the citizenship question would enable the Census Burau to obtain more "complete and accurate data" in response to the DOJ's request is not only unsupported, it is directly contradicted by the scientific analysis contained in the Administrative Record. PTX-26 at 1, 7. While it is of course appropriate for an incoming cabinet member to advocate for different policy directions, to solicit support for such views from other agencies, and to disagree with his or her professional staff, this record reflects a profoundly different scenario: an effort to concoct a rationale bearing no plausible relation to the real reason, whatever that may be, underlying the decision.
Again confining review solely to the Administrative Record, it is evident that the inclusion of the citizenship question on the 2020 Census violated both Sections 6(c) and 141(f)(3) of the 1976 Census Act. Section 6(c) mandates that, to the maximum extent possible, the Secretary use administrative records as opposed to additional census questions to obtain secondary data, such as demographic information. Section 141(f) mandates certain timely reports to Congress regarding the subject and questions to be included on the census and limits the Secretary's ability subsequently to modify the contents of the census absent new circumstances that necessitate a change. Quite simply, Secretary Ross ignored these statutory requirements in issuing his March 26, 2018 decision.
While finding a violation of the APA logically flows from the Administrative Record in this action alone, the facts here satisfy the requisite standard warranting consideration of extra-record evidence. Such evidence includes the absence of any *975 effort to test the impact of the addition of the citizenship question to the census, the deviation from the Census Bureau's usual process for adding new questions to the census, the troubling circumstances under which the DOJ's request letter was drafted and procured, and Sessions' order prohibiting DOJ staff from meeting with Census Bureau officials to discuss alternative sources of data that could meet DOJ's VRA enforcement needs. Going beyond the Administrative Record, in short, confirms that the decision to include a citizenship question runs afoul of the APA.
The analysis of the Enumeration Clause claim similarly involves evidence beyond the four corners of the Administrative Record. As a general proposition, the decision to include a specific question on the census is committed to the discretion of the Commerce Secretary and does not implicate the constitutional command that all persons in each state be counted every ten years. However, if the Secretary's decision to include a question affirmatively interferes with the actual enumeration and fulfills no reasonable governmental purpose, it may form the basis for a cognizable Enumeration Clause challenge.
The evidence admitted in the trial of these actions demonstrates that a significant differential undercount, particularly impacting noncitizen and Latino communities, will result from the inclusion of a citizenship question on the 2020 Census, compounded by macro-environmental factors arising out of the national immigration debate. Efforts to ameliorate these effects through Non-Response Follow-Up ("NRFU"), the evidence showed, would not remediate and could in fact exacerbate the differential undercount of noncitizens and Latino persons. While a citizenship question had been included in the decennial census in 1950 and before, the analysis now must turn on the impact of that question on the prospect of achieving the central constitutional purpose of an actual enumeration in 2020. Viewed through that lens, the inclusion of the question is contrary to the Constitution.
Plaintiffs in each of these actions satisfied their burden of demonstrating standing under Article III of the Constitution. The State of California demonstrated that it will suffer a loss of federal funding and face a substantial risk of losing political representation directly traceable to the inclusion of the citizenship question on the census. California established that the inclusion of this question will also require the expenditure of additional funds to attempt to mitigate the effects of the question and minimize the resulting undercount of California vis-à-vis other states. Similarly, the City of San Jose and the Black Alliance for Just Immigration ("BAJI") each established injury directly flowing from the addition of the citizenship question. In the case of San Jose, it showed the negative impact on federal funding it would receive for various programs dependent on census data and the additional resources that would be required to attempt to mitigate those effects. As to BAJI, the organization demonstrated that it will be obliged to commit additional time and resources to address the specific effects of the citizenship question on its constituents and to encourage them to participate despite the perceived risks.
In light of the statutory and constitutional violations outlined above, the issue becomes the appropriate remedy. With respect to the APA claim, consistent with and for the reasons stated in New York v. United States Dep't of Commerce , No. 18-cv-2921 (S.D.N.Y. Jan. 15, 2019) (the "New York matter"), vacatur of the Secretary's decision, remand to the agency, and an injunction against inclusion of the citizenship question on the 2020 census is warranted *976 and will be ordered. As to the Enumeration Clause violation, an injunction is the proper relief. The Department of Commerce urges that any relief should be limited to the particular plaintiffs before the Court. While mindful of the concerns regarding individual district courts issuing orders of national scope, the limitation advanced by Defendants here is simply impractical in light of the nationwide nature of the questionnaire at issue. Accordingly, no such limitation will be included in the injunctive relief ordered by this Court.
II. BACKGROUND
This action, comprising two related cases, arises from the U.S. Census Bureau's decision to include a question regarding citizenship status on the 2020 Census questionnaire. Plaintiffs in Case No. 18-cv-1865 are the State of California, the County of Los Angeles, the City of Los Angeles, the City of Fremont, the City of Long Beach, the City of Oakland, the City of Stockton, and the Los Angeles Unified School District (collectively, "California Plaintiffs"). Plaintiffs in Case No. 18-cv-2279 are the City of San Jose and the Black Alliance for Just Immigration ("BAJI") (collectively, "San Jose Plaintiffs"). Defendants in both matters are Wilbur L. Ross, Jr., in his official capacity as Secretary of the U.S. Department of Commerce; the U.S. Department of Commerce; Stephen Dillingham, in his official capacity as Director of the United States Census Bureau; and the U.S. Census Bureau. During the relevant period Dr. Ron Jarmin served as Acting Director of the United States Census Bureau.
On March 26, 2018, Secretary Ross issued a memorandum (the "Decision Memo") directing the Census Bureau to add a question on citizenship status to the 2020 Census. PTX-1 at 1313-20. Plaintiffs contend the decision to include this question violated the Constitution and the APA. They specifically argue Secretary Ross's decision violated the Enumeration Clause, U.S. Const. art. I, § 2, cl. 3, and was "arbitrary, capricious, [and] otherwise not in accordance with law" under the APA, 5 U.S.C. § 706 (2)(A). 2 The San Jose Plaintiffs also allege a violation of the Apportionment Clause of the Constitution. U.S. Const. amend. XIV, § 2.
The process by which the decennial census is taken has changed significantly over the years, as have the questions asked in the census instrument. From 1790 to 1960, the Bureau collected data directly from households through in-person interviews. Undisputed Fact ("UF") 75. 3 Moreover, from 1820 to 1950, with the exception of 1840, respondents were asked a question concerning citizenship or birthplace. UF 67. The Census Bureau subsequently transitioned to a mailed questionnaire, which involved sending a "short form" questionnaire to most residences, and a "long form" questionnaire with significantly more questions to the remaining households. UF 77-78.
The long form questionnaires used in 1970, 1980, 1990, and 2000 included a question about citizenship status, whereas the short form questionnaires did not. UF 80. After the 2000 Decennial Census, the functions performed by the long form questionnaire were replaced by the American Community *977 Survey ("ACS"). UF 83. The ACS is a yearly survey of approximately 2% of households-about 3.5 million-across the United States. UF 85. A question concerning citizenship status currently appears among more than 50 questions on the ACS questionnaire. UF 86.
In keeping with recent practice, the 2020 Census will be "short form only." UF 102. The ACS will continue to be distributed as usual and will continue to include a citizenship question. UF 103. Per Secretary Ross's Decision Memo, the 2020 Census will also include a citizenship question. The text of this newly added question will read, "Is this person a citizen of the United States?," with the answer options "Yes, born in the United States"; "Yes, born in Puerto Rico, Guam, the U.S. Virgin Islands, or Northern Marianas"; "Yes, born abroad of U.S. citizen parent or parents"; "Yes, U.S. citizen by naturalization - Print year of naturalization"; and "No, not a U.S. citizen." UF 104. As in past years, the 2020 Census questionnaire will also pose questions regarding sex, Hispanic origin, race, and relationship status. UF 106. 4
III. STANDING
A. Legal Standard
In order to establish standing under Article III of the Constitution, a "plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins , --- U.S. ----, 136 S.Ct. 1540 , 1547, 194 L.Ed.2d 635 (2016) (citing Lujan v. Defs. of Wildlife , 504 U.S. 555 , 560-61, 112 S.Ct. 2130 , 119 L.Ed.2d 351 (1992) ). As the party invoking federal jurisdiction, the plaintiff bears the burden of establishing all three requirements by a preponderance of the evidence. Lujan , 504 U.S. at 561 , 112 S.Ct. 2130 .
B. Findings of Fact Related to Standing 5
1. Inclusion of the Citizenship Question on the 2020 Census Will Cause a Differential Decline in Self-Response Rates
1. Undisputed evidence in this case shows that adding a citizenship question to the 2020 Census will cause a differential decline in self-response rates for noncitizen and Hispanic households.
2. Defense expert Dr. John Abowd, Chief Scientist and Associate Director for Research and Methodology at the Census Bureau, testified credibly that the Census Bureau has produced quantitative evidence that adding a citizenship question to the 2020 Census will lower self-response rates. Tr. 797:20-25 (Abowd). He specifically endorsed the Census Bureau's finding that the citizenship question will lead to a lower self-response rate in both noncitizen and Hispanic households, New York Tr. 881:19-882:1 (Abowd); id. at 918:3-919:1 (Abowd), and that this lower response rates will harm the quality of census data, id. at 882:2-5 (Abowd). 6 The Plaintiff experts *978 similarly endorsed these conclusions. See Part III.B.1.e, infra .
a. December 22 Census Bureau Memo
3. The analysis that underpins Dr. Abowd's testimony is set forth in three memoranda issued by the Census Bureau: the December 22 Memo, PTX-148; the January 19 Memo, PTX-22; and the Brown, et al. Memo, PTX-160. New York Tr. 896:7-15 (Abowd); Census Bureau 30(b)(6) Dep. Vol. II 353:2-6, 353:19-21.
4. The December 22, 2017 Memo was authored by senior professional staff at the Census Bureau (nicknamed the "SWAT Team"). They found that, based on a comparison of self-response rates to the 2010 Census and the 2010 ACS (which included a citizenship question), noncitizen households were 5.1 percent less likely than all-citizen households to respond to a survey with a citizenship question. PTX-103 at 6-7; PTX-148 at 6-7. This finding is "consistent with citizenship questions being more sensitive for households with noncitizens." PTX-103 at 7; PTX-148 at 7.
b. Dr. Abowd's January 19 Memo
5. Dr. Abowd's January 19, 2018 Memo conveyed the 5.1 percent differential self-response estimate to Secretary Ross. PTX-22 at 4.
6. This finding was the result of just one of the "[t]hree distinct analyses" in the January 19 Memo that "support the conclusion of an adverse impact on self-response and, as a result, on the accuracy and quality of the 2020 Census." Id. The other two analyses focused on indicators that suggest that Hispanic households are disproportionately less likely to respond to a survey with a citizenship question.
7. The first of these anlyses focused on the item nonresponse rates-the rate at which respondents do not answer a particular survey question. New York Tr. 905:10-24 (Abowd). The Census Bureau found that item nonresponse rates for the citizenship question on the ACS were more than twice as high for Hispanics as for non-Hispanic whites from 2013 through 2016, and that the nonresponse rate for Hispanics increased by 2.5 percent relative to non-Hispanic whites over that span. PTX-22 at 4; see also New York Tr. 906:12-908:6 (Abowd); Tr. 156:4-157:19 (O'Muircheartaigh).
8. The second analysis considered breakoff rates-the rate at which respondents stop completing a survey when presented with a particular question. New York Tr. 913:13-24 (Abowd). It found that the breakoff rate for the citizenship question on the 2016 ACS was more than eight times higher for Hispanics than for non-Hispanic whites. PTX-22 at 5; see also New York Tr. 914:5-8 (Abowd); Tr. 158:4-21 (O'Muircheartaigh). Similarly, the breakoff rate for three related questions on immigration status (citizenship, place of birth, and year of entry) on the 2016 ACS was more than three times higher for Hispanics than for non-Hispanic whites. PTX-22 at 5; see also New York Tr. 915:9-13 (Abowd).
9. Based on the Census Bureau's analysis of item nonresponse rates and breakoff rates, Dr. Abowd testified credibly that a citizenship question would be sensitive for Hispanics, and that the sensitivity of the question is increasing for Hispanics (but not for non-Hispanic whites). New York Tr. 917:4-918:2 (Abowd).
c. Brown, et al. Memo
10. The Brown, et al. Memo builds upon and updates the analysis in Dr. Abowd's January 19 Memo. New York Tr. 896:7-12 (Abowd). This memo represents the Census Bureau's best analysis of the consequences of adding a citizenship question to the 2020 Census. Census Bureau 30(b)(6)
*979 Dep. Vol. II 355:15-356:15; New York Tr. 897:4-15 (Abowd).
11. The Brown, et al. Memo summarized its findings as follows:
This paper's examination of several Census Bureau surveys with and without citizenship questions suggests that households that may contain noncitizens are more sensitive to the inclusion of citizenship in the questionnaire than all-citizen households. The implication is that adding a citizenship question to the 2020 Census would lead to lower self-response rates in households potentially containing noncitizens, resulting in more nonresponse follow-up (NRFU) fieldwork, more proxy responses, and a lower-quality population count.
PTX-160 at 54.
12. The memo presented data showing that citizenship-related questions are more sensitive for Hispanics and that, because Hispanics have higher rates of nonresponse for citizenship than for sex or age, they could be disproportionately impacted by adding a citizenship question to the 2020 Census questionnaire. PTX-160 at 7-10.
13. The Census Bureau also updated the estimated 5.1 percent differential decline in the self-response rate of noncitizen households to 5.8 percent. PTX-160 at 39; Census Bureau 30(b)(6) Dep. Vol. II 372:2-12; New York Tr. 897:16-20 (Abowd); Tr. 161:13-21 (O'Muircheartaigh). This revised estimate is the result of a natural experiment that compared response rates on the 2016 ACS, which included a citizenship question, to response rates on the 2010 Census, which did not incorporate a citizenship question, and then compared the change in response rates between all-citizen households and all other households (i.e., households that contain or may contain one or more noncitizens). PTX-160 at 33-34; Census Bureau 30(b)(6) Dep. Vol. II 373:9-15, 374:10-16; New York Tr. 898:2-899:6 (Abowd); Tr. 161:22-164:17 (O'Muircheartaigh).
14. The 5.8 percent figure represents the Census Bureau's best conservative estimate of the differential effect of the citizenship question on noncitizen household self-response. New York Tr. 894:17-895:2, 897:9-12 (Abowd).
15. The Brown, et al. Memo emphasized that the 5.8 percent estimate is "conservative." PTX-160 at 39; New York Tr. 900:21-25 (Abowd); Tr. 164:21-24 (O'Muircheartaigh). The Bureau acknowledged that this figure may underestimate the impact of the citizenship question on census self-response rates for two reasons: (1) the question will be more prominent on the 2020 Census questionnaire, which has just ten other questions, than it was on the ACS questionnaire, which has 75 questions, PTX-160 at 39; New York Tr. 901:22-902:10 (Abowd); Tr. 164:25-165:14 (O'Muircheartaigh), and (2) given "the level of concern about using citizenship data for enforcement purposes," the macro-environment at the time of the 2020 Census may be worse than it was when the ACS data were collected, PTX-160 at 39; see also New York Tr. 902:11-24 (Abowd); Tr. 165:15-21 (O'Muircheartaigh).
16. The 5.8 percent estimate is also conservative because of limitations in the design of the natural experiment. For example, the natural experiment assumed that individuals whose citizenship information was missing from administrative records were citizens, which had the effect of reducing the estimated difference between the response rates of all-citizen households and noncitizen households. Tr. 165:25-166:15 (O'Muircheartaigh).
17. The Brown, et al. Memo also confirmed the findings in Dr. Abowd's January 19 Memo showing that (1) Hispanics *980 were more than twice as likely as non-Hispanic whites to skip the citizenship question on the ACS and that the differential in such item nonresponse rates increased between 2013 and 2016, and (2) the breakoff rate for the citizenship question on the 2016 ACS was more than eight times higher for Hispanics than for non-Hispanic whites. PTX-160 at 8-11. Based on this data, the Census Bureau concluded that Hispanics are more sensitive to survey questions about citizenship than they were a few years ago but that non-Hispanic whites are not. Census Bureau 30(b)(6) Dep. Vol. II 369:1-19. This suggests that nonresponse rates to the citizenship question on the 2020 Census will be higher for Hispanics than for non-Hispanic whites. New York Tr. 910:7-13, 914:9-12 (Abowd).
18. Recent Census Bureau data show that the differential breakoff is escalating. After the January 19 Memo and the Brown, et al. Memo were issued, the Census Bureau made the 2017 ACS breakoff data publicly available. New York Tr. 915:19-916:3 (Abowd). That data, which was reviewed by the SWAT team, showed that the breakoff rate for the citizenship question on the 2017 ACS is now twelve times higher for Hispanics than for non-Hispanic whites. New York Tr. 916:4-917:3 (Abowd).
d. CSM Memo and CBAMS Results
19. Recent Census Bureau qualitative research suggests that the citizenship question will cause an even greater differential decline in self-response rates than estimated by Brown, et al. The macro-environment, particularly the political environment around immigration, has the potential to amplify the negative effect of the citizenship question on self-response rates. New York Tr. 926:21-927:10 (Abowd).
20. This research includes the Census Bureau's Center for Survey Measurement ("CSM") focus group testing in 2017, which revealed increased concern among immigrants about the confidentiality of their survey responses, PTX-157 at 1, and the Census Barriers, Attitudes, and Motivators Study (CBAMS) conducted in 2018, which revealed concerns among Spanish language respondents about the citizenship question, PTX-153 at 21-22.
i. CSM Findings
21. CSM researchers summarized the respondent confidentiality concerns they observed in a September 20, 2017 memo for the Associate Directorate for Research and Methodology at the Census Bureau, PTX-157, and in presentations of their findings to the American Association of Public Opinion Research (AAPOR), PTX-158, and to the National Advisory Committee on Racial, Ethnic, and Other Populations, PTX-326.
22. During the pretesting studies conducted in 2017, CSM researchers "noticed a recent increase in respondents spontaneously expressing concerns about confidentiality" and "reported that respondents' fears, particularly among immigrant respondents, have increased markedly this year." PTX-157 at 1.
23. For example, CSM researchers observed Spanish-speaking respondents who were "uncomfortable 'registering' other household members," who "left three or four roomers off the roster" and "mentioned being worried because of their '[immigration] status,' " and who stated that "the Latino community will not sign up because they will think that Census will pass their information on and people can come looking for them." Id. at 2.
24. CSM researchers observed that "this level of deliberate falsification of the household roster, and spontaneous mention of concerns regarding negative attitudes toward immigrants, is largely unprecedented in the usability interviews *981 that CSM has been conducting since 2014 in preparation for the 2020 Census." Id. at 3. CSM researchers worried that the concerns expressed by immigrant respondents might be "even more pronounced" during the 2020 Census, because respondents are generally more willing to participate in pretesting surveys "given that they are being paid a cash incentive for their participation and [are] being interviewed by a researcher with whom they have established rapport." Id.
25. During focus group testing, respondents similarly expressed "fear of deportation[ ] [and] concern about how the data are used[ ] and which agencies can see it," specifically asking whether the Department of Homeland Security ("DHS") or Immigration and Customs Enforcement ("ICE") would have access to their data. PTX-326 at 9.
ii. CBAMS Findings
26. The CBAMS is a survey of 50,000 households in a series of 42 focus groups designed to inform the integrated partnership and communications program for the 2020 Census about the macro-environment. Census Bureau 30(b)(6) Dep. Vol. II 437:17-438:6; New York Tr. 927:22-928:6 (Abowd). The Census Bureau finds CBAMS research sufficiently reliable to provide actionable information for the integrated partnership and communications program. Census Bureau 30(b)(6) Dep. Vol. II 438:7-11.
27. After Secretary Ross announced that the 2020 Census would include a citizenship question, Census Bureau researchers began asking for feedback about the question from 30 of the 42 focus groups, including Spanish-language groups. PTX-161 at 6; see also New York Tr. 930:16-19 (Abowd).
28. The CBAMS found that in the Spanish-language (U.S. Mainland) focus groups, the citizenship question was a "determining factor for participation." PTX-153 at 22. Although most participants said that they were not afraid to answer the citizenship question because they are citizens or legal residents, they knew many others who would not participate in the 2020 Census "out of fear." Id. While all participants wanted to participate in the 2020 Census, "fear of deportation outweighs any benefit." Id.
29. The Census Bureau views the results of the Spanish-language focus groups with respect to the citizenship question as "extremely problematic." Census Bureau 30(b)(6) Dep. Vol. II 450:16-451:1; New York Tr. 934:8-12 (Abowd). Other immigrant and non-white groups raised similar concerns. New York Tr. 930:9-24, 938:22-939:17, 940:4-941:14 (Abowd).
30. Census Bureau researchers ultimately concluded that "[t]he citizenship question may be a major barrier" to participation in the 2020 Census because respondents, including citizens and legal residents, believed that the census's purpose "is to find undocumented immigrants" and because "[t]he political discourse is targeting their ethnic group." PTX-465 at 43.
31. The CBAMS results suggest that the citizenship question is sensitive in the current macro-environment and is a "major concern" for the Census Bureau's efforts to encourage participation in the 2020 Census within Hispanic communities. New York Tr. 944:7-24 (Abowd). Moreover, the increased sensitivity to the citizenship question that was observed in the 2018 CBAMS results was likely not captured in Brown, et al.'s 5.8 percent estimate, which was based on 2016 data. Id. at 944:25-945:4 (Abowd).
e. The Plaintiff Experts' Testimony
32. The Plaintiff experts' testimony further supports the conclusion that the citizenship question will cause a greater differential *982 decline in self-response rates than estimated by Brown, et al.
33. Dr. Colm O'Muircheartaigh, professor in the Harris School of Public Policy and senior fellow at the National Opinion Research Center (NORC) at the University of Chicago, testified that he agrees with the Census Bureau research discussed above. Tr. 33:4-17; 145:15-166:15 (O'Muircheartaigh). Dr. O'Muircheartaigh also cited additional factors that will exacerbate the effects of the differential decline in self-response rates caused by the citizenship question on the ultimate enumeration. Id. at 166:16-174:20 (O'Muircheartaigh).
34. First, missing units in the Census Bureau's Master Address File (MAF) contain a disproportionate number of immigrant and noncitizen households. Tr. 166:21-25 (O'Muircheartaigh). The MAF is the "first building block" of census data collection. Id. at 122:4-6. The MAF is constantly updated throughout the census-taking process. Tr. 803:23-805.7 (Abowd). In general, the census is unlikely to count persons whose households do not appear on the MAF. Id. at 46:1-6 (O'Muircheartaigh). Dr. O'Muircheartaigh testified that social science research, including recent research on Mexican immigrants, has observed that the Census Bureau has particular difficulty identifying household addresses for immigrants and noncitizens. Id. at 122:7-123:13, 124:7-17 (O'Muircheartaigh). To the extent that immigrant and noncitizen households are not identified by the Census Bureau and included in the MAF, and the residents of these households choose not to come forward to be counted because of the citizenship question, such households and their residents will not be included in the 2020 Census despite the Census Bureau's NRFU efforts. Id. at 166:21-167:14 (O'Muircheartaigh).
35. Second, respondents, especially those that live in households containing noncitizens, may omit certain household members on the census questionnaire because of fears generated by the citizenship question. Id. at 167:15-20 (O'Muircheartaigh). In particular, the 2017 CSM research observed that Spanish-speaking respondents were reluctant to provide a complete roster of household members. Id. at 147:18-148:16 (O'Muircheartaigh) (citing PTX-157). Dr. O'Muircheartaigh testified that such rostering omissions are a particularly problematic form of nonresponse because "[t]he quality of the census is fundamentally dependent on complete rostering of individuals within households," and "the census protocol has no mechanism for remediating such a response." Id. at 147:10-16, 148:8-149:9 (O'Muircheartaigh); Census Bureau 30(b)(6) Dep. Vol. II 397:19-399:2, 459:21-460:7.
36. Dr. O'Muircheartaigh credibly testified to the following conclusions relating to the impact of the citizenship question on self-response: (1) current survey methodology research, primarily by the Census Bureau, has observed that Latinos and immigrants hold considerable fears about participating in the 2020 Census, (2) the citizenship question will increase the Census Bureau's misidentification of households as unoccupied, particularly among Latinos and households with noncitizens, (3) the citizenship question will depress self-response rates, particularly for Latinos and households with noncitizens, and the Census Bureau's conservative estimate is that the self-response rate for households containing a noncitizen will be 5.8 percent lower than for all-citizen households, and (4) factors such as rostering errors will exacerbate the difference in the effective self-response rates of noncitizens versus citizens. Tr. 175:1-19 (O'Muircheartaigh).
*983 37. Dr. Matthew Barreto, a professor of political science and Chicano studies at the University of California, Los Angeles, Tr. 366:13-17 (Barreto), similarly testified that adding a citizenship question to the 2020 Census will reduce self-response rates, particularly among immigrants and Latinos, Id. at 374:7-15 (Barreto). Dr. Barreto's findings were based on a comprehensive literature review of research publications and reports, including those produced by the Census Bureau, related to response rates (as well as NRFU and imputation); an original survey he fielded in which he asked people about whether they intend to participate in the 2020 Census; and his expertise and years of experience implementing surveys in Latino and immigrant communities. Id. at 375:18-376:4, 379:19-380:7 (Barreto) (citing PTX-499).
38. Dr. Barreto identified three interrelated factors that affect survey participation: (1) trust, (2) sensitive questions, and (3) the macro-environment in which the survey is administered. Tr. 380:19-381:7, 383:13-16 (Barreto). Applying the literature on these factors to the citizenship question, Dr. Barreto concluded that the citizenship question will cause a significant decline in self-response rates on the 2020 Census because it is a sensitive question that will exacerbate trust issues in the current macro-environment, particularly for immigrants and immigrant-adjacent communities. Id. at 386:21-25, 411:5-14 (Barreto). Dr. Barreto defined "immigrant-adjacent communities" as communities with mixed-status households, where one family member is a U.S. citizen and another family member is not, and communities in which residents would interact with immigrants daily at work, school, or in other similar environments. Id. at 387:1-14 (Barreto).
39. A consistent finding in the social science research is that "if a potential respondent does not trust the survey taker to keep their information confidential and not put them at risk, then the survey respondent won't participate in the survey at all." Tr. 381:17-23 (Barreto). With regard to census participation specifically, Dr. Barreto observed that the Census Bureau, particularly in Manuel de la Puente's ethnographic studies of the 1990 and 2000 Censuses, found that "immigrant and undocumented populations in particular [ ] don't trust the federal government to fully protect or keep in confidence their information." Id. at 385:3-19, 390:12-395:7 (Barreto) (citing PTX-308 and PTX-309), see also id. at 388:11-389:8 (Barreto) (citing PTX-339). To break down the barriers he observed in his studies, Dr. de la Puente recommended that the Census Bureau work with community groups to assure them that the Census Bureau isn't seeking information about respondents' citizenship status. Id. at 393:25-394:15 (Barreto).
40. Moving on to the second factor, Dr. Barreto testified that "a sensitive question is one that asks a respondent for some very personal information that they may be uncomfortable revealing." Tr. 383:2-6 (Barreto). Social science research suggests that survey takers should "reduce unnecessary sensitive questions because they do create considerable trust issues with respondents." Id. at 383:10-12 (Barreto). Whether a question is sensitive varies in different environments and contexts and across subpopulations. Id. at 383:13-20, 384:19-385:2 (Barreto). Dr. Barreto observed that the citizenship question is likely to be most sensitive to "those who are closer to the immigrant experience or closer to [ ] immigrant communities," particularly "in the Latino community where there have been concerns over immigration-related issues over the past few years." Id. at 387:15-23 (Barreto).
*984 41. The third factor, macro-environment, is "the context in which any survey is being implemented," including "the social and political environment, the atmosphere that is present when the survey is being administered." Id. at 395:11-19 (Barreto). A respondent "may be more willing to participate if the context or the environment seems very agreeable and welcoming, and they may be far less likely to participate if the environment seems threatening or concerning." Id. at 395:20-25 (Barreto). Dr. Barreto observed that social science research has found that "[i]mmigrants and mixed-status households are likely to avoid government contact when they suspect it is unsafe to participate." Id. at 397:19-398:2 (Barreto). This observation holds true for a census with a citizenship question, because the question will be asked in a macro-environment that is perceived by many immigrants to be "threatening or negative." Id. at 396:3-13 (Barreto).
42. To evaluate participation in the 2020 Census, Dr. Barreto conducted a large national survey that inquired about people's attitudes and behaviors. Id. at 411:15-23 (Barreto). Within the scientific community, survey research is considered reliable and has predictive value. Id. at 414:2-7 (Barreto).
43. Dr. Barreto conducted his survey on a sample of 6,309 respondents from across the United States, including oversamples of Latinos nationwide and residents of the State of California, the City of San Jose, and two border counties in Texas. Id. at 424:8-19 (Barreto). Respondents were randomly chosen, and weighting was applied to balance out the demographic characteristics of the sample. Id. at 415:19-418:12, 434:2-435:19 (Barreto). In addition, the survey response rate-28.1 percent-was within the American Association of Public Opinion Research (AAPOR) response rate guidelines (at least 20 to 30 percent) for telephone surveys. Id. at 425:2-23 (Barreto).
44. Dr. Barreto set forth the results of his survey in a number of tables. PTX-499A, PTX-863 through PTX-890. He estimates that, because of the citizenship question, census response rates are likely to decline between 6.3 and 8.0 percent nationally and between 10.5 and 14.1 percent in the State of California. PTX-870; PTX-871; see also Tr. 457:17-458:3 (Barreto) (explaining PTX 870); id. at 461:9-20 (Barreto) (explaining PTX-871). The nonresponse rate attributed to the citizenship question in California is statistically higher than the nationwide average. Tr. 463:8-464:15 (Barreto) (explaining PTX-873). 7
45. Based on the Census Bureau's most current data, the average Latino household is larger than the average non-Latino household. Id. at 1036:12-1037:6 (Abowd). By factoring in the difference in average household size between Latino households and other households, Dr. Barreto estimated that Latinos would constitute approximately 35 percent (over 10 million) of the total number of persons (approximately 28 million) that would not self-respond to the 2020 Census because of the citizenship question, far surpassing the rate of Latinos in the national population (18 percent). Id. at 478:1-481:6 (Barreto) (explaining PTX-880 and PTX-881). This evidence further supports the conclusion that Latinos will be disproportionately affected by the *985 citizenship question. Id. at 480:9-14 (Barreto).
46. Although Dr. Barreto's study provides credible evidence that the inclusion of the citizenship question on the 2020 Census is likely to cause a decline in self-response rates among certain demographic groups relative to the rest of the population, some aspects of the survey design and methodology limit the weight the Court affords to this evidence. In particular, Dr. Barreto asks in Question 2 whether respondents would participate in the 2020 census if the federal government were to include a citizenship question on the questionnaire. Tr. 576:4-13. 8 By contrast, Question 1 specifically referred to the Census Bureau as the agency responsible for the census and asked respondents, without mentioning the citizenship question, whether they would participate in the 2020 census. Id. at 440:13-441:2. 9 It is plausible that respondents who are more distrustful of the federal government writ large than they are of the Census Bureau in particular may have responded negatively to Question 2 in part because of this difference in terminology. While this hardly represents a glaring flaw, it does diminish somewhat the weight to be afforded to the drop in willingness to respond between Question 1 and Question 2.
47. Defendants' remaining arguments that the decline in self-response rates between Question 1 and Question 2 should not be credited are unpersuasive. In particular, the fact that a randomized controlled trial ("RCT") may produce more accurate results than a survey does not automatically render Dr. Barreto's survey unreliable. See Tr. 874:10-19.
48. Ultimately, respondents' increased reluctance to participate in the census between Question 1 and Question 2 of Dr. Barreto's survey provides credible evidence that the addition of the citizenship question is likely to result in a significant decline in self-response rates in California and within the Latino population relative to the public at large.
2. NRFU Will Not Remediate the Differential Decline in Self-Response Rates
49. In keeping with recent practice, the Census Bureau will implement a series of NRFU operations to attempt to count the significant number of persons who do not self-respond to the 2020 Census, UF 39-47, including the millions who will not self-respond because of the citizenship question, PTX-22 at 6; PTX-160 at 42; New York Tr. 894:1-16 (Abowd). All available evidence indicates that at every NRFU stage, including the imputation phase, the Census Bureau will be differentially less effective at counting noncitizens and Latinos-the very subpopulations most likely not to respond to the 2020 Census because *986 of the citizenship question. Tr. 175:20-218:6 (O'Muircheartaigh).
a. Hard-to-Count Populations
50. The Census Bureau has always struggled to count hard-to-count subpopulations, including noncitizens and Latinos, even when the census count for the national population has been fairly accurate. Tr. 57:17-60:8 (O'Muircheartaigh). For example, as measured in the Census Bureau's post-enumeration surveys, Hispanics have been differentially undercounted compared to non-Hispanic whites in each of the last three censuses. Id. at 55:2-15, 56:11-57:5 (O'Muircheartaigh); UF 61-62. In the 2010 Census, Hispanics were undercounted by 1.54 percent and non-Hispanic whites were overcounted by .84 percent, resulting in a net differential undercount of Hispanics of 2.38 percent. Tr. 56:11-24; PTX-211 at 18. In the 2000 Census, Hispanics were undercounted by .71 percent and non-Hispanic whites were overcounted by 1.13 percent, resulting in a net differential undercount of Hispanics of 1.84 percent. PTX-211 at 18. In the 1990 Census, Hispanics were undercounted by 4.99 percent and non-Hispanic whites were undercounted by .68 percent, resulting in a net differential undercount of Hispanics of 4.31 percent. Id.
51. Hard-to-count subgroups include low-income persons, persons who do not live in traditional housing, persons who do not speak English fluently or have limited English proficiency, persons who have distrust in the government, racial and ethnic minorities, renters, undocumented immigrants or recent immigrants, and young children. Tr. 1021:19-1023:2 (Abowd); UF 59-60. Census Bureau research shows that there is "substantial overlap" between these hard-to count subgroups and those households most likely not to respond to the 2020 Census because of the citizenship question. Tr. 1023:3-7 (Abowd).
52. The Census Bureau has identified four primary obstacles to counting hard-to-count subpopulations: that they are hard to locate, hard to contact, hard to persuade, and hard to interview. Id. at 1023:8-24 (Abowd). For some hard-to-count subgroups, more than one of these obstacles applies. Id. at 1024:7-13 (Abowd). Census Bureau research acknowledges that these obstacles apply to those households most likely not to respond to the 2020 Census because of the citizenship question. Id. at 1023:25-1024:6 (Abowd).
b. The Census Bureau's Partnership and Communications Program
53. The Census Bureau has developed a range of strategies to address the net differential undercount of "hard-to-count" populations-including targeted marketing and outreach efforts, partnerships with community organizations, deployment of field staff to follow up with individuals who do not respond, and retention of staff with foreign language skills. UF 64.
54. In the 2000 and 2010 Censuses, the Census Bureau designed and implemented public advertising campaigns to reach hard-to-count immigrant communities, including using paid media in over a dozen different languages to improve responsiveness, and partnered with local businesses, faith-based groups, community organizations, elected officials, and ethnic organizations to reach these communities and improve the accuracy of the count. UF 65-66.
55. Defendants believe that a similar integrated partnership and communications campaign, in tandem with the Census Bureau's NRFU efforts, may mitigate the decline in self-response rates in the 2020 Census. Tr. 798:6-12, 799:21-800:14 (Abowd). Yet there is no evidence in the Administrative Record that Defendants' planned integrated partnership and communications campaign for the 2020 Census will significantly mitigate such a differential *987 decline in self-response rates. Dr. Abowd agreed that it is "highly unlikely" that the integrated partnership and communications campaign can eliminate the negative effects of adding a citizenship question. Id. at 980:3-11 (Abowd).
56. The Census Bureau also acknowledges that the "trusted partners" that it relies on to convey the importance of participating in the census will have additional challenges communicating that message if the 2020 Census includes the citizenship question. Census Bureau 30(b)(6) Dep. Vol. II 451:21-452:4, 453:2-17; New York Tr. 937:16-23 (Abowd). The CBAMS focus groups of Spanish-speaking respondents found that, "while there were suggestions of trusted voices, there does not seem to be a single trusted voice that could mitigate [respondents'] distrust of the government to uphold the promise of confidentiality." PTX-153 at 22. Dr. O'Muircheartaigh persuasively testified that this observation shows the citizenship question will "reduce[ ] the potential impact of the positive input of constituency, community, and association leaders" as these trusted voices attempt to convince their constituents to participate in the 2020 Census. Tr. 153:1-154:9 (O'Muircheartaigh).
57. Census Bureau research has noted one messaging strategy that is reassuring to Spanish-speaking respondents is to convey that "[n]one of the questions in this survey will ask about immigration status" and that "[b]y law, [the respondent's] answers cannot be shared with Immigrations and Customs Enforcement." PTX-158 at 16. Dr. Barreto similarly observed that, consistent with the findings in Dr. de la Puente's ethnographic studies, the most effective way- indeed, perhaps the "only way"-to address confidentiality concerns related to the citizenship question is "to assure respondents that no citizenship information is being gathered" in the 2020 Census. Tr. 500:17-501:5 (Barreto). Neither the Census Bureau nor trusted partners can offer such assurances because the citizenship question will be on the 2020 Census, unless the Census Bureau is instructed to remove it. Tr. 1052:8-12 (Abowd).
58. Moreover, despite the barriers to participation in the 2020 Census associated with the citizenship question, the Census Bureau has not significantly increased its spending on 2020 census outreach relative to that expended in 2010. Tr. 1024:18-1025:9 (Abowd).
c. The Census Bureau's NRFU Operations
59. The Census Bureau's NRFU workload includes all households that do not initially self-respond to the census. Tr. 851:16-852:2 (Abowd). In the 2010 Census, over 27 percent of the persons enumerated were in the NRFU workload. PTX-211 at 32-33 (subtracting from the U.S. total population (300,703,000) those persons not in any NRFU universe (219,207,000) and dividing by the total population). The NRFU workload for the 2020 Census is expected to rise to between 34.5 and 44.5 percent of the total population. PTX-1 at 172.
60. The Census Bureau's best conservative estimate is that adding a citizenship question to the 2020 Census will increase the NRFU workload by 2.09 million households and 6.5 million persons. PTX-160 at 42.
61. Based on his survey data, Dr. Barreto estimated that adding a citizenship question to the 2020 Census will increase the NRFU workload by at least 28 million persons, and that Latinos will be disproportionately represented in that workload. PTX-880; Tr. 480:5-14 (Barreto).
62. The Bureau's NRFU operations are designed to obtain an accurate count-and thus, to prevent an undercount-at the *988 national level. Tr. 918:11-16 (Abowd). In recent censuses, however, the Bureau's NRFU operations have been less effective at counting some subpopulations than others. Tr. 178:7-23 (O'Muircheartaigh).
63. Dr. Abowd testified that he is unaware of any "credible quantitative evidence" that adding a citizenship question will increase the net differential undercount of any subpopulation, after accounting for NRFU operations. Tr. 918:21-24 (Abowd). Dr. Abowd admitted, however, that it is "highly unlikely" that the Census Bureau's NRFU operations will eliminate a differential undercount in the 2020 Census. Id. at 980:12-981:2.
64. The Census Bureau's NRFU operations for the 2020 Census include in-person follow-up enumeration, proxy enumeration, administrative record enumeration, and imputation by other methods. UF 39-46; Tr. 176:13-177:20 (O'Muircheartaigh). The Census Bureau's NRFU operations for the 2010 Census included these same processes, with the exception of administrative record enumeration, which was used only on an experimental basis in 2010. Census Bureau 30(b)(6) Dep. Vol. II 400:19-401:21.
65. The weight of the evidence ultimately shows that these NRFU efforts are unlikely to mitigate significantly the differential decline in self-response caused by the citizenship question and may in fact exacerbate the problem. See Tr. 217:4-218:5 (O'Muircheartaigh).
i. In-Person Follow-Up Enumeration
66. The Census Bureau has repeatedly acknowledged that "[t]hose refusing to self-respond due to the citizenship question are particularly likely to refuse to respond in NRFU as well." PTX-25 at 4; see also PTX-160 at 41, 42 n.59 ("Households deciding not to self-respond because of the citizenship question are likely to refuse to cooperate with enumerators coming to their door....").
67. Although in-person follow-up enumeration is typically more effective than mail solicitation, "in this case for this population, the level of threat embodied by a federal agent arriving at your residence to collect the information is far greater than the threat that might be implied by a piece of paper [ ] that arrives at your residence." Tr. 190:2-10 (O'Muircheartaigh).
68. Given these conditions, the enumeration errors that will result "may not be avoidable simply by spending more money on fieldwork. Once a household decides not to cooperate, it may not be possible to obtain an accurate enumeration no matter how many times an enumerator knocks on their door." PTX-160 at 43 n.60; see also Tr. 190:20-191:21 (O'Muircheartaigh).
69. Recent data from ACS in-person follow-up enumeration efforts, specifically the Computer-Assisted Personal Interviewing (CAPI) operation, underscores the challenges that enumerators will face in the 2020 Census if, like the ACS, the census includes a citizenship question. Census Bureau 30(b)(6) Dep. Vol. I 124:19-133:17; Tr. 178:24-185:19 (O'Muircheartaigh) (describing PTX-138). The data, which was collected between 2010 through 2016, is consistent with the notion that questions on citizenship have become more sensitive since 2010. Census Bureau 30(b)(6) Dep. Vol. I 131:4-11.
70. The CAPI data exhibit the following trends: (1) in-person follow-up enumeration has been less effective over time in all census tracts, (2) in-person follow-up enumeration has been differentially less effective in census tracts with a higher proportion of households containing a noncitizen, and (3) the differential between census tracts with a higher proportion of households containing a noncitizen and census tracts with a lower proportion of households containing a noncitizen has *989 grown over time. Census Bureau 30(b)(6) Dep. Vol. I 129:22-130:4, 131:4-18, 133:8-17, Tr. 180:17-181:3 (O'Muircheartaigh).
71. The most recent CAPI data-from 2016-for the half of the population with a higher proportion of households containing a noncitizen indicate that in-person follow-up enumeration was 86.63 percent successful. Tr. 183:21-185:9 (O'Muircheartaigh). This rate "is an approximate representation of how...such households might behave in the context of the census." Id. at 185:10-19 (O'Muircheartaigh). Indeed, the success rate was lower (and conversely, the non-interview rate was higher) for in-person follow-up enumeration in the 2016 End-to-End Test and the 2018 End-to-End Test. Id. at 186:19-187:14 (describing PTX-482 at 26).
72. None of the testing that has been used to plan NRFU staffing levels, the number of field offices, enumerator training, NRFU protocols, or census questionnaire assistance has accounted for a citizenship question on the 2020 Census. Census Bureau 30(b)(6) Dep. Vol. I 198:2-10, 200:9-201:10. Although the Census Bureau's NRFU operations were used in the 2018 End-to End Test, Tr. 819:15-820:9 (Abowd), it did not include a citizenship question, Census Bureau 30(b)(6) Dep. Vol. I 225:13-16; Tr. 820:14-15 (Abowd).
73. The Census Bureau considers the NRFU operations to have been a success in the 2018 End-to-End Test. Tr. 820:19-23 (Abowd). But a U.S. Government Accountability ("GAO") report on NRFU implementation in connection with that test "raises some serious concerns." Tr. 98:3-8 (O'Muircheartaigh) (describing PTX-482).
74. That the Census Bureau did not determine the procedures for late-NRFU data collection until after it started work, for example, "seriously undermines the potential of the activity to be successful." Id. at 98:9-99:7. (O'Muircheartaigh) (describing PTX-482 at 11). This finding, in combination with similar findings that the field workforce was unprepared for certain enumeration challenges, id. at 99:8-100:15 (O'Muircheartaigh), and lacked adequate training, id. at 186:9-18 (O'Muircheartaigh) (describing PTX-482), led Dr. O'Muircheartaigh to conclude that the report was "a little disturbing." Id. at 101:9-12 (O'Muircheartaigh). These findings "cast[ ] doubt on...any projections that the Census Bureau has about how successfully it will operate in 2020, compared, for example, to 2010." Id. at 101:16-102:4 (O'Muircheartaigh).
ii. Proxy Enumeration
75. Locating a proxy respondent-a neighbor, landlord, postal worker, or other knowledgeable person who will provide information about another household-is generally not easy. Tr. 195:2-10 (O'Muircheartaigh). The Census Bureau expects that, just as with in-person follow-up enumeration, in census tracts with a higher proportion of households containing a noncitizen, the proxy enumeration rate will be lower than in other tracts. Census Bureau 30(b)(6) Dep. Vol. II 386:2-15; Tr. 196:25-197:6 (O'Muircheartaigh).
76. In other words, the challenge of finding willing proxy respondents will be greater in neighborhoods with households that are "fearful of the Administration and fearful of Census." Tr. 195:13-25 (O'Muircheartaigh). Potential proxy respondents will be "less likely to want to cooperate" if they are concerned about reporting undocumented immigrants. Id. at 521:15-522:2 (Barreto). Given that "reference persons are much less likely to answer the citizenship question for nonrelatives in the household than for themselves...they may be even less likely to answer it for neighbors." PTX-160 at 43; Census Bureau *990 30(b)(6) Dep. Vol. II 386:16-387:10; Tr. 523:3-17 (Barreto).
77. Even if located and willing to provide a response, proxy respondents generally provide lower quality enumeration data than self-responses. Census Bureau 30(b)(6) Vol. II 382:17-21; PTX-22 at 6; Tr. 931:14-24, 951:11-14 (Abowd). For example, in the 2010 Census, 97.3 percent of self-responses resulted in a correct enumeration, but the correct enumeration rate for proxy responses was just 70.2 percent. PTX-160 at 42 (citing PTX-211 at 33); Tr. 197:14-198:5 (O'Muircheartaigh).
78. Proxy responses are particularly inaccurate for persons in tenuous residential arrangements-a subpopulation that is disproportionately made up of Latinos and immigrants. Tr. 198:6-200:4 (O'Muircheartaigh). Because of the nature of these living arrangements-which include, for example, converted garages-proxy respondents "may not actually know how many people live there." Id. at 522:3-8 (Barreto).
79. Census Bureau research has also found that "proxies supply poor quality individual demographic and socioeconomic information about the person on behalf of whom they are responding." PTX-160 at 41-42; Tr. 200:23-201:8 (O'Muircheartaigh); id. at 937:6-19 (Abowd). Dr. Abowd conceded that the increased use of proxy responses "does impact data quality," including the quality of characteristic data. Id. at 887:13-24 (Abowd).
iii. Administrative Record Enumeration
80. Census Bureau research has observed that the quality of administrative records varies depending on the subpopulation. Tr. 204:18-205:3 (O'Muircheartiagh) (describing PTX-288). More specifically, the Bureau is less likely to be able to use administrative records to enumerate hard-to-count subpopulations, including noncitizens and Hispanics. Jarmin Dep. 285:1-286:20; Tr. 948:7-949:12 (Abowd), 205:4-12 (O'Muircheartaigh). Undocumented immigrants are particularly unlikely to be found in administrative records and will be harder to enumerate using such records. Census Bureau 30(b)(6) Dep. Vol. II 391:4-19; Tr. 205:13-17 (O'Muircheartaigh). Accordingly, the Census Bureau does not expect administrative record enumeration to be as successful with noncitizens as with citizens. Census Bureau 30(b)(6) Dep. Vol. II 391:21-392:4.
81. Similarly, the Census Bureau will be unable to link Hispanics to administrative records at as high a rate as it can link non-Hispanic whites. Census Bureau 30(b)(6) Dep. Vol. II 389:12-390:5.
82. Given the inability of the Census Bureau to use administrative records to count the very subpopulations most likely not respond to the 2020 Census because of the citizenship question, administrative record enumeration will not remediate the differential decline in self-response rates and may indeed exacerbate any differential undercount of noncitizens and Latinos. Tr. 206:4-19 (O'Muircheartaigh).
iv. Imputation
83. If the Census Bureau is unable to enumerate a household through other NRFU operations, it will impute, or model, the number of persons in the household and their characteristics. Tr. 942:17-20 (Abowd). In the decennial census, the Bureau uses "count imputation" to impute the size of the household, and "whole-person imputation" to impute both the size of the household and the characteristics of the people in the household. Id. at 892:10-15 (Abowd); PTX-22 at 5.
84. The Census Bureau concedes that whole-person imputations "are not very accurate." Census Bureau 30(b)(6) Dep. Vol. I 253:7-15.
*991 85. The Census Bureau anticipates that there will be 1.477 million more whole-person imputations in the 2020 Census because of the citizenship question. PTX-160 at 42-43.
86. The Census Bureau has not finalized the algorithms it will use for count imputation in the 2020 Census. Tr. 892:16-19 (Abowd). The accuracy of the Census Bureau's imputation model "is unknown at this time." PTX-160 at 44. The Census Bureau has recognized that any attempt to use imputation to count nonresponding persons "will be challenging due to the fact that nonresponse is highly correlated with citizenship." Id.
87. As in previous censuses, the Census Bureau expects to use a "hot-deck" imputation model that imputes missing households based on nearby households that the Census Bureau has counted and believes are similar in size, location, and other characteristics. Tr. 892:10-893:11 (Abowd), id at 208:19-209:12 (O'Muircheartaigh).
88. Because hot-deck imputation fills in missing data based on data that the Census Bureau has already collected, it is not neutral; by definition, it over-represents the household characteristics of the known population, in which those most likely not to respond to the citizenship question-in particular, noncitizens and Latinos-are underrepresented. Id. at 210:14-211:6, 211:24-212:6 (O'Muircheartaigh). Dr. Abowd confirmed that hard-to-count subpopulations will be imputed at a greater rate than the rest of the population. Id. at 981:8-13 (Abowd).
89. The Census Bureau's imputation model also fails to account for the larger household size, on average, of Hispanic households compared to other households. Tr. 528:1-24 (Barreto), 1036:25-1037:6 (Abowd). The Census Bureau's imputation model is built on the assumption that household size is "ignorable" missing data-that it is not correlated with nonresponse. Id. at 525:10-13 (Barreto). Given that those persons most likely not to respond to the 2020 Census because of the citizenship question, however, tend to come from larger households, household size is, in fact, "non-ignorable" data. Id. at 528:1-11 (Barreto); see also Tr. 1036:12-1037:6 (Abowd) (noting that, based on the Census Bureau's most current data, the average Latino household is larger than the average non-Latino household). The result is bias in the Census Bureau's imputation model. Id. at 985:10-14 (Abowd), 525:20-25 (Barreto).
90. Based on his survey data, Dr. Barreto presented quantitative evidence that the Census Bureau's imputation model will systematically undercount nonresponding households. Id. at 529:14-530:6 (Barreto). The data reveal that, on a national level, households that will not respond to a census with the citizenship question are larger, on average, than households that will respond, and that in California, the gap between these groups expands. Id. at 529:21-25, 530:7-9 (Barreto) (describing PTX-888 and PTX-889).
91. Dr. Barreto also constructed an imputation model based on the Census Bureau's 2010 imputation model, as described in PTX-344, the Bureau's J-12 memorandum. Like the Census Bureau's imputation model, Dr. Barreto's version predicted the household size of nonresponding households based on their 20 nearest neighbors, with controls for such factors as housing type, geographic proximity, and household demographics. Tr. 535:3-14 (Barreto). Because Dr. Barreto's survey data contained the household size of each nonresponding household, he was able to compare the imputation model's predicted household size to the actual size of these households. Id. at 535:15-19 (Barreto).
*992 92. Dr. Barreto's imputation analysis suggests that the Census Bureau's imputation model is likely to under-impute the household size of Latinos that do not respond to the 2020 Census because of the citizenship question at a rate of three-quarters of a person per household on average, as compared to similarly-situated Latino households that will respond to the census. Id. at 538:22-539:6 (Barreto) (describing PTX-468).
93. This evidence, suggests that imputation will not remediate the differential decline in self-response rates. Id. at 540:24-541:8 (Barreto), 212:9-17 (O'Muircheartaigh). In sum, the relative ineffectiveness of the Census Bureau's NRFU operations with respect to individuals who are unlikely to self-respond as a result of the citizenship question inevitably leads to the conclusion that the NRFU process is unlikely significantly to mitigate the disproportionate effect of the citizenship question on Latino and noncitizen households.
3. Inclusion of the Citizenship Question on the 2020 Census Will Result in a Differential Undercount of Noncitizens and Latinos
94. The weight of the evidence, both qualitative and quantitative, strongly suggests that the citizenship question will cause a net differential undercount of noncitizens and Latinos relative to all-citizen households.
95. The Census Bureau concedes, based on its own natural experiment, that the citizenship question will cause the self-response rate of noncitizen households to decline at least 5.8 percent. Part III.B.1.c, supra . The Census Bureau has also produced considerable qualitative research suggesting that the citizenship question will cause an even larger differential decline in the self-response rate of noncitizen households, and that these negative effects of the citizenship question will extend to other subpopulations, such as Hispanics. Part III.B.1.d, supra .
96. Dr. Barreto produced quantitative evidence that is consistent with the Census Bureau's research. Dr. Barreto's survey results further suggest that the citizenship question will cause a decline in the self-response rate in California that will be greater than the decline in the nation as a whole. Part III.B.1.e, supra .
97. In all recent censuses, the Census Bureau has differentially undercounted hard-to count subpopulations, most notably Hispanics, even after implementing all NRFU operations. Part III.B.2.a, supra .
98. The persons most likely not to self-respond to the citizenship question are also some of the most unlikely to be counted at every NRFU stage-in-person follow-up enumeration, proxy enumeration, administrative record enumeration, and imputation by other methods. Part III.B.2.c, supra.
99. In addition, the Census Bureau's NRFU operations are not designed to count persons that are missing from the MAF or are left off the roster by a family member or proxy respondent. Part III.B.1.e, supra . If such persons do not self-respond to the 2020 Census because of the citizenship question, they will not be counted. Moreover, noncitizens and immigrants, particularly Mexican immigrants, are more likely to live in housing that is missing from the MAF. Part III.E.1.b.
100. In sum, it is more likely than not that the citizenship question will cause a substantial net differential undercount of noncitizens and Latinos.
4. The Citizenship Question Will Harm Data Quality
101. Harm to the quality of census data is something the Census Bureau "tr[ies] to avoid." New York Tr. 953:18-20 (Abowd).
*993 It is undisputed, however, that the citizenship question will damage the quality of characteristic data collected through the 2020 Census, separate and apart from the damage to the count. These characteristics include gender, age, race, and ethnicity. Tr. 1001:17-24 (Abowd). The damage to data quality will also cause some people to be counted in the wrong place, including in the wrong area of a municipality, or even in the wrong state. Id. at 1003:5-16 (Abowd).
102. In the January 19 Memo, the Census Bureau concluded that adding a citizenship question to the 2020 Census will have an adverse impact on the quality of the data collected by the census. PTX-22 at 4. Because the citizenship question will lower self-response rates, the NRFU workload will increase, which will "degrade data quality because data obtained from NRFU have greater erroneous enumeration and whole-person imputation rates." Id. at 5. One reason that data quality will suffer is that data collected during NRFU are "much more likely to be collected from a proxy rather than a household member and, when they do come from a household member, that person has less accurate information than self-responders." Id. at 6.
103. In the March 1 Memo, the Census Bureau similarly concluded that a citizenship question will reduce data quality. PTX-25 at 4. The Brown, et al. Memo reached the same conclusion. PTX-160 at 54. Dr. Abowd's testimony confirms that adding the citizenship question will damage the quality of the data collected in the 2020 Census. New York Tr. 885:17-21 (Abowd). Dr. Abowd observed that data produced by lower self-response rates is less accurate than data produced by higher self-response rates. Id. at 881:19-882:5 (Abowd). Likewise, data produced by self-response is much more "reliable" than data produced by NRFU efforts. Id. at 953:2-14 (Abowd); Tr. 942:21-943:2 (Abowd). Therefore, by decreasing self-response rates and thus increasing reliance on NRFU efforts, the citizenship question will reduce the quality and accuracy of data produced during the 2020 Census. New York Tr. 881:19-882:5, 952:23-953:14 (Abowd); Tr. 934:16-935:1, 1001:17-24 (Abowd).
104. Dr. Abowd also acknowledged that inclusion of the citizenship question on the census would result in fewer persons being linked to administrative records, New York Tr. 969:2-23, 979:16-20, 981-17-19 (Abowd), which would reduce data quality, id. at 981:20-25. In contrast, using administrative records to provide DOJ with block-level CVAP data without adding the citizenship question to the census would not harm the quality of the census data. Id. at 958:5-18 (Abowd).
105. Dr. O'Muircheartaigh, Dr. Barreto, and Dr. Habermann confirmed that adding a citizenship question to the 2020 Census will harm the quality of the census data. Tr. 114:11-15, 217:21-22 (O'Muircheartaigh); id. at 492:16-21 (Barreto); PTX-821 at ¶¶ 47-54, 68. This is the consensus among scientists within and outside the Census Bureau. Tr. 114:11-15 (O'Muircheartaigh).
106. The increased degradation of data quality that results from adding a citizenship question to the 2020 Census cannot be mitigated. Id. at 935:3-5, 950:6-13, 1001:25-1002:8 (Abowd).
5. Inclusion of the Citizenship Question on the Census Will Result in a Loss of Federal Funding to Several Plaintiffs
a. The California Plaintiffs
i. The State of California
107. The citizenship question is more likely than not to cause the State of California to lose federal funding. This is because *994 any measurable differential undercount of households containing noncitizens will cause California to lose funding for its state-share programs. Reamer Decl. ¶¶ 20, 74; Tr. at 676:1-2, 677:6-14 (Reamer).
108. Dr. Andrew Reamer, who is an expert in the relationship between census data and federal financial assistance, Reamer Decl. ¶¶ 1-8, testified that a significant portion of federal domestic financial assistance is distributed on the basis of statistics derived from the decennial census, id. ¶ 10.
109. At least 320 federal domestic assistance programs used census-derived data to distribute about $ 900 billion in FY2016. Id. ¶ 10. Of these, there are 24 large federal financial assistance programs with geographic allocation formulas that rely in whole or part on census-derived data. Id. ¶¶ 10-11, Ex. D (PTX-245); Tr. 668:12-669:9 (Reamer); see also UF 52-56. Eighteen of these 24 programs are "state-share" programs, in that they rely in whole or in part on state share of a U.S. population total. Reamer Decl. ¶¶ 11, 17, Ex. D PTX-245). 10
110. As previously discussed, the citizenship question will cause a differential undercount of persons living in households containing noncitizens. This, in turn, will lead to a differential undercount of the population of states that have a disproportionate number of such persons, like California. See id. ¶ 17. This will impact a number of federal domestic financial assistance programs with census-tied geographic allocation formulas. Id. ¶¶ 16-18, 74.
111. Specifically, a differential undercount in the decennial census among persons who live in households containing noncitizens will lead to measurable fiscal losses across numerous federal programs for states with population percentages of households containing noncitizens that are above the national average, including California. Id. ¶¶ 17-18.
112. Dr. Reamer performed calculations using two alternative projections of the potential undercount of households containing at least one noncitizen resulting from the addition of a citizenship question, which undercount scenarios were applied to projections of the 2020 population by state. Id. ¶ 14. These projections were prepared by Plaintiff expert witness Dr. Bernard Fraga, id. ¶¶ 15, 35, and are discussed in greater detail in Parts III.B.6 and III.C.1.b, infra .
113. The two scenarios involve: (1) an undercount of 5.8 percent of households containing at least one noncitizen, and (2) using the same starting point but assuming 86.63 percent of these households are ultimately counted successfully through NRFU efforts. Id. ¶ 36.
114. Dr. Reamer calculated the specific financial impact of these projections on three of the 18 state-share programs-Title I grants to local educational agencies, the Supplemental Nutrition Program for Women, Infants, and Children grants, and *995 Social Services Block Grants-to illustrate certain losses that would occur in the event of a differential undercount. Id. ¶¶ 17, 20, 33, 37-40, 43-48, 52-53, 57-63; Tr. 667:8-19 (Reamer).
115. Under either undercount scenario, California, among other states, would lose funding annually under all three programs. Reamer Decl. ¶¶ 49-50, 54-55, 64-65, and accompanying charts.
116. Dr. Reamer's conclusion that a differential undercount will result in lost funding extends to the other 15 state-share programs he identified, meaning that California, among other states, will lose population share and thus funding under these programs if the citizenship question causes an undercount of individuals living in households containing noncitizens. Id. ¶ 34; Tr. 678:18-679:2 (Reamer).
117. Dr. Reamer also opined that the magnitude of the impact varies depending on the extent of the undercount. Id. ¶¶ 15-18. A change in the amount of the differential undercount would impact only the magnitude of the loss to a state-share program, not the existence of a loss. Id. ¶ 20.
118. Similarly, a change in the funding level or allocation formula would impact only the magnitude of the loss, not the existence of a loss, so long as the allocation formula retains a degree of state-share-based calculation. Id. ¶ 19; Tr. at 669:24-670:11, 675:19-22 (Reamer).
119. Therefore, because the inclusion of the citizenship question on the 2020 Census is likely to result in a significant differential undercount of households containing noncitizens, the State of California is more likely than not to lose funding for its state-share programs. Reamer Decl. ¶¶ 20, 74; Tr. at 676:1-2, 677:6-14 (Reamer).
ii. LAUSD
120. The citizenship question will also cause the Los Angeles Unified School District ("LAUSD") to lose federal funding. The funding for certain federal assistance programs is distributed among localities within the state according to formulas prescribed by law. Tr. at 677:23-678:10 (Reamer). For example, Title I grants are ultimately distributed to local educational agencies, and grants authorized by the Workforce Innovation and Opportunity Act (WIOA) are distributed to Local Workforce Development ("LWD") areas. Reamer Decl. ¶¶ 66, 67; see also id. ¶¶ 45, 71 (WIC and Community Development Block Grants); Tr. 677:15-22, 678:11-13 (Reamer) (Community Development Block Grants and WIOA grants).
121. Where there is a differential undercount of noncitizens within the locality that is a funding recipient of a state-share program relative to the national population, those localities will experience a loss of federal funding. Tr. 677:23-678:10 (Reamer).
122. For example, LAUSD, which has a higher-than average share of households containing noncitizens than the state and national population, would incur a further decrease in Title I funding when the funding received by California is distributed among the local educational agencies within the state. Reamer Decl. ¶ 66 n.2; Escudero Decl. ¶¶ 16, 27; Ryback Decl. ¶ 33.
b. San Jose Plaintiffs
123. Among the 18 "state share" programs discussed in paragraph 109, supra , are grants authorized under WIOA, including the Youth Activities Program, 29 U.S.C. § 3163 , the Adult Activities program, 29 U.S.C. § 3173 (b)(2)(A), and the Dislocated Workers Program, 29 U.S.C. § 3173 (b)(2)(B). Reamer Decl. ¶ 67; Tr. at 677:19-22; 678:11-13. Also among the 18 "state share" programs are grants distributed via the Community Development *996 Block Grant ("CDBG") Entitlement Program. Reamer Decl. ¶ 71; Tr. at 677:15-18.
124. Under WIOA, San Jose operates a workforce development program called "work2future" that serves a LWD area composed of the cities of San Jose, Campbell, Morgan Hill, Los Altos Hills, Gilroy, Los Gatos, Saratoga, and Monte Sereno, along with the unincorporated areas of Santa Clara County. Melchor Aff. ¶ 2.
125. The cities that comprise work2future's LWD have a combined population of 1,243,043 residents, of whom at least 197,663, or 16.00%, are noncitizens. Judicially Noticed Facts ¶ 14.
126. Of the 321,004,407 residents of the United States, 22,337,765, or 6.96%, are noncitizens. Judicially Noticed Facts ¶ 5. 11
127. Of the 38,982,847 residents of California, 5,250,604, or 13.47%, are noncitizens. Judicially Noticed Facts ¶ 6.
128. Among the funding programs that use Bureau data are programs administered by the Department of Labor under WIOA, which use Bureau data as part of the allocation formulas set forth in 29 U.S.C. §§ 3162 (C) and § 3172(C). UF 56. WIOA provides funding to work2future under a two-part formula: first funding is delivered to a state (the "State Allotment") and the State of California distributes the State Allotment among the LWD's (the "Sub-State Allotment"). Melchor Aff. ¶ 5.
129. Based on his calculations regarding the three example programs, and the fact that WIOA is one of the 18 "state share" programs he identified, Dr. Reamer concluded with a high degree of certainty that California's State Allotment under WIOA will be lower under each of the scenarios set forth by Dr. Fraga because California's percentage of noncitizens is higher than the national average. Reamer Decl. ¶ 68.
130. Monique Melchor, Director of work2future, Workforce Development Board, Office of Economic Development for the City of San Jose, is tasked with ensuring that the program operates in compliance with federal law and regulations and to ensure that it is properly funded. As part of her duties, she regularly uses the WIOA formula for calculating the Sub-State Allotment for work2future's LWD to ensure it was properly delivered. Melchor Aff. ¶¶ 5, 8. Melchor uses publicly available Bureau data to make these calculations, which are based on the LWD's relative share of the total unemployed, the relative share of the excess unemployed, and the local area's share of disadvantaged adults or youth. Id. ¶ 10 .
131. Because the LWD, mainly including San Jose, has a higher percentage of noncitizens than California as a whole, a differential undercount of noncitizens, according to Dr. Barreto, will "be particularly severe in San Jose and other plaintiffs' jurisdictions." Trial Tr. 375:6-7; Judicially Noticed Facts ¶ 14.
132. If the population of the LWD (including its disadvantaged adults and disadvantaged youth) is undercounted relative to the State of California, then the LWD's share of the Sub-State Allocation will decrease. Melchor Decl. ¶¶ 12-13.
133. Therefore, if there is a differential undercount of noncitizens in the 2020 Census, California will receive a lower State Share of WIOA funding, and the work2future LWD, which includes San Jose, will receive a smaller proportion of the State Share in its Sub-State Allocation, resulting *997 in a double funding loss for the City of San Jose.
134. The CDBG program, administered by the U.S. Department of Housing and Urban Development ("HUD"), provides funding to eligible "entitlement communities" including the City of San Jose. Reamer Decl. ¶ 71; Judicially Noticed Facts ¶ 16. One of the programs that uses Bureau data is the Home Investment Partnership Program ("HOME"), run by HUD, which uses Bureau data as part of its allocation formula under 42 U.S.C. § 12747 (b). UF 54.
135. The statutory formula for HOME grants is required to reflect "each jurisdiction's share of total need among eligible jurisdiction[s] for an increased supply of affordable housing for very low-income and low-income families of different size, as identified by objective measures of inadequate housing supply, substandard housing, the number of low-income families in housing likely to be in need of rehabilitation, the costs of producing housing, poverty, and the relative fiscal incapacity of the jurisdiction to carry out housing activities eligible under section 12742 of this title without Federal assistance. Allocation among units of general local government shall take into account the housing needs of metropolitan cities, urban counties, and approved consortia of units of general local government." 42 U.S.C. § 12747 (b)(1)(A).
136. One of the programs that uses Bureau data is the CDBG, run by HUD, which uses Bureau data as part of its allocation formula under 42 U.S.C. § 5306 (b). UF 55. This program provides funds to entitlement communities according to a set of formulas prescribed in law and that include data on population, poverty rates, and housing conditions. Reamer Decl. ¶ 71.
137. The statutory formula for CDBG grants considers "the average of the ratios between the population of that city and the population of all metropolitan areas; the extent of poverty in that city and the extent of poverty in all metropolitan areas; and the extent of housing overcrowding in that city and the extent of housing overcrowding in all metropolitan areas." 42 U.S.C. § 5306 (b)(1)(A).
138. HUD awards the City of San Jose an annual allocation of CDBG and HOME funding; the amount of this funding is directly tied to data from the Census. Clements Aff. ¶ 10.
139. Of San Jose's 1,023,031 residents, 176,345, or 17.24%, are noncitizens. Judicially Noticed Facts ¶ 11. Thus, San Jose's percentage of noncitizens is nearly two-and-a-half times the national percentage of 6.96%. It follows that San Jose is likely to be undercounted relative to the population as a whole if the citizenship question is added to the Decennial Census. Tr. 546:6-17 (Barreto).
140. Because CDBG is one of the 18 programs that Dr. Reamer identified as sensitive to changes in population, and because Dr. Reamer concluded that any such program would provide less funding to geographic areas that are undercounted relative to the population as a whole, San Jose will receive less CDBG funding if is undercounted relative to the nation as a whole. Reamer Decl. ¶ 18; Tr. at 677:7-14. Therefore, it is more likely than not that San Jose will receive less CDBG funding if a citizenship question is added to the Census.
141. San Jose's Office of Emergency Management ("OEM") also faces a substantial risk of losing funding based on the addition of the citizenship question.
142. In his role as Director of OEM, and in prior positions, Raymond Riordan has applied for funding on behalf of San Jose *998 from the Federal Emergency Management Agency ("FEMA"). Supp. Riordan Aff. ¶ 2.
143. When applying for funding from FEMA, Riordan completes a "Preliminary Damage Assessment" in accordance with FEMA guidelines as provided in its Damage Assessment Operations Manual and its Preliminary Damage Assessment for Individual Assistance Operations Manual. These manuals require Riordan to supply census data for areas affected by a disaster. Id. ¶¶ 4-5 .
144. Riordan has personally worked on funding proposals to FEMA that were denied because FEMA determined not enough people lived in the affected area to qualify for funding. Id. ¶¶ 7-10 . Because the total number of individuals affected by a disaster is a key factor in most applications for disaster funding, and because Riordan provides this number based on data from the Census Bureau, a net undercount of San Jose's population will impede the City of San Jose's ability to obtain adequate funding when the next disaster occurs. Id. ¶ 14 . Indeed, San Jose is in a region prone to natural disasters, including earthquakes, floods, and fires. Id. ¶ 13 .
6. Inclusion of the Citizenship Question on the 2020 Census Increases the Likelihood that California Will Lose Political Representation
145. Adding a citizenship question to the 2020 Census significantly increases the likelihood that California will lose at least one congressional seat. Dr. Bernard Fraga credibly testified that (1) California is expected to maintain its current level of congressional representation (53 seats) if the 2020 Census does not ask a citizenship question, and (2) adding a citizenship question to the 2020 Census increases the probability that California will, contrary to its actual population, lose a congressional seat.
146. To estimate the quantitative effect of adding a citizenship question to the 2020 Census, Dr. Fraga looked at four scenarios of nonresponse and NRFU-two based on Dr. Barreto's survey data, and two based on Census Bureau data. Id. ¶ 26 . For each scenario, Dr. Fraga estimated how much of each state's population would not be counted in the 2020 Census because of the citizenship question. Id. ¶¶ 57, 58 .
147. Dr. Fraga estimated that, based on Dr. Barreto's survey data and assuming NRFU will not remediate the differential in self-response rates (Scenario A), the citizenship question would cause 12.51 percent of Californians not to be reported in the census self-response. Id. ¶¶ 57-58 .
148. Dr. Fraga performed the same calculation based on the Census Bureau's estimate of a decline in nonresponse by 5.8 percent for noncitizen households-again assuming NRFU will not have a mitigating affect (Scenario C). Id. ¶¶ 57, 60 . Based on this estimate, the citizenship question would cause 1.68 percent of Californians not to be reported in the census self-response. Because California has a higher proportion of noncitizens than any other state, this was also the highest proportional undercount of all the states. Id. ¶¶ 57, 65 . Using either the survey results or the Census Bureau's estimate, California will always have the highest proportional undercount, as long as the Census Bureau's follow-up efforts are anything less than 100 percent effective. Id. ¶ 65 .
149. Dr. Fraga used these different undercount estimates to quantify the impact of adding a citizenship question on congressional apportionment, including the probability that apportionment would be affected by the question. Id. ¶ 66 . In the baseline scenario with no citizenship question, California is projected to keep its current 53 seats in the House of Representatives.
*999 Id. ¶ 75 . Based on Dr. Barreto's estimated self-response rates, however, Dr. Fraga estimates that California is virtually certain to lose three seats if the citizenship question is included in the census, assuming the NRFU process does not mitigate the effects of this differential (Scenario A). Id. ¶¶ 73-74, 76 . 12
150. Dr. Fraga also concluded that, using the Census Bureau's 5.8 percent estimate of nonresponse by noncitizen households and assuming NRFU has no effect on the net differential undercount, the likelihood of California losing at least one seat nearly doubles to fifty percent probability (Scenario C). Id. ¶ 82 . Even applying a NRFU success rate of 86.63%, Dr. Fraga testified that the likelihood of California losing at least one seat still increases by 15 percent (Scenario D). Id. ¶¶ 48, 82 . The 86.63% NRFU success rate derives from Dr. O'Muircheartaigh's report and reflects the 2016 in person follow-up response rate during the 2016 ACS in census tracts with a higher than average share of noncitizen households. Id. ¶ 49 .
7. Plaintiffs Have Had to Appropriate Funds to Mitigate the Harm of the Inclusion of the Citizenship Question on the 2020 Census
a. California Plaintiffs
i. State of California
151. The State of California has appropriated and will imminently spend increased funds on census-related community outreach due to the citizenship question. Former California Governor Jerry Brown initially proposed to the California Legislature for the FY 2018-19 state budget an appropriation of $ 40.3 million "to be spent over a three-year period for statewide outreach and other activities related to the 2020 Census count." UF 111. This budget proposal was made prior to Secretary Ross' issuance of the Decision Memo announcing the addition of the citizenship question. See PTX-502 at 3.
152. The final FY 2018-19 state budget that was enacted in the summer of 2018 included an appropriation of $ 90.3 million "to support the California Complete Count effort, which was established within the Government Operations Agency to perform outreach focusing on hard-to-count populations for the decennial census." UF 112.
153. Early on in the budget process, before Secretary Ross issued the Decision Memo, the Legislative Analyst's Office published an analysis of the census outreach budget item. PTX-502. The analysis observed that the potential introduction of a citizenship question to the 2020 Census could cause an undercount. Id. at 2-5 (noting that changes to the census, including "the potential for a question about citizenship[,] raise the possibility of an undercount in California in 2020").
154. This concern was echoed in legislative committee materials and at least one committee hearing. The legislative history of the FY 2018-19 state budget shows that one of the driving forces behind the increased appropriation was the citizenship question. PTX-504 at 140 (summary of FY 2018-19 state budget includes section devoted to census outreach to hard-to-count residents, and states that "[t]he Budget includes $ 90.3 million for statewide outreach and other efforts related to increasing the participation rate of Californians in the decennial census"); PTX-505 at 1 (description of FY 2018-19 state budget line *1000 items references as a "major change" the $ 90.3 million allocated to "support the California Complete Count effort...to perform outreach focusing on hard-to-count populations for the decennial census"); PTX-506 at 8, 76 (Legislative Analyst's overview of FY 2018-19 state budget includes section describing $ 90.3 million allocated for outreach activities); PTX-509 at 23 (March 15, 2018 Senate Budget and Fiscal Review Subcommittee meeting staff report on the California Complete Count-Census 2020 agenda item notes that concerns about emphasis on Internet self-response, "in combination with the potential for a question about citizenship[,] raise the possibility of an undercount in California in 2020"); PTX-510 at 41-44 (April 24, 2018 Assembly Budget Subcommittee meeting staff report on 2020 Census Outreach agenda item states that one change to the 2020 Census is that "[t]he federal government has decided to include a citizenship question in the census, which is projected to reduce the rate of response," and identifies the citizenship question as one of the challenges that would justify "additional resources" for outreach); PTX-517 at 45:19-46:12 (statement by Assembly-member David Chiu at the April 24, 2018 Assembly Budget Subcommittee meeting that the citizenship question presents "a different world" that may justify doubling census outreach expenditures); PTX-512 at 24 (May 22, 2018 Senate Committee on Budget and Fiscal Review meeting staff report on California Complete Count-Census 2020 agenda item notes that "[d]ue to the significant changes to the census, providing state funding to target hard-to-count populations is reasonable," and "[d]ue to both the extreme importance of an accurate census to the state and the high cost of the necessary outreach, additional funding is warranted"); PTX-513 at 30-31 (May 24, 2018 Assembly Budget Subcommittee meeting staff report on the 2020 Census Outreach Funding agenda item proposed $ 113 million increase in census outreach funding, including $ 12 million for Los Angeles County's complete count efforts); PTX-514 at 79 (June 6, 2018 2018-19 Legislative Budget Conference Committee meeting staff report on 2020 Census Outreach cites $ 153.3 million request from Assembly and $ 135.3 million request from the Senate for outreach efforts); PTX-515 at 173 (June 8, 2018-19 Legislative Budget Conference Committee meeting staff report on 2020 Census Outreach recommends adopting compromise of $ 90.3 million allocation for census outreach).
155. Since the appropriation, the California Complete Count Committee, the body in charge of the outreach efforts, has submitted reports to the Governor and Legislature that underscore the challenge presented by the citizenship question to those outreach efforts. PTX-508 at 4-5, 13, 19, 27-28 (October 2, 2018 report to Governor acknowledges that citizenship question presents challenge to outreach efforts, describes formation of working group on citizenship matters, observes that the question will generate fear, and identifies possible difficulties of hiring trusted messengers); PTX-507 at 9-10 (October 1, 2018 report to Legislature states that in convenings with local partners, "[p]articipants identified the most significant barrier to achieving a complete count to be the Census citizenship question and the current political environment regarding immigrants").
156. The State's allocation of outreach funding to the County of Los Angeles also confirms increased expenditures due to the citizenship question. Baron Decl. ¶¶ 7-16. The State initially allocated to the County $ 8.7 million in census outreach funding. Id. ¶ 7, 12 . In May 2018, the County requested an additional $ 3.3 million in funding *1001 specifically due to the addition of the citizenship question on the Census. Id. ¶¶ 11-12 & Ex. A. The State met the County's request, in part. In November 2018, the State announced its County outreach allocations, allocating $ 9,393,090 to the County of Los Angeles for 2020 Census outreach to hard-to-count populations. UF 113; Baron Decl. ¶¶ 13-15.
b. San Jose Plaintiffs
i. City of San Jose
157. San Jose's population has been undercounted in prior censuses and San Jose is taking steps to mitigate the likely undercount of its population which will be caused by the inclusion of a citizenship question on the 2020 Census. Ruster Aff. ¶¶ 4, 11-19. San Jose, along with other cities, has partnered with the County of Santa Clara to form a "Complete Count Committee" to encourage participation in the Census by hard-to-count communities. Id. ¶ 3, 8 . Such partnerships among localities are encouraged by the Bureau to ensure an accurate and complete count. Tr. 799:23-800:14 (Abowd). In fact, San Jose's preparations for the Census are being conducted in concert with the Bureau's integrated partnership and communication program. Id. ¶¶ 3-5, 11 .
158. San Jose has dedicated approximately $ 300,000 in resources towards performing outreach and expects to allocate approximately $ 300,000 more before the Census is conducted. Id. ¶¶ 13, 15 . San Jose has dedicated staff resources, including Jeff Ruster, the Assistant Director in the Office of Economic Development, and a full-time consultant, to prepare for the Census. Id. ¶¶ 3, 14, 19 .
159. Consistent with recommendations from the Census Bureau and the Department of Commerce, these preparations include targeted outreach that is being performed specifically because Secretary Ross has decided to add a citizenship question to the Census. Id. ¶¶ 10-11, 16 ; Tr. at 1017:22-1018:17 (Abowd). Indeed, Dr. Abowd agreed that the addition of the citizenship question has made it reasonable for cities to increase their outreach expenditures to encourage participation in the census. Tr. at 979:16-25 (Abowd).
160. The targeted outreach being conducted by San Jose is designed specifically to mitigate the impact that adding the citizenship question to the Census will have on hard-to-reach populations in San Jose. Ruster Aff. ¶¶ 16, 17. This diversion of resources to address the citizenship question will limit San Jose's ability to use its resources to boost participation among other parts of the population. Id. ¶ 19 .
161. In light of the substantial risk posed by the addition of the citizenship question, it is reasonable for San Jose to spend additional time and money on the outreach to address concerns about the addition of the citizenship question. Tr. at 979:16-25 (Abowd).
ii. BAJI
162. BAJI's Executive Director, Opal Tometi has reviewed and received feedback from impacted communities regarding the 2020 Census, formed coalitions with other immigration groups, spoken to members of BAJI, and participated in a number of events, panels, and town halls where concerns about the addition of a citizenship question to the 2020 Census were raised. Additionally, Tometi has worked with Black immigrant, refugee, and African American communities since 2010 and is familiar with the ways in which the census count affects the well-being of these communities. Tometi Aff. ¶ 3.
163. To ensure that BAJI's members are properly counted in the 2020 Census, BAJI plans to conduct additional outreach to these communities to encourage them to *1002 participate in the 2020 Census questionnaire. Supp. Tometi Aff. ¶ 4. BAJI has determined that, due to the citizenship question, such outreach will require the expenditure of additional resources including money, staff time, and operational expenses. Id. To date, BAJI has expended considerable staff time educating constituents, and other community members, about the addition of a citizenship question to the Census. Tometi Decl. ¶ 20 (reaffirmed in Tometi Aff. ¶ 2).
164. Given the nature of the census taking process, BAJI is reserving the majority of the expenditure it will use to address the addition of the citizenship question-resources that will likely be diverted from its other essential services-for its efforts to bolster census participation among its members and other underrepresented minority communities who are fearful about responding to the citizenship question. Id. (reaffirmed in Tometi Aff. ¶ 2). Accordingly, BAJI expects to allocate at least an additional $ 200,000 in the next two years to addressing the addition of a citizenship question to the Census and attempting to mitigate its harmful effects. Id. (reaffirmed in Tometi Aff. ¶ 2).
165. BAJI has taken these actions because an undercount of noncitizens would disproportionately affect BAJI members in that BAJI's membership has a high proportion of immigrants who live in immigrant-rich metropolitan areas. Id. ¶¶ 9-10 (reaffirmed in Tometi Aff. ¶ 2). The impact of the addition of a citizenship question to the Census, and BAJI's diversion of its resources to address the same, has therefore impaired BAJI's ability to carry out its mission of fostering racial, economic, and social equality for Black immigrants and other historically underrepresented communities. Id. ¶ 19 (reaffirmed in Tometi Aff. ¶ 2).
C. Conclusions of Law Related to Standing
The California Plaintiffs and the San Jose Plaintiffs ultimately succeed in establishing standing with respect to the APA and the Enumeration Clause Claims. 13 Once the Court determines that at least one of the San Jose Plaintiffs and one of the California Plaintiffs has standing, it need not consider the standing of the remaining parties. See Leonard v. Clark , 12 F.3d 885 , 888 (9th Cir. 1994) ("The general rule applicable to federal court suits with multiple plaintiffs is that once [a] court determines that one of the plaintiffs has standing, it need not decide the standing of the others"). Here, several plaintiffs across both actions have standing.
1. Injury-in-Fact
To establish injury-in-fact, a plaintiff must demonstrate it "has sustained or is immediately in danger of sustaining a direct injury" as a result of the challenged action. Spokeo , 136 S.Ct. at 1552 (Thomas, J., concurring) (quoting Ex parte Levitt , 302 U.S. 633 , 634, 58 S.Ct. 1 , 82 L.Ed. 493 (1937) (per curiam) ). The injury or threat of injury must be "concrete and particularized" rather than conjectural or hypothetical. Lujan , 504 U.S. at 560 , 112 S.Ct. 2130 . Thus, where standing is based upon an alleged future injury, the plaintiff must demonstrate either that the harm is certainly impending, or that there *1003 is a substantial risk the harm will occur. Susan B. Anthony List v. Driehaus , 573 U.S. 149 , 158, 134 S.Ct. 2334 , 189 L.Ed.2d 246 (2014). Injury-in-fact also exists where there is a "substantial risk" that harm will occur, which prompts plaintiffs reasonably to incur costs to mitigate or avoid that harm. Clapper v. Amnesty Int'l USA , 568 U.S. 398 , 414 n.5, 133 S.Ct. 1138 , 185 L.Ed.2d 264 (2013).
"For standing purposes, a loss of even a small amount of money is ordinarily an 'injury.' " Czyzewski v. Jevic Holding Corp. , --- U.S. ----, 137 S.Ct. 973 , 983, 197 L.Ed.2d 398 (2017) ; see also Carpenters Indus. Council v. Zinke , 854 F.3d 1 , 5 (D.C. Cir. 2017) ("A dollar of economic harm is still an injury-in-fact for standing purposes."); Council of Ins. Agents & Brokers v. Molasky-Arman , 522 F.3d 925 , 932 (9th Cir. 2008) (noting that Supreme Court has found injury-in-fact even where magnitude of harm was only a few dollars).
The evidence establishes that Plaintiffs will be injured in at least three ways. These injuries include, (1) the loss of federal funding, (2) an increased risk of losing political representation, and (3) the expenditure of funds for census outreach to mitigate the substantial risk of harm flowing from the citizenship question.
a. Loss of Federal Funding
A plaintiff who is likely to lose federal funding due to a differential undercount of the population has suffered an injury-in-fact for the purposes of Article III standing. Carey v. Klutznick , 637 F.2d 834 , 838 (2d Cir. 1980) ; City of Detroit v. Franklin , 4 F.3d 1367 , 1373-1375 (6th Cir. 1993) (standing established where "census undercount will result in a loss of federal funds" to plaintiffs' city). Lost federal funding, no matter the magnitude, qualifies as an injury-in-fact. Czyzewski , 137 S.Ct. at 983 .
A significant portion of federal domestic financial assistance is distributed based on census-derived data, including from 24 large federal financial assistance programs with geographic allocation formulas that rely in whole or in part on census-derived data. If, as Plaintiffs have shown, there is any measurable differential undercount of households containing noncitizens, California will lose federal funding, because California has a larger proportion of noncitizens relative to other states.
Similarly, some federal domestic financial assistance that is based on census-derived data is distributed among localities within the state. If, as Plaintiffs have shown, there is any measurable differential undercount of households containing noncitizens, LAUSD and San Jose will also lose federal funding, because these localities have a larger proportion of noncitizens relative to other localities. Having shown a "substantial risk" that the citizenship question will cause them to lose federal funding, the State of California and LAUSD (of the California Plaintiffs), and the City of San Jose (of the San Jose Plaintiffs) have each established injury-in-fact. See Susan B. Anthony List , 573 U.S. at 158 , 134 S.Ct. 2334 .
b. Loss of Political Representation (State of California Only)
A plaintiff's "expected loss of a Representative to the United States Congress undoubtedly satisfies the injury-in-fact requirement of Article III standing." Dep't of Commerce v. U.S. House of Representatives , 525 U.S. 316 , 331-332, 119 S.Ct. 765 , 142 L.Ed.2d 797 (1999) ; Carey , 637 F.2d at 838 (holding that a disproportionate undercount resulting in the loss of congressional representation confers standing); City of New York v. U.S. Dep't of Commerce , 713 F.Supp. 48 , 50 (E.D.N.Y. 1989) (holding that a likely undercount *1004 of populations disproportionately represented in plaintiff states conferred standing).
The California Plaintiffs have shown that adding a citizenship question to the 2020 Census will cause a differential undercount of the State of California's population relative to other states, creating a substantial risk that California will lose its fair share of political representation in Congress, and by extension, the Electoral College. Even using the most conservative data and assumptions (Scenario D), Dr. Fraga concluded that the addition of the citizenship question would increase the likelihood by 15 percent that California will lose a congressional seat. See Part III.B.6.
This estimate is conservative. As previously discussed, Scenario D is based on the Census Bureau's estimate that the self-response rate in noncitizen households will decline by 5.8 percent relative to all-citizen households. The Census Bureau has acknowledged, and the Plaintiff experts agree, that this is a conservative estimate. Accordingly, it is safe to conclude that the true differential decline in self-response rates will in fact be higher than 5.8 percent. Furthermore, the Census Bureau's NRFU efforts are unlikely to mitigate this differential decline in self-response rates. See Part III.B.2, supra .
In light of the considerable evidence in the record that the Census Bureau's NRFU will be differentially less effective in counting noncitizens and Latinos and therefore will not significantly mitigate the effects of the citizenship question, Dr. Fraga's estimates under Scenario C are the most probative. Under Scenario C, Dr. Fraga once again adopted the Census Bureau's conservative estimate that the differential decline in self-response rates for noncitizen households relative to all-citizen households will be 5.8 percent. Unlike Scenario D, however, Scenario C relies upon the assumption that the Census Bureau's NRFU processes will not remediate the differential in self-response rate caused by the citizenship question.
Under this scenario, the likelihood that the state will lose a congressional seat nearly doubles from 26.1 percent to a 49.9 percent, creating a near 50-50 chance that California will lose representation. Fraga Aff. ¶¶ 81-82. This evidence establishes that California faces a substantial risk of losing at least one seat as a result of the citizenship question. Such malapportionment of the State of California's congressional representation is a "threat of vote dilution" that "is 'concrete' and 'actual or imminent, not conjectural or hypothetical." Dep't of Commerce , 525 U.S. at 332 , 119 S.Ct. 765 (quoting Whitmore v. Arkansas , 495 U.S. 149 , 155, 110 S.Ct. 1717 , 109 L.Ed.2d 135 (1990).
c. Expenditure of Funds to Mitigate Harm
i. The California Plaintiffs
The State of California has reasonably increased its expenditures on census outreach to attempt to mitigate the decline in self-response rates and the resulting differential undercount of Plaintiffs' residents caused by the citizenship question. These additional expenditures, which constitute a direct injury to the State of California, are sufficient to establish injury-in-fact for standing purposes. Clapper , 568 U.S. at 414 n.5, 133 S.Ct. 1138 (standing may be based on "reasonably incur[red] costs to mitigate or avoid" a "substantial risk" of harm); Monsanto Co. v. Geertson Seed Farms , 561 U.S. 139 , 153-155, 130 S.Ct. 2743 , 177 L.Ed.2d 461 (2010) (finding injury-in-fact where alfalfa growers increased administrative costs to minimize likelihood of potential contamination of their crops from genetically-altered alfalfa plant).
*1005 The California Plaintiffs' expenditures were reasonably incurred because they face a substantial risk of a differential undercount of their residents. These plaintiffs have proven that the citizenship question will cause them to be differentially undercounted because they have a disproportionate share of noncitizens, immigrants, and Latino residents and that this differential undercount will cause them to lose federal funding and create a substantial risk that the State of California will lose political representation.
The legislative history of California's FY 2018-19 state budget and follow-up reports to the Governor and Legislature show that the State appropriated, and the California Plaintiffs are spending, additional funds on census outreach to attempt to mitigate these negative impacts caused by the citizenship question. Although it is not possible to pinpoint precisely how much the citizenship question drove the increase in the state budget's census outreach line item, the California Plaintiffs have shown that the Legislature's decision to boost the Governor's initial allocation for census outreach ($ 40.3 million) to a higher allocation in the enacted budget ($ 90.3 million) is due at least in part to the citizenship question. UF 111-112.
The California Plaintiffs also provided evidence that the citizenship question prompted the County of Los Angeles to request $ 3.3 million in additional funds to meet the County's need for funding for census outreach to the hard-to-count populations most likely not to respond to the 2020 Census because of the citizenship question. The State partially met this request by allocating hundreds of thousands of dollars of additional funding to the County for census outreach. Because any amount of costs incurred to mitigate harm is sufficient to confer standing, as long as such costs were reasonably incurred, the State of California's expenditures on census outreach constitute a direct injury to the state's budgets and resources that is sufficient to establish injury-in-fact for standing purposes.
ii. The San Jose Plaintiffs
The City of San Jose has also spent, and will continue to spend, additional money on outreach specifically because Secretary Ross directed that a citizenship question be added to the Census. Because there is a substantial risk that adding the citizenship question will cause a net differential undercount of noncitizens, which in turn would cause San Jose to lose federal funding, the City's diversion of resources to prevent that harm is reasonable. Accordingly, the City of San Jose has suffered injury-in-fact based on its additional outreach spending.
Because BAJI has similarly diverted resources to encourage its constituents to participate in the census and to counteract the chilling effects of the citizenship question, it too has suffered an injury-in-fact. An injury-in-fact exists where a nonprofit organization shows "a drain on its resources from both a diversion of its resources and frustration of its mission." Fair Hous. of Marin v. Combs , 285 F.3d 899 , 905 (9th Cir. 2002) ; Havens Realty Corp. v. Coleman , 455 U.S. 363 , 378-380, 102 S.Ct. 1114 , 71 L.Ed.2d 214 (1982).
BAJI's Executive Director, Opal Tometi, testifies that BAJI has already expended additional staff time and related financial resources to educate its constituents about the addition of a citizenship question to the Census and encourage participation. BAJI intends to spend an additional $ 200,000 to counteract the chilling effect of the citizenship question on its members. BAJI's membership has a high proportion of immigrants and is concentrated in immigrant-rich metropolitan areas. Accordingly, an undercount of immigrant populations, *1006 and any resulting loss of funding or political representation, would impair BAJI's ability to carry out its mission of fostering racial, economic, and social equality for Black immigrants and other historically underrepresented communities. In sum, BAJI's diversion of resources to mitigate the negative impact of the citizenship question on its organizational mission qualifies as an injury in fact. 14
2. Traceability
The second standing element requires a plaintiff to demonstrate that the injury is "fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court." Mendia v. Garcia , 768 F.3d 1009 , 1012 (9th Cir. 2014) (quoting Bennett v. Spear , 520 U.S. 154 , 167, 117 S.Ct. 1154 , 137 L.Ed.2d 281 (1997) ). This requirement is less demanding than a proximate cause standard. Lexmark Intern., Inc. v. Static Control Components, Inc. , 572 U.S. 118 , 134 n.6, 134 S.Ct. 1377 , 188 L.Ed.2d 392 (2014) ("Proximate causation is not a requirement of Article III standing, which requires only that the plaintiff's injury be fairly traceable to the defendant's conduct."). Indeed, "[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 , 768 F.3d at 1012 . When harm is caused by multiple actions, "what matters is not the length of the chain of causation, but rather the plausibility of the links that comprise the chain." Id. at 1012-13 (quotation and citation omitted).
While an injury is not fairly traceable it if is " 'th[e] result [of] the independent action of some third party not before the court,'...that does not exclude injury produced by determinative or coercive effect upon the action of someone else." Bennett , 520 U.S. at 169 , 117 S.Ct. 1154 (emphasis in original) (quoting Lujan , 504 U.S. at 560 , 112 S.Ct. 2130 ). The key question is whether the "government's unlawful conduct is at least a substantial factor motivating the third parties' actions." Mendia , 768 F.3d at 1013 (citations and quotations omitted). Even when some links in the chain of causation are illegal acts by third parties, the injury may still be "fairly traceable" to the original challenged action. See Attias v. Carefirst, Inc. , 865 F.3d 620 , 629 (D.C. Cir. 2017) (harm caused by a data breach is "fairly traceable" to company's inadequate security standards even though data was stolen by third party hackers).
Plaintiffs have established that there will be a drop in self-response to the 2020 Census caused by the addition of the citizenship question. That nonrespondents have a legal duty to respond to the census does not alter this conclusion because the citizenship question is a "substantial factor" contributing to the nonresponse. Mendia , 768 F.3d at 1013 . The Bureau and its top officials have concretely affirmed the predictable impact of adding a citizenship question to the 2020 Census on self-response rates. The harms Plaintiffs will suffer-namely the loss of federal funding, the risk to California of losing political representation, and the expenditure of resources to mitigate these harms-inevitably *1007 flow from the disproportionate undercount of particular demographic groups that is likely to result from Secretary Ross's decision to include the citizenship question on the 2020 Census.
Defendants argue that any differential decline in self-response rates among noncitizens and Latinos is attributable to the hostile macro-environment surrounding issues of immigration, and that Plaintiffs fail to show that the citizenship question in particular caused this decline. Dr. Barreto testified persuasively, however, that a hostile macro-environment combined with the inclusion of sensitive questions on a survey can have a cumulative effect that is greater than either of these factors would have on their own. Tr. 386:21-25, 411:5-14 (Barreto). More to the point, both Dr. Barreto's survey and the Census Bureau's natural experiment attempted to isolate the effect of the citizenship question within the same macro-environment. Dr. Barreto's survey asked respondents about their willingness to participate in the 2020 Census both with and without the citizenship question. Tr. 568:5-569:1. The Census Bureau's natural experiment, and subsequent statistical analysis, compared response rates to the 2010 Census (no citizenship question) to those of the 2010 ACS (which included a citizenship question). PTX-103 at 6-7; PTX-148 at 6-7. Accordingly, the differential decline in response rates found in these experiments cannot be exclusively attributed to the current macro-environment surrounding immigration.
In sum, the injuries Plaintiffs have identified are fairly traceable to the Secretary's decision to include the citizenship question in the 2020 Census.
3. Redressability
Finally, to meet the third standing requirement, Plaintiffs must show that it is likely that a favorable decision will redress their injuries. Lujan , 504 U.S. at 561 , 112 S.Ct. 2130 . 48. A plaintiff need show only that " an injury" be redressed by a favorable decision. Larson v. Valente , 456 U.S. 228 , 243 n.5, 102 S.Ct. 1673 , 72 L.Ed.2d 33 (1982) (emphasis in original). A plaintiff "need not show that a favorable decision will relieve [ ] every injury." Id. (emphasis in original). A favorable decision vacating or enjoining the decision to add a citizenship question to the 2020 Census would redress Plaintiffs' injuries by diminishing the funds that they would need to be expended on census outreach and by ensuring that Plaintiffs do not lose federal funding or, in the case of California, political representation because of the citizenship question.
In sum, both the San Jose Plaintiffs and the California Plaintiffs have carried the burden of establishing all three of the standing requirements.
IV. APA CLAIM
A. Legal Standard
Under section 706 of the APA, a reviewing court must "hold unlawful and set aside agency action, findings, and conclusions found to be...arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; [or] without observance of procedure required by law." 5 U.S.C. § 706 (2)(A)-(D). Accordingly, the decision-making process that ultimately leads to the agency action must be "logical and rational." Allentown Mack Sales & Serv., Inc. v. NLRB , 522 U.S. 359 , 374, 118 S.Ct. 818 , 139 L.Ed.2d 797 (1998). Courts should be careful, however, not to substitute their own judgment for that of the agency.
*1008 Suffolk Cty. v. Sec'y of Interior , 562 F.2d 1368 , 1383 (2d Cir. 1977). Ultimately, a reviewing court may uphold agency action "only on the grounds that the agency invoked when it took the action." Michigan v. EPA , --- U.S. ----, 135 S.Ct. 2699 , 2710, 192 L.Ed.2d 674 (2015). Post hoc rationalizations may not be considered. American Textile Mfrs. Inst., Inc. v. Donovan , 452 U.S. 490 , 539, 101 S.Ct. 2478 , 69 L.Ed.2d 185 (1981).
B. Scope of Review
In evaluating an APA claim, courts "typically" limit their review to the Administrative Record existing at the time of the decision. Sw. Ctr. for Biological Diversity v. U.S. Forest Service , 100 F.3d 1443 , 1450 (9th Cir. 1996) ; accord Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep't of Agric. , 499 F.3d 1108 , 1117 (9th Cir. 2007). "Under limited circumstances, however, extra-record evidence can be admitted and considered." Ranchers Cattlemen , 499 F.3d at 1117 . These exceptions include: (1) when plaintiffs make a showing of agency bad faith, or (2) when the agency failed to consider "all relevant factors" of the decision. Id.
1. Use of Extra-Record Evidence to Evaluate Plaintiffs' Pretext Argument
A court may consider extra-record evidence that is relevant to the reason for an agency action where there has been a strong showing of bad faith or improper behavior by the decision-makers. Public Power Council v. Johnson , 674 F.2d 791 , 795 (9th Cir. 1982) ; Ranchers Cattlemen , 499 F.3d at 1117 . In such circumstances, consideration of extra-record evidence is "necessary to a meaningful judicial

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7252052. Public record. Not legal advice.