Amicus Curiae Brief — Department of Commerce, et al., Petitioners v. United States District Court for the Southern District of New York, et al.

Supreme Court briefDec 21, 2018

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No. 18-557

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In The

Supreme Court of the United States

-----------------------------------------------------------------UNITED STATES DEPARTMENT

OF COMMERCE, ET AL.,

Petitioners,

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF NEW YORK, ET AL.,

Respondents.

-----------------------------------------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Second Circuit

-----------------------------------------------------------------BRIEF OF OKLAHOMA, ARKANSAS, ALABAMA,

FLORIDA, GEORGIA, INDIANA, KANSAS,

LOUISIANA, MICHIGAN, MONTANA, NEBRASKA,

SOUTH CAROLINA, TEXAS, UTAH, AND THE

PEOPLE OF THE STATE OF COLORADO EX REL.

CYNTHIA H. COFFMAN, IN HER OFFICIAL

CAPACITY AS COLORADO ATTORNEY GENERAL

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

-----------------------------------------------------------------LESLIE RUTLEDGE

Attorney General

of Arkansas

NICHOLAS BRONNI

Solicitor General

DYLAN JACOBS

Asst. Solicitor General

ARKANSAS OFFICE OF THE

ATTORNEY GENERAL

323 Center St., Suite 200

Little Rock, AR 72201

MIKE HUNTER

Attorney General

of Oklahoma

MITHUN MANSINGHANI

Solicitor General

Counsel of Record

MICHAEL K. VELCHIK

Asst. Solicitor General

OKLAHOMA OFFICE OF THE

ATTORNEY GENERAL

313 NE Twenty-First St.

Oklahoma City, OK 73105

(405) 522-4392

mithun.mansinghani@oag.ok.gov

[Additional Counsel Listed On Inside Cover]

================================================================

Counsel for Amici

STEVE MARSHALL

Attorney General

of Alabama

JEFF LANDRY

Attorney General

of Louisiana

The People of the State

of Colorado ex rel.

CYNTHIA H. COFFMAN,

In Her Official Capacity

as Colorado Attorney

General

BILL SCHUETTE

Attorney General

of Michigan

PAMELA JO BONDI

Attorney General

of Florida

CHRIS CARR

Attorney General

of Georgia

CURTIS T. HILL, JR.

Attorney General

of Indiana

DEREK SCHMIDT

Attorney General

of Kansas

TIMOTHY C. FOX

Attorney General

of Montana

DOUGLAS J. PETERSON

Attorney General

of Nebraska

ALAN WILSON

Attorney General

of South Carolina

KEN PAXTON

Attorney General

of Texas

SEAN D. REYES

Attorney General

of Utah

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ......................................

TABLE OF AUTHORITIES .................................

iii

INTERESTS OF AMICI CURIAE .......................

SUMMARY OF ARGUMENT ..............................

ARGUMENT ........................................................

Inclusion Of The Citizenship Question On

The 2020 Census Is Not Pretextual, But

Instead Is Justified By Historical Practice

And The Significant Benefits It Provides

To Amici States ..........................................

A. Census Citizenship Questions Are

Historically Commonplace ..................

B. Amici States Will Benefit From Accurate, Granular Citizenship Information When Complying With This

Court’s Decisions Interpreting The

VRA ...................................................... 10

1. ACS data is less accurate than decennial census data ........................ 11

2. ACS data is less granular than decennial census data ........................ 13

3. ACS data is not compatible with

other decennial census data ........... 14

4. ACS data is not authoritative and

subject to manipulation in litigation .................................................. 15

TABLE OF CONTENTS—Continued

Page

C. Including A Citizenship Question Will

Not Have Any Adverse Effect On Participating Residents ............................. 18

1. Census responses could not convey

whether the person responding is

an illegal immigrant ....................... 18

2. The Bureau is prohibited from

sharing census response data with

law enforcement ............................. 19

3. There is no empirical evidence that

asking about citizenship will result

in data suppression ........................ 22

II.

Permitting Deposition Of Secretary Ross

Will Increase Litigation Harassment Of

High-Level State Officials Based On Speculation That Official Actions Were Taken

With Ulterior Motives ............................... 27

A. State Officials Will Likely Suffer Increased Litigation Burdens If Respondents Prevail ................................ 28

B. State Law Provides Helpful Guidance

On The High Hurdles Litigants Must

Clear Before Deposing High-Level Officers .................................................... 32

CONCLUSION..................................................... 35

iii

TABLE OF AUTHORITIES

Page

CASES

A.R. v. Dudek, 12-60460-CIV-ZLOCH/HUNT,

2016 WL 3753706 (S.D. Fla. Apr. 8, 2016) ..............29

Alberto v. Toyota Motor Corp., 796 N.W.2d 490

(Mich. App. 2010) ....................................................32

Alliance for Global Justice v. District of Columbia, A.01-00811(PLF/J), 2005 WL 1799553

(D.D.C. July 29, 2005) .............................................29

Apple Inc. v. Samsung Elecs. Co., 282 F.R.D. 259

(N.D. Cal. 2012) .......................................................31

Baldrige v. Shapiro, 455 U.S. 345 (1982) ............. 18, 20

Benavidez v. Irving Indep. Sch. Dist., 690

F. Supp. 2d 451 (N.D. Tex. 2010) .............................12

Bogan v. City of Boston, 489 F.3d 417 (1st Cir.

2007) ........................................................................30

Butz v. Economou, 438 U.S. 478 (1978) ............ 2, 27, 31

California v. United States, C 05-0328 JSW,

2006 WL 2621647 (N.D. Cal. Sept. 12, 2006) .........29

Carey v. Klutznick, 653 F.2d 732 (2d Cir. 1981) .........20

Celerity, Inc. v. Ultra Clean Holding, Inc., C 054374MMC(JL), 2007 WL 205067 (N.D. Cal.

Jan. 25, 2007) ..........................................................31

Cheney v. U.S. Dist. Court, 542 U.S. 367 (2004)..... 30, 34

Clarke v. State Attorney General’s Office, 138

P.3d 144 (Wash. App. Div. 1 2006)...........................33

TABLE OF AUTHORITIES—Continued

Page

Coleman v. Schwarzenegger, CIV S-90-0520

LKK JFM P, 2008 WL 4300437 (N.D. Cal.

Sept. 15, 2008) ................................................... 29, 31

Crest Infiniti II, LP v. Swinton, 174 P.3d 996

(Okla. 2007) .............................................................33

Crown Cent. Petroleum Corp. v. Garcia, 904

S.W.2d 125 (Tex. 1995) ...................................... 32, 34

Dep’t of Agric. and Cons. Servs. v. Broward Cty.,

810 So.2d 1056 (Fla. 1st DCA 2002) .......................33

Dep’t of Commerce v. U.S. House of Representatives, 525 U.S. 316 (1999) ........................................15

Estate of Levingston v. Cty. of Kern, 320 F.R.D.

520 (E.D. Cal. 2017) ................................................29

Fabela v. City of Farmers Branch, No. 3:10-CV1425-D, 2012 WL 3135545 (N.D. Tex. Aug. 2,

2012) .................................................................. 12, 23

Fed. Trade Com. v. Dilger, 276 F.2d 739 (7th Cir.

1960) ........................................................................21

Federation for American Immigration Reform v.

Klutznick, 486 F. Supp. 564 (D.D.C. 1980)..............24

Flandreau Santee Sioux Tribe v. South Dakota,

CIV. 07-4040, 2011 WL 294450 (D.S.D. Jan.

26, 2011) ..................................................................29

Franklin v. Massachusetts, 505 U.S. 788 (1992) .... 3, 20

Freedom From Religion Found., Inc. v. Abbott,

A-16-CA-00233-SS, 2017 WL 4582804 (W.D.

Tex. Oct. 13, 2017) ............................................. 28, 31

TABLE OF AUTHORITIES—Continued

Page

FTC v. Orton, 175 F. Supp. 77 (S.D.N.Y. 1959)..... 19, 21

Gil v. Cty. of Suffolk, CV 06-1683, 2007 WL

2071701 (E.D.N.Y. July 13, 2007) ...........................30

Harlow v. Fitzgerald, 457 U.S. 800 (1982) .................27

Hernandez v. Tex. Dep’t of Aging & Disability

Servs., A-11-CV-856 LY, 2011 WL 6300852

(W.D. Tex. Dec. 16, 2011) .........................................29

In re FDIC, 58 F.3d 1055 (5th Cir. 1995) ...................27

In re USA, 624 F.3d 1368 (11th Cir. 2010) .................27

In re United States (Kessler), 985 F.2d 510 (11th

Cir. 1993) .................................................................30

Johnson v. Eisentrager, 339 U.S. 763 (1950) ................3

Kyle Eng’g Co. v. Kleppe, 600 F.2d 226 (9th Cir.

1979) ........................................................................27

LaMorte v. Mansfield, 438 F.2d 448 (2d Cir.

1971) ........................................................................20

Lederman v. N.Y. City Dep’t of Parks & Recreation, 731 F.3d 199 (2d Cir. 2013) .............................30

Liberty Mut. Ins. Co. v. Super. Ct. of San Mateo

Cty., 13 Cal. Rptr. 2d 363 (Cal. App. 4th 1992) .......32

Locker v. Encana Oil & Gas (USA), Inc., 1:14-cv00131, ECF No. 97 (D. Wyo. June 14, 2017) ...........29

LULAC v. Perry, 548 U.S. 399 (2006) ................... 10, 11

Luna v. Cty. of Kern, 291 F. Supp. 3d 1088 (E.D.

Cal. 2018).................................................................11

TABLE OF AUTHORITIES—Continued

Page

Marisol A. v. Giuliani, 95 CIV. 10533 (RJW),

1998 WL 132810 (S.D.N.Y. Mar. 23, 1998)..............30

Mo. State Conf. of NAACP v. Ferguson-Florissant

Sch. Dist., 201 F. Supp. 3d 1006 (E.D. Mo.

2016) ........................................................................12

Morales v. Daley, 116 F. Supp. 2d 801 (S.D. Tex.

2000), aff ’d sub nom. Morales v. Evans, 275

F.3d 45 (5th Cir. 2001) ........................................... 1, 7

Morgan v. United States, 298 U.S. 468 (1936) ...........27

Patino v. City of Pasadena, 230 F. Supp. 3d 667

(S.D. Tex. 2017) ........................................................11

Perez v. Perry, No. SA-11-CV-360, 2017 WL

962686 (W.D. Tex. Mar. 10, 2017)............................13

Perez v. Texas, No. 5:11-cv-00360 (W.D. Tex.) .............16

Pope v. Cnty. of Albany, No. 11-CV-0726, 2014

WL 316703 (N.D.N.Y. Jan. 28, 2014) ......................12

Rios-Andino v. Orange Cty., 51 F. Supp. 3d 1215

(M.D. Fla. 2014) .......................................................12

Rodriguez v. Harris Cty., 964 F. Supp. 2d 686

(S.D. Tex. 2013) .................................................. 15, 22

Senate of State of Cal. v. Mosbacher, 968 F.2d

974 (9th Cir. 1992) ...................................................22

Seymour v. Barabba, 559 F.2d 806 (D.C. Cir.

1977) ........................................................................20

Simplex Time Recorder Co. v. Sec’y of Labor, 766

F.2d 575 (D.C. Cir. 1985) .........................................27

vii

TABLE OF AUTHORITIES—Continued

Page

St. Regis Paper Co. v. United States, 368 U.S. 208

(1961) .......................................................................21

State ex rel. Ford Motor Co. v. Messina, 71 S.W.3d

602 (Mo. 2002) .........................................................33

State ex rel. Mass. Mut. Life Ins. Co. v. Sanders,

724 S.E.2d 353 (W. Va. 2012) ..................................32

State v. U.S. Dep’t of Commerce, 315 F. Supp. 3d

766 (S.D.N.Y. 2018) ...................................................1

Stormo v. City of Sioux Falls, 12-CV-04057-KES,

2016 WL 697116 (D.S.D. 2016) ...............................30

Sweeney v. Bond, 669 F.2d 542 (8th Cir. 1982) ..........27

Tafflin v. Levitt, 493 U.S. 455 (1990) ..........................28

Tenney v. Brandhove, 341 U.S. 367 (1951) .................31

Thomas v. Cate, 1:05-cv-01198-LJO-JMD-HC,

2010 WL 1343789 (E.D. Cal. Apr. 5, 2010) .............29

Thornburg v. Gingles, 478 U.S. 30 (1986)...................10

U.S. Bd. of Parole v. Merhige, 487 F.2d 25 (4th

Cir. 1973) .................................................................27

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779

(1995) .........................................................................3

United States v. Bethlehem Steel Corp., 21 F.R.D.

568 (S.D.N.Y. 1958) .................................................21

United States v. Greenberg, 200 F. Supp. 382

(S.D.N.Y. 1961) ........................................................19

viii

TABLE OF AUTHORITIES—Continued

Page

United States v. Int’l Bus. Machs. Corp., 20

Fed. R. Serv. 2d 1082, 1975 WL 905 (S.D.N.Y.

1975) ..................................................................... 21

United States v. Little, 321 F. Supp. 388 (D. Del.

1971) ........................................................................21

United States v. Morgan, 313 U.S. 409 (1941) ...........34

United States v. Moriarity, 106 F. 886

(C.C.S.D.N.Y. 1901)....................................................1

United States v. Village of Port Chester, 704

F. Supp. 2d 411 (S.D.N.Y. 2010) ..............................12

Utah v. Evans, 536 U.S. 452 (2002) ..............................5

Valdespino v. Alamo Heights Indep. Sch. Dist.,

168 F.3d 848 (5th Cir. 1999) ....................................12

Wisconsin v. City of New York, 517 U.S. 1 (1996) .........3

CONSTITUTIONAL PROVISIONS

Mass Const. art. CXII .................................................16

N.Y. Const. art. III, § 5-a .............................................16

Tenn. Const. art. II, §§ 4-6 ..........................................16

STATUTES

Act of March 14, 1820, 3 Stat. 548 ...............................7

Act of March 23, 1830, 4 Stat. 383 ...............................7

Act of March 3, 1879, 20 Stat. 475 ...............................7

Act of March 3, 1899, 30 Stat. 1014 .............................7

TABLE OF AUTHORITIES—Continued

Page

Act of March 3, 1919, 40 Stat. 1291 .............................7

Act of May 23, 1850, 9 Stat. 430 ...................................7

Act of June 18, 1929, 46 Stat. 21 ..................................7

Act of July 2, 1909, 36 Stat. 1 .......................................7

13 U.S.C. § 9(a)(2) .......................................................19

13 U.S.C. § 141(c) ..........................................................1

13 U.S.C. § 213 ............................................................21

13 U.S.C. § 214 ............................................................21

Voting Rights Act of 1965 (“VRA”),

52 U.S.C. § 10301............................................. passim

OTHER AUTHORITIES

1 CHRON. 21 ...................................................................6

31 The Writings of George Washington 329 (J.

Fitzpatrick, ed. 1939) ..............................................18

36 Op. Att’y Gen. 362 (1930) ......................................19

Brief of New York et al. as Amici Curiae in Support of Appellees, Evenwel v. Abbott, No. 14940 (U.S. Sept. 25, 2015) ............................. 11, 14, 15

Brief of U.S., Evenwel v. Abbott, No. 14-940 (Sept.

25, 2015) ............................................................ 11, 25

BUREAU OF THE CENSUS, 1970 CENSUS OF POPULATION AND HOUSING: PROCEDURAL HISTORY,

§ 15 (1976) .................................................................8

BUREAU OF THE CENSUS, 1990 CENSUS OF POPULATION AND HOUSING, § 14 ........................................8

TABLE OF AUTHORITIES—Continued

Page

BUREAU OF THE CENSUS, 2000 CENSUS OF POPULATION AND HOUSING, V.1, chapter 1 (2009) .............8

BUREAU OF THE CENSUS, PROCEDURAL HISTORY:

1980 CENSUS OF POPULATION AND HOUSING,

§ 12 ............................................................................8

Census Equity Act, H.R. 2661, 101st Cong. § 2(2)

(1989), www.congress.gov/bill/101st-congress/

house-bill/2661/text .................................................24

Census Equity Act: Hearings Before the Subcomm. on Census & Population of the H.

Comm. on Post Office & Civ. Serv., 101st Cong.

(1989) (statement of C. Louis Kincannon) .............24

Exclude Undocumented Residents from Census

Counts Used for Apportionment: Hearing

Before the Subcomm. on Census & Population of the H. Comm. on Post Office & Civil

Serv., 100th Cong. (1988) (testimony of John

Keane) .....................................................................24

EXODUS 30:11-16 ...........................................................6

Expert Report of Jorge Chapa, Ph.D. (Univ. of Ill.

at Urbana-Champaign), Doc. 128-5 (Aug. 8,

2011) ........................................................................16

Expert Report of Stephen Ansolabehere, Ph.D.

(Harvard University), Doc. 272 (Aug. 31,

2011) ..................................................................... 16

Frederick G. Bohme, Twenty Censuses: Population and Housing Questions 1790-1980, Bureau

of the Census (Oct. 1979), https://www.census.

gov/history/pdf/20censuses.pdf .................................8

TABLE OF AUTHORITIES—Continued

Page

HAYMAN ALTERMAN, COUNTING PEOPLE: THE CENSUS IN HISTORY 30 (1969) ....................................... 6, 7

HERODOTUS, HISTORIES 2.177 ........................................6

Letter from Mike Hunter, Attorney General of

Oklahoma, et al., to Wilbur Ross, U.S. Secretary of Commerce (Mar. 13, 2018), AR 1210...........17

Letter from Jeff Landry, Attorney General of

Louisiana, to Wilbur Ross, U.S. Secretary of

Commerce (Feb. 8, 2018), AR 1079 .........................17

Letter from Steve Marshall, Attorney General of

Alabama, to Wilbur Ross, U.S. Secretary of

Commerce (Feb. 23, 2018), AR 1163 .......................17

Letter from Ken Paxton, Attorney General of

Texas, to Dr. Jamin, U.S. Census Bureau (Feb.

23, 2018), AR 1155 ..................................................17

LIVY, AB URBE CONDITA 42.4-5 .....................................6

Memorandum to Karen Dunn Kelley, Under

Secretary for Economic Affairs, from Wilbur

Ross, Jr., Secretary of Commerce, on Reinstatement of a Citizenship Question on the

2020 Decennial Census Questionnaire (Mar.

26, 2018) ..................................................................17

Nathaniel Persily, The Law of the Census: How

to Count, What to Count, Whom to Count, and

Where to Count Them, 32 CARDOZO L. REV. 755

(2001) .......................................................................15

NUMBERS 1-4..................................................................6

xii

TABLE OF AUTHORITIES—Continued

Page

Philip Harris, et al., Evaluation Report Covering

Place of Birth, U.S. Citizenship Status, and

Year of Arrival (Jan. 12, 2007), available at

www.census.gov/library/working-papers/2007/

acs/2007_Harris_01.html .................................. 23, 24

Ruth C. Silva, The Population Base for Apportionment of the New York Legislature, 32

FORDHAM L. REV. 1 (1963) .......................................16

Statement of Former Census Directors on Adding a New Question to the 2010 Census (Oct.

16, 2009) ..................................................................25

The Twenty-Second Decennial Census, 18 U.S.

Op. Off. Legal Counsel 184 (1994) ............................7

U.S. Census Bureau, A Compass for Understanding and Using American Community

Survey Data: What State and Local Governments Need to Know (Feb. 2009), www.census.

gov/content/dam/Census/library/publications/

2009/acs/ACSstateLocal.pdf ...................................13

U.S. Census Bureau, American Community Survey: Questionnaire Archive, www.census.gov/

programs-surveys/acs/methodology/questionnairearchive.html ..............................................................9

U.S. Census Bureau, American Community Survey: Response Rates, www.census.gov/acs/www/

methodology/sample-size-and-data-quality/

response-rates/ ........................................................23

xiii

TABLE OF AUTHORITIES—Continued

Page

U.S. Census Bureau, History: 1960 (Population),

www.census.gov/history/www/through_the_

decades/index_of_questions/1960_population.

html ...........................................................................8

U.S. Census Bureau, History: 1970 (Population),

www.census.gov/history/www/through_the_

decades/index_of_questions/1970_population.

html ...........................................................................8

U.S. Census Bureau, History: 1980 (Population),

www.census.gov/history/www/through_the_

decades/index_of_questions/1980_population.

html ...........................................................................8

U.S. Census Bureau, History: 1990 (Population),

www.census.gov/history/www/through_the_

decades/index_of_questions/1990_population.

html ...........................................................................9

U.S. Census Bureau, History: 2000, www.census.

gov/history/www/through_the_decades/index_

of_questions/2000_1.html .........................................9

U.S. Census Bureau, Participant Statistical

Areas, available at www2.census.gov/geo/pdfs/

partnerships/PSAP_info_sheet.pdf ........................13

INTERESTS OF AMICI CURIAE

Amici curiae are the States of Oklahoma, Arkansas, Alabama, Florida, Georgia, Indiana, Kansas, Louisiana, Michigan, Montana, Nebraska, South Carolina,

Texas, Utah, and the People of the State of Colorado ex

rel. Cynthia H. Coffman, in her Official Capacity as

Colorado Attorney General (“Amici States”). Amici

States rely upon demographic information specifically

provided by the U.S. Department of Commerce when

redistricting. 13 U.S.C. § 141(c). The Department’s

decision to include a citizenship question in the 2020

Census will improve Amici States’ ability to comply

with the Voting Rights Act of 1965 (“VRA”), codified at

52 U.S.C. § 10301, by affording States superior data of

the citizen voting age population.1

For purposes of this appeal, no one disputes

that the federal government generally possesses the

constitutional and statutory authority to include a

citizenship question on a census form. State v. U.S.

Dep’t of Commerce, 315 F. Supp. 3d 766, 799-806

(S.D.N.Y. 2018); United States v. Moriarity, 106 F. 886

(C.C.S.D.N.Y. 1901); Morales v. Daley, 116 F. Supp. 2d

Oklahoma together with 17 other States filed an amicus

brief in support of Petitioners at the trial court stage. Doc. 162-1

(June 1, 2018) (Brief of the States of Oklahoma, Louisiana, Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Kentucky, by

and through Gov. Matthew G. Bevin, Maine, by and through Gov.

Paul R. LePage, Michigan, Missouri, Montana, Nebraska, South

Carolina, Tennessee, and Texas, and the People of the State of

Colorado ex rel. Cynthia H. Coffman, In Her Official Capacity as

Colorado Attorney General, as Amici Curiae in Support of Defendants’ Motion to Dismiss).

801, 809 (S.D. Tex. 2000), aff ’d sub nom. Morales v.

Evans, 275 F.3d 45 (5th Cir. 2001). But States have an

interest in rebutting assertions that the citizenship

question was added to the 2020 Census for pretextual

reasons, in part because the States themselves requested the question for the reasons stated herein.

Moreover, the States have an interest in “protect[ing] officials who are required to exercise their discretion and the related public interest in encouraging

the vigorous exercise of official authority.” Butz v. Economou, 438 U.S. 478, 506 (1978). If this Court should

permit the deposition of a federal cabinet officer in order to ascertain his subjective motives in making a

commonplace administrative decision, that would open

the floodgates for similar depositions and subpoenas

against state officers.

------------------------------------------------------------------

SUMMARY OF ARGUMENT

Citizenship still matters. It has always been and

continues to be the hallmark of civic participation.

Johnson v. Eisentrager, 339 U.S. 763, 769 (1950). It is

nothing short of sovereignty as it exists at the atomic

level. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779,

838 (1995). The lack of reliable data on citizenship degrades each citizen’s right to participate in free and

fair elections. When legislators determine districts

based on population without access to accurate statistics on citizenship, the result is that legally eligible voters may have their voices diluted or distorted. Matters

of such constitutional importance should not be unnecessarily imperiled when the solution is as simple as a

question on a census form.

In recognition of this commonsense principle, the

Department has decided to include a question about

citizenship on the 2020 Census. Such a question is

hardly dissimilar to asking about a resident’s age,

name, race, sex, relationship status, Hispanic origin,

and housing status—the other questions to be asked

on the 2020 Census. And including a citizenship question stands to provide substantial, known benefits to

States complying with the VRA.

Yet “[a]s one season follows another, the decennial

census has again generated a number of reapportionment controversies.” Franklin v. Massachusetts, 505

U.S. 788, 790 (1992); see also Wisconsin v. City of New

York, 517 U.S. 1, 19 (1996) (noting “the plethora of

lawsuits that inevitably accompany each decennial

census”). This time, Respondents argue that government’s facially neutral policy was made with an impermissible intent. Unable to prove this point by reference

to the administrative record, Respondents seek to compel the deposition of a cabinet-level official: Commerce

Secretary Wilbur Ross.

Amici States respectfully urge this Court to reverse for two important reasons. First, including a citizenship question on the 2020 Census would yield

significant benefits to Amici States by providing them

superior data to use in their efforts to comply with the

VRA, as well as reducing litigation surrounding VRA

compliance. It is historically grounded, legally sound,

and justified by common sense; no pretext or ill motive

should be inferred from its inclusion. The district

court’s order permitting the deposition of Secretary

Ross, based on the assumption that inclusion of the

question was pretextual, was fundamentally flawed.

Second, failing to immunize a high-level federal official from such subpoena requests would set a dangerous precedent that would permit litigants to employ

the same in terrorem litigation tactics against senior

state government officials. Amici States have already

faced numerous such requests, and a decision by this

Court affirming the decision below would have significant negative consequences for the day-to-day administration of state governments across the nation.

------------------------------------------------------------------

ARGUMENT

Inclusion Of The Citizenship Question On

The 2020 Census Is Not Pretextual, But

Instead Is Justified By Historical Practice

And The Significant Benefits It Provides

To Amici States.

The district court concluded that discovery outside

the administrative record in this case was permitted in

part based on the conclusion that the justification for

the citizenship question—to obtain better day for enforcement of the VRA—was not valid and therefore

pretextual. Pet. App. 99a-100a. But far from being unjustifiable and necessarily the product of pretext, the

Bureau’s decision to include a citizenship question reflects long historical practice and good public policy.

Questions about citizenship and other characteristics

of a population in a census have been asked for millennia across the Western world, and have been asked to

those in America over a billion times. Doing so would

provide substantial benefits by reducing litigation under Section 2 of the VRA, allowing States to achieve

greater certainty in redistricting, and promoting the

equal suffrage of all citizens. Any suggestion that this

question might only stem from impermissible motives

ignores these historical and practical realities.

A. Census Citizenship Questions Are Historically Commonplace.

“Census taking is an age-old practice,” Utah v.

Evans, 536 U.S. 452, 496 (2002) (Thomas, J., concurring

in part and dissenting in part), and has long been a tool

to collect more information beyond a mere headcount.

The Pharaohs of Ancient Egypt, in addition to a headcount, asked every inhabitant to declare how he earned

his living. HERODOTUS, HISTORIES 2.177. The Bible records several censuses, which were not exclusively limited to headcounts. EXODUS 30:11-16 (collecting

atonement monies); NUMBERS 1-4 (separately counting

men above the age of 20 capable of military service); 1

CHRON. 21 (same). And Ancient Athens was known to

have separately counted citizens, metics (i.e., resident

aliens), and slaves. HAYMAN ALTERMAN, COUNTING PEOPLE: THE CENSUS IN HISTORY 30 (1969).

Most notably, the Roman “census” (whence the

English word derives) was established in the 6th century B.C. by King Servius Tullius to count the number

of arms-bearing citizens. LIVY, AB URBE CONDITA

42.4-5. During the Roman Republic, the head of each

family was required to appear in the Campus Martius

to give under oath an account of himself, his family,

and all his property, including: his full name, whether

he was a freedman, his age, whether he was married,

the number and names of children, a list of all his property, and his citizenship status. Officials made a list of

citizens that was then published.

The first English census was taken by William I

and published in the Domesday Book in 1086. Inhabitants were asked: what the local manor was called; who

held it in 1066; who held it now; the area of land the

manor encompassed; how many ploughs there were;

how many freemen, sokemen, villans, cottages, and

slaves there were; a description of the land’s natural

resources; a valuation of the property; and a description of how much property each freeman and sokeman

had.2

“[F]rom the first census, taken in 1790, the Congress has never performed a mere headcount. It has

always included additional data points, such as race,

sex, and age of the persons counted.” Morales, 116

F. Supp. 2d at 809. Between 1820 and 1950, almost

every decennial census asked a question about citizenship in some form. Act of March 14, 1820, 3 Stat. 548,

550; Act of March 23, 1830, 4 Stat. 383, 389; Act of May

23, 1850, 9 Stat. 430, 433; Act of March 3, 1879, 20 Stat.

475, 477; Act of March 3, 1899, 30 Stat. 1014, 1015; Act

of July 2, 1909, 36 Stat. 1, 3; Act of March 3, 1919, 40

Stat. 1291, 1294; Act of June 18, 1929, 46 Stat. 21, 22;

see also Dfs. Motion to Dismiss, Doc. 155, at 3-6 (May

25, 2018) (“MTD”) (reviewing history of census questions). It was not until 1960—following more than 30

years of very low immigration levels—that the census

omitted a question about citizenship, although even

that census asked about each respondent’s “[p]lace of

Before the first decennial census in 1790, no modern nation

in the Western world had conducted a census (although several

colonial States did so). The Twenty-Second Decennial Census, 18

U.S. Op. Off. Legal Counsel 184, 188 (1994) (citing ALTERMAN,

supra, at 164). The absence of a national census between the

Domesday Book and Enumeration Clause appears to be explained

by a fear that the biblical plague that beset the Jews after David’s

census would reprise itself. Indeed, the British seem to have only

instituted their modern census after receiving assurances from

the American example that nothing bad would happen if their

people were enumerated. ALTERMAN, supra, at 205-07.

birth” and “[i]f foreign born . . . the person’s mother

tongue” (as well as the birth country of each person’s

mother and father).3 In 1970, the census included on

its long-form questionnaire: “Where was this person

born?” and “For persons born in a foreign country—Is

the person naturalized?”4 Again in 1980, the census

asked a sample of respondents “In what state or foreign country was the person born?” and “If this person

was born in a foreign country . . . Is this person a naturalized citizen of the United States?”5 Then in 1990,

the long-form, sent to about one in six households,

U.S. Census Bureau, History: 1960 (Population), www.

census.gov/history/www/through_the_decades/index_of_questions/

1960_population.html. A citizenship question was included on the

1960 Census questionnaire for all residents of New York state.

See Frederick G. Bohme, Twenty Censuses: Population and Housing Questions 1790-1980, Bureau of the Census, at 71 (Oct. 1979),

https://www.census.gov/history/pdf/20censuses.pdf.

U.S. Census Bureau, History: 1970 (Population), www.

census.gov/history/www/through_the_decades/index_of_questions/

1970_population.html. Contrary to Respondents’ assertion that

“no citizenship question has been included on the decennial census since 1950,” Pls. First Amend. Compl., Doc. 85, at ¶ 97 & n.43

(Apr. 30, 2018) (“FAC”), the long-form questionnaire was the decennial census questionnaire for selected households from 1970

to 2000. BUREAU OF THE CENSUS, 1970 CENSUS OF POPULATION

AND HOUSING: PROCEDURAL HISTORY, § 15, 1 (1976); BUREAU OF

THE CENSUS, PROCEDURAL HISTORY: 1980 CENSUS OF POPULATION AND HOUSING, § 12, 3; BUREAU OF THE CENSUS, 1990 CENSUS

OF POPULATION AND HOUSING, § 14, 3; BUREAU OF THE CENSUS,

2000 CENSUS OF POPULATION AND HOUSING, V.1, chapter 1, 3 (2009).

U.S. Census Bureau, History: 1980 (Population), www.

census.gov/history/www/through_the_decades/index_of_questions/

1980_population.html.

directly asked respondents “Is this person a citizen of

the United States?”6 And it repeated this question in

2000.7

Following the 2000 Census, the Bureau decided to

retire the long-form questionnaire and initiate the

American Community Survey (“ACS”), beginning in

2005. The ACS features a question on citizenship, and

this has been asked every year from 2005 until the present.8

In total, the federal government has asked a resident whether he is a citizen of this country more than

a billion times since 1820.9 Given this nearly unbroken history of asking about citizenship—repeatedly in

the decennial census, and yearly in the ACS—it is a

dramatic understatement to say that including a citizenship question on the upcoming census would be

“wholly unremarkable.” Pet. 13. Claims that re-insertion of such a question, grounded in millennia of history, must be based on impermissible motives are

simply not plausible on their face.

U.S. Census Bureau, History: 1990 (Population), www.

census.gov/history/www/through_the_decades/index_of_questions/

1990_population.html.

U.S. Census Bureau, History: 2000, www.census.gov/history/

www/through_the_decades/index_of_questions/2000_1.html.

U.S. Census Bureau, American Community Survey: Questionnaire Archive, www.census.gov/programs-surveys/acs/methodology/

questionnaire-archive.html.

This figure includes all residents enumerated from 1820 to

1830 and from 1850 to 1950, plus those who responded to the

long-form questionnaire from 1980 to 2000, as well as all those

surveyed in the ACS from 2005 to 2016.

B. Amici States Will Benefit From Accurate, Granular Citizenship Information

When Complying With This Court’s Decisions Interpreting The VRA.

States must comply with Section 2 of the VRA,

which prohibits any practice that “results in a denial

or abridgement of the right of any citizen . . . to vote on

account of race or color.” 52 U.S.C. § 10301. Claims under Section 2 most commonly involve allegations of

vote dilution, i.e., “the dispersal of [a minority group]

into districts in which they constitute an ineffective

minority of voters or by the concentration of [the minority] into districts where they constitute an excessive majority.” Thornburg v. Gingles, 478 U.S. 30, 46

n.11 (1986). To establish a vote dilution claim, a “minority group must be able to demonstrate that it is sufficiently large and geographically compact to

constitute a majority in a single member district.” Id.

at 50 & n.16.

But this Court has made clear that it is not enough

to say that a minority group forms the majority of the

total population in a given area, or even forms “a bare

majority of the voting-age population”; rather, “the relevant numbers must include citizenship” since “only

eligible voters affect a group’s opportunity to elect candidates.” LULAC v. Perry, 548 U.S. 399, 429 (2006).

Failure to take into account citizenship risks creating

majority-minority districts “only in a hollow sense.” Id.

Thus, in order for States to achieve any certainty over

whether their districts comply with Section 2, they

must obtain information about the voting-eligible population.10

In recent years, because “[t]he decennial census

does not include a question on citizenship,” “the sole

source of citizenship data published by the Census Bureau now comes from the American Community Survey [ACS].” Patino v. City of Pasadena, 230 F. Supp. 3d

667, 687 (S.D. Tex. 2017) (citations omitted). Yet as Respondent the State of New York and other Respondents

in this case have acknowledged elsewhere, ACS data is

inferior for several reasons. Brief of New York et al. as

Amici Curiae in Support of Appellees, Evenwel v. Abbott, No. 14-940, at 1-5 & 14-26 (U.S. Sept. 25, 2015)

(“N.Y. Br., Evenwel”). In other words, up until this litigation, Respondents—and everyone else—acknowledged the inferiority of ACS citizenship data, as

further explained below.

1. ACS data is less accurate than decennial census data.

Statistical accuracy in Section 2 litigation is very

important, as cases often come down to 1% or 2% differences in the citizen voting age population of a challenged district. See, e.g., LULAC, 548 U.S. at 429; Luna

Because of demographic and socioeconomic differences

between minority populations and the national population, States

cannot assume that the percentage of minority voter-eligible residents

in a given area matches the percentage of minority residents in

the same area. Brief of U.S., Evenwel v. Abbott, No. 14-940, at 33

(Sept. 25, 2015). A higher proportion of the country’s minority

population consists of children under the age of 18, and there are

disparities in the rates of citizenship among ethnicities. Id.

v. Cty. of Kern, 291 F. Supp. 3d 1088, 1114 (E.D. Cal.

2018); Rios-Andino v. Orange Cty., 51 F. Supp. 3d 1215,

1224-25 (M.D. Fla. 2014). But ACS data is less accurate

than data obtained from the census. The ACS surveys

only one out of every thirty-eight households, whereas

a census question would reach every resident. This

smaller sample size translates to larger margins of error. Courts presume the decennial census data is accurate and reliable, e.g., Valdespino v. Alamo Heights

Indep. Sch. Dist., 168 F.3d 848, 853-54 (5th Cir. 1999);

United States v. Village of Port Chester, 704 F. Supp. 2d

411, 439 (S.D.N.Y. 2010), but the reliability of ACS data

is a significant and costly focus of Section 2 litigation,

particularly in cases involving small political units like

town councils and school districts for which ACS data

has large margins of error. See, e.g., Benavidez v. Irving

Indep. Sch. Dist., 690 F. Supp. 2d 451, 459-60 (N.D. Tex.

2010) (rejecting plaintiff ’s reliance on ACS data); see

also Mo. State Conf. of NAACP v. Ferguson-Florissant

Sch. Dist., 201 F. Supp. 3d 1006, 1033 & n.10 (E.D. Mo.

2016); Pope v. Cnty. of Albany, No. 11-CV-0726, 2014

WL 316703, at *13 n.22 (N.D.N.Y. Jan. 28, 2014).

Indeed, litigants often must expend significant resources to cull separate corroborative data to successfully overcome criticisms of ACS data. See, e.g., Fabela

v. City of Farmers Branch, No. 3:10-CV-1425-D, 2012

WL 3135545, at *4-8 (N.D. Tex. Aug. 2, 2012). And even

where the parties agree that it is appropriate to use

ACS data, there is litigation over obscure technical issues about how to use the data. See, e.g., Rios-Andino,

51 F. Supp. 3d at 1224-25 (resolving dispute over

whether ACS data indicated proposed district had

50.19% or 48.0% Latino citizen voting age population).

The inclusion of a citizenship question in the 2020 Census would obviate these many problems and costs imposed by the inaccuracy of ACS data.

2. ACS data is less granular than decennial census data.

Second, ACS data is less granular than decennial

census data. Census data is available at the level of

census block groups (600 – 3,000 people) and census

tracts (1,500 – 8,000 people).11 But because of the

ACS’s limited sample size, its 1-year estimates are

only statistically reliable for areas of 65,000 people or

more. Perez v. Perry, No. SA-11-CV-360, 2017 WL

962686, at *3 (W.D. Tex. Mar. 10, 2017). In other words,

such data is reliable only for 6.6% of school districts,

10.4% of urban areas, and 25% of counties in the country.12 The ACS’s 3-year estimates are available for areas containing more than 20,000 people, and only the

5-year estimates are available for smaller areas such

as census tract and block groups—although even here

“block group estimates may contain large margins of

error.” Id. Respondents themselves have previously argued to this Court that, without a citizenship question

U.S. Census Bureau, Participant Statistical Areas, available at www2.census.gov/geo/pdfs/partnerships/PSAP_info_sheet.pdf.

U.S. Census Bureau, A Compass for Understanding and

Using American Community Survey Data: What State and Local

Governments Need to Know, at 2-3 (Feb. 2009), www.census.gov/

content/dam/Census/library/publications/2009/acs/ACSstateLocal.pdf.

on the census, “[Citizen Voting Age Population] figures

simply do not exist at the level of granularity that the

States require for purposes of drawing state legislative

districts.” N.Y. Br., Evenwel, at 19.

3. ACS data is not compatible with

other decennial census data.

Third, the ACS dataset does not mesh with the decennial census dataset. ACS data is continually collected on a monthly basis and only later aggregated

into one-, three-, and five-year estimates. The decennial census, by contrast, is a snapshot of the country

taken once per decade. Further complicating matters,

ACS geography (e.g., urban areas, census tracts, block

groups, etc., as well as how those terms are defined) resets with the decennial census, which results in data

discontinuity at precisely the time officials who are engaged in redistricting need race and citizenship data

to ensure VRA compliance. Thus, any attempt to merge

population data from the census with citizenship data

from the ACS requires significant adjustments to the

datasets.

Accordingly, it was bizarre for the district court to

find that, because census citizenship data “is by definition quickly out of date,” it cannot be helpful in enforcing the VRA. Pet. App. 99a. That is true of all census

data upon which all redistricting is premised. The district court’s argument is not a criticism of the citizenship question; it is an attack on the census itself.

Because VRA compliance and enforcement relies primarily on decennial census data—including for total

population and racial demographic figures—it is better

for the citizenship data to stem from that same source,

rather than a completely separate survey.

4. ACS data is not authoritative and

subject to manipulation in litigation.

Fourth, the ACS does not provide an authoritative

dataset for States to rely upon. Rather, courts must

wrestle with whether the relevant dataset should be

the one-, three-, or five-year estimate. Nathaniel Persily, The Law of the Census: How to Count, What to

Count, Whom to Count, and Where to Count Them, 32

CARDOZO L. REV. 755, 777 (2001) (“Each [range] . . . indicate[s] a different number of citizens, include[s] a different statistical range for each level of geography, and

[is] amenable to different arguments as to their relative validity.”). And litigants may further debate when

the relevant time period should begin and end. See, e.g.,

Rodriguez v. Harris Cty., 964 F. Supp. 2d 686, 731-33

(S.D. Tex. 2013) (resolving whether to use 2005-2009 or

2006-2010 ACS data). In contrast, the decennial census occurs only once every ten years. There is no room

for manipulation in selecting the relevant time-band—

a virtue Respondents themselves have acknowledged.

See N.Y. Br., Evenwel, at 19-20; cf. Dep’t of Commerce v.

U.S. House of Representatives, 525 U.S. 316, 348-49

(1999) (Scalia, J., concurring in part) (arguing for the

interpretation “with minimal possibility of partisan

manipulation”).

***

In the absence of reliable citizenship data from

the federal census, States lack the resources to conduct their own statewide citizenship surveys. Some

States—including Respondents New York and Massachusetts—used to do so in order to apportion state districts according to citizen populations. N.Y. Br.,

Evenwel, at 1-5. Yet because States lacked the expertise and resources of the Bureau, their data was intolerably inaccurate. Ruth C. Silva, The Population Base

for Apportionment of the New York Legislature, 32

FORDHAM L. REV. 1 (1963). As a result, several States

specifically amended their Constitutions to require

only apportionment by population. See N.Y. Const. art.

III, § 5-a; Mass Const. art. CXII; Tenn. Const. art. II,

§§ 4-6.

Significant amounts of Section 2 litigation stem

from the inaccuracies of ACS data, its incompatibility

with decennial census data, and the lack of any authoritative dataset.13 These uncertainties are compounded

by the corresponding uncertainty as to how any particular court will view the same issues. The Bureau’s simple step of adding a citizenship question to the census

will reduce the likelihood of litigation, and the expense

of litigation that does occur, by providing a unified dataset that will be authoritative, accurate, and reliable.

Legislatures can therefore draw districts with greater

For example, compare Expert Report of Jorge Chapa,

Ph.D. (Univ. of Ill. at Urbana-Champaign), Doc. 128-5 (Aug. 8,

2011), with Expert Report of Stephen Ansolabehere, Ph.D. (Harvard University), Doc. 272 (Aug. 31, 2011). Perez v. Texas, No.

5:11-cv-00360 (W.D. Tex.).

certainty. And citizens, in turn, can rest more confident that their fundamental right to vote is adequately protected.

In light of these benefits, sixteen States wrote letters

to the Secretary of Commerce formally requesting that

he include a citizenship question on the 2020 Census.

Letter from Jeff Landry, Attorney General of Louisiana,

to Wilbur Ross, U.S. Secretary of Commerce (Feb. 8,

2018), Administrative Record (“AR”) 1079; Letter from

Steve Marshall, Attorney General of Alabama, to Wilbur

Ross, U.S. Secretary of Commerce (Feb. 23, 2018), AR

1163; Letter from Ken Paxton, Attorney General of

Texas, to Dr. Jamin, U.S. Census Bureau (Feb. 23,

2018), AR 1155; Letter from Mike Hunter, Attorney

General of Oklahoma, et al., to Wilbur Ross, U.S. Secretary of Commerce (Mar. 13, 2018), AR 1210. Based in

part upon these requests, the Department plans to include a citizenship question on the 2020 Census. Pet.

App. 137a, Memorandum to Karen Dunn Kelley, Under

Secretary for Economic Affairs, from Wilbur Ross, Jr.,

Secretary of Commerce, on Reinstatement of a Citizenship Question on the 2020 Decennial Census Questionnaire at 1 (Mar. 26, 2018) (“[M]y staff and I reviewed

over 50 incoming letters from stakeholders, interest

groups, Members of Congress, and state and local officials regarding reinstatement of a citizenship question

on the 2020 decennial census.”). Respondents’ allegations that the citizenship question was only added to

serve impermissible motives cannot be squared with

the reality reflected in the administrative record of the

chorus of States requesting this question in light of the

undeniable benefits it would confer.

C. Including A Citizenship Question Will

Not Have Any Adverse Effect On Participating Residents.

It appears that Respondents’ principal justification for deposing Secretary Ross is to prove that the

true motivation of adding the citizenship question was

to harm racial minorities. But there is no evidence to

believe that this motive for adding the question is even

plausible. Census respondents have zero reasons to

fear that disclosing their citizenship status will negatively affect them in any way.

Respondents’ allegations of fear is nothing new.

Even in the very first census the federal government

had to grapple with the fear of an undercount “because

the religious scruples of some, would not allow them to

give in their lists” and others “fear[ed] . . . that it was

intended as the foundation of a tax[, which] induced

them to conceal or diminished theirs.” Baldrige v.

Shapiro, 455 U.S. 345, 353-54 n.8 (1982) (quoting 31

The Writings of George Washington 329 (J. Fitzpatrick,

ed. 1939)). Fear itself is no reason to grind the census

to a halt. And irrational fears cannot be the basis for

the fishing expedition outside of the administrative

record that Respondents demand in this case.

1. Census responses could not convey

whether the person responding is

an illegal immigrant.

First, as a matter of logic, non-citizen status does

not imply illegal alien status. Even if the federal

government sought to use census form responses to deport illegal immigrants, immigration officials would

not be able to tell from the form whether a particular

alien was here legally or illegally. Cf. United States v.

Greenberg, 200 F. Supp. 382, 390-91 (S.D.N.Y. 1961)

(noting that access to census lists “would be of little

aid” in jury selection process).

As the Attorney General summarized long ago:

“The sole purpose of the census is to secure general statistical information regarding the population and resources of the country, and replies are required from

individuals only to permit the compilation of such general statistics. No person can be harmed in any way by

furnishing the information required. The census has

nothing to do with taxation, with military or jury service, with the compulsion of school attendance, with

the regulation of immigration or with the enforcement

of any national, state or local law or ordinance. There

need be no fear that any disclosure will be made regarding any individual person or his affairs.” FTC v.

Orton, 175 F. Supp. 77, 79-80 (S.D.N.Y. 1959) (quoting

36 Op. Att’y Gen. 362, 366 (1930)).

2. The Bureau is prohibited from sharing census response data with law

enforcement.

Moreover, the Bureau is statutorily prohibited

from sharing any data where an “individual . . . can be

identified.” 13 U.S.C. § 9(a)(2). “Sections 8(b) and 9(a)

explicitly provide for the nondisclosure of certain

census data.” Baldrige, 455 U.S. at 355. This “confidentiality of individual responses has long been assured

by statute.” Franklin, 505 U.S. at 818 n.18 (Stevens, J.,

concurring in part). And “the history of the Census Act

and the broad language of the confidentiality provisions of § 9 make abundantly clear that Congress intended both a rigid immunity from publication or

discovery and a liberal construction of that immunity

that would assure confidentiality.” Carey v. Klutznick,

653 F.2d 732, 739 (2d Cir. 1981) (citation and quotation

marks omitted). By its text, “[n]o discretion is provided

to the Census Bureau on whether or not to disclose the

information referred to in §§ 8(b) and 9(a).” Baldrige,

455 U.S. at 355. As a result, this prohibition has been

interpreted as “a flat barrier to disclosure with no exercise of discretion permitted.” Seymour v. Barabba,

559 F.2d 806, 808 (D.C. Cir. 1977).

These protections reflect “a determination that the

purpose of encouraging ready response to census inquiries would be better served by extending the privilege of confidentiality to the retained copies.” LaMorte

v. Mansfield, 438 F.2d 448, 452 (2d Cir. 1971) (Friendly,

J.); see also Baldrige, 455 U.S. at 361 (“[T]he Census

Act embod[ies] explicit congressional intent to preclude all disclosure of raw census data reported by

or on behalf of individuals.”). This “strong policy of

nondisclosure” was implemented “to encourage public

participation and maintain public confidence that information given to the Census Bureau would not be

disclosed.” Id. Indeed, the “Congressional purpose that

filed information be kept inviolate is underscored by

[o]ther section[s] which impos[e] substantial criminal

sanctions for any unauthorized disclosure.” United

States v. Bethlehem Steel Corp., 21 F.R.D. 568, 572

(S.D.N.Y. 1958) (citing 13 U.S.C. § 214); see also 13

U.S.C. § 213.14

As a result, courts have staunchly protected the

confidentiality of census response forms. Fed. Trade

Com. v. Dilger, 276 F.2d 739, 744 (7th Cir. 1960) (holding retained copies of response forms are protected

from disclosure); United States v. Int’l Bus. Machs.

Corp., 20 Fed. R. Serv. 2d 1082, 1975 WL 905 (S.D.N.Y.

1975) (holding the Bureau’s refusal to release responses does not violate due process); Orton, 175

F. Supp. at 78-79 (holding responses are protected from

disclosure to federal agencies); Bethlehem Steel Corp.,

21 F.R.D. at 572 (holding responses could not be disclosed because of Congress’ “clear and unambiguous”

intention to keep them privileged); see also St. Regis

Paper Co. v. United States, 368 U.S. 208, 218 (1961)

(noting the importance of “free and full” submissions

by the public to the Bureau); United States v. Little, 321

F. Supp. 388, 392 (D. Del. 1971) (“[T]he information

As one court noted: “One need not probe far to understand

that when Congress imposed upon citizens the duty of disclosing

information of a confidential and intimate nature, its purpose was

to protect those who complied with the command of the statute.

Apart from giving assurance to citizens that the integrity of the

information would be preserved by the Government, another purpose was to encourage citizens to submit freely all data desired in

recognition of its importance in the enactment of laws and other

purposes in the national interests.” United States v. Bethlehem

Steel Corp., 21 F.R.D. 568, 570 (S.D.N.Y. 1958).

obtained by the census questionnaire is strictly confidential. It may not be used other than for statistical

reporting and may never be disclosed in any manner

so as to identify any individual who has answered the

questions.”) (citation omitted).

Not even States have a right to obtain census information that the Bureau deems confidential. Senate

of State of Cal. v. Mosbacher, 968 F.2d 974, 978-79 (9th

Cir. 1992) (California not entitled to Bureau’s statistical methods because actual enumeration clause offers

no right to disclosure). Nor, as a legal matter, should

this Court rest its judgment on the assumption that

federal executive officers will violate statutory law.

3. There is no empirical evidence that

asking about citizenship will result

in data suppression.

Nor is it plausible that the citizenship question

was a deliberate attempt to cause an undercount in minority communities, since fears of an undercount are

speculative at best.

Citizenship questions are not untested. Rather,

they have consistently been included on both the decennial census and the ACS for many iterations. Supra

at I.A. Respondents do not claim that asking about citizenship in these surveys has, in fact, had a detrimental effect on response rates. Rather, there is

evidence suggesting the inclusion of the citizenship

question in the ACS has had no effect on the response

rate in minority communities. Rodriguez v. Harris Cty.,

964 F. Supp. 2d 686, 730-31 (S.D. Tex. 2013) (finding

that ACS approximated the census tallies for ethnic

and minority populations); Fabela v. City of Farmers

Branch, No. 3:10-CV-1425-D, 2012 WL 3135545, at *6

(N.D. Tex. Aug. 2, 2012) (noting that the ACS significantly over-represents the number of Hispanics in Dallas County). Further, when the citizenship question

was introduced in the ACS in 2005, the response rate

actually increased for the following four years.15 Respondents’ claims of data suppression are therefore exaggerated and unsupported, and such bald speculation

cannot be the basis for deposing a Cabinet official.

Further evidence from the Bureau itself suggests

that the inclusion of a citizenship question would not

significantly deter participation in census surveys. In

2006, the Bureau studied proposed modifications to

ACS questions, including the citizenship question.

Philip Harris, et al., Evaluation Report Covering Place

of Birth, U.S. Citizenship Status, and Year of Arrival

(Jan. 12, 2007).16 The study concluded that revising

that question to ask for more detailed information—

namely, year of naturalization—did not impact either

the overall response rate, which was greater than 95%,

or the nonresponse rate to the citizenship question,

which was about 3 percent. Id. at 15, 19. This high response rate—and the fact that even respondents who

U.S. Census Bureau, American Community Survey: Response Rates, www.census.gov/acs/www/methodology/sample-sizeand-data-quality/response-rates/.

Available at www.census.gov/library/working-papers/2007/

acs/2007_Harris_01.html.

decline to answer the citizenship question (the 3 percent) are still counted in the broader survey—undermine Respondents’ theory that reintroducing a

citizenship question in the census will cause an undercount. Id. at 19.

Rather than providing empirical support for their

assertion, Respondents claim that the Bureau has

acknowledged for decades that asking about citizenship reduces response rates. N.Y. Br. in Opp. 4. But the

Bureau has acknowledged no such thing. Most of the

alleged acknowledgements were responses to the proposed exclusion of undocumented residents from the

census entirely. For example, Respondents cite Federation for American Immigration Reform v. Klutznick,

N.Y. Br. in Opp. 4, 33, but the issue in that case was not

whether to ask about citizenship, but whether the Bureau was required to “exclude [illegal aliens] from the

apportionment base.” 486 F. Supp. 564, 567 (D.D.C.

1980). Likewise, the 1988 and 1989 congressional testimony of Bureau officials, see First Am. Compl. ¶¶ 4041, related to a proposal to exclude undocumented residents from the census.17 With respect to that proposal,

Bureau officials were primarily concerned with the effect of asking, not about citizenship, but about legal

residency.18 And rightfully so, since asking whether

See Census Equity Act, H.R. 2661, 101st Cong. § 2(2) (1989),

www.congress.gov/bill/101st-congress/house-bill/2661/text.

See Census Equity Act: Hearings Before the Subcomm. on

Census & Population of the H. Comm. on Post Office & Civ. Serv.,

101st Cong. 43-44 (1989) (statement of C. Louis Kincannon); see

also Exclude Undocumented Residents from Census Counts Used

for Apportionment: Hearing Before the Subcomm. on Census &

someone is lawfully present raises very different concerns from asking whether he is a U.S. citizen. The

2009 letter from former Bureau directors supports that

distinction, see First Am. Compl. ¶ 43, because it contrasted a proposed “untested” question about both “citizenship and immigration status” with the well-tested

ACS citizenship question, which “only asks if respondents are U.S. citizens, not if they are in the country lawfully.” Statement of Former Census Directors on Adding

a New Question to the 2010 Census 1 (Oct. 16, 2009).19

The only affirmative evidence Respondents cite is

a memorandum prepared by John Abowd. N.Y. Brief in

Opp. 8; GRA75. But that memorandum conspicuously

omits any consideration of the States’ important interests in complying with the VRA. Instead, the memorandum notes that if the Department of Justice is

interested in bringing a claim under the VRA, the Census Bureau can assemble an ad hoc team to provide the

relevant data to federal litigators. GRA77. But the

whole point of including a citizenship question on the

census is so that all parties can have access to the

best possible data at the time States are engaged in

redistricting. Promises that federal litigators can

Population of the H. Comm. on Post Office & Civil Serv., 100th

Cong. 50 (1988) (testimony of John Keane).

The remaining “acknowledgements” cited by Respondents

were not positions of the Bureau, but merely private opinions of

former Bureau officials. See First Am. Compl. ¶ 42 (citing congressional testimony of former Director Prewitt); id. ¶ 45 (citing

the former Directors’ brief filed in Evenwel v. Abbott, which relied

heavily on Prewitt’s testimony).

access data when bringing enforcement suits do not

adequately protect States’ interests—or voters.

To the degree that Respondents possess but have

so far declined to share evidence that a citizenship

question will materially depress the census response

rate, they had an adequate opportunity to present this

to the Bureau back when the agency was considering

whether or not to include the question. Amici States

and numerous other stakeholders availed themselves

of this opportunity to present their views. Pet. App.

137a. But “no one provided evidence that there are residents who would respond accurately to a decennial

census that did not contain a citizenship question but

would not respond if it did.” Pet. App. 146a.

If indeed there is a significant undercount of immigrant residents in the 2020 Census, it will only be

because certain actors have politicized a commonsense

issue by choosing to fan unsubstantiated fears that

may deter non-citizens from participating in the census. Those persons instead should be assuring the public that their responses are protected by the most

robust legal mechanisms. Respondents’ attack on the

citizenship question, filled with allegations that it is

intended to harm minorities and designed to produce

an undercount, risks becoming a self-fulfilling prophecy.

II.

Permitting Deposition Of Secretary Ross

Will Increase Litigation Harassment Of

High-Level State Officials Based On Speculation That Official Actions Were Taken

With Ulterior Motives.

This Court has developed several doctrines that

insulate high-level government officials from intrusive

litigation. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800

(1982). These serve “to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of

official authority.” Butz v. Economou, 438 U.S. 478, 506

(1978). The “mental processes” of agency heads in particular should not be subject to “prob[ing]” by the

courts. Morgan v. United States, 298 U.S. 468, 480

(1936). In this spirit, the Eleventh Circuit has noted

that this Court’s precedents caution that “a district

court should rarely, if ever, compel the attendance of a

high-ranking official in a judicial proceeding.” In re

USA, 624 F.3d 1368, 1376 (11th Cir. 2010). The courts

of appeals are in accord in requiring exceptional circumstances before the testimony of high-level officials

may be compelled. See, e.g., Simplex Time Recorder Co.

v. Sec’y of Labor, 766 F.2d 575, 586 (D.C. Cir. 1985); In

re FDIC, 58 F.3d 1055, 1060 (5th Cir. 1995); Sweeney v.

Bond, 669 F.2d 542, 546 (8th Cir. 1982); Kyle Eng’g Co.

v. Kleppe, 600 F.2d 226, 231 (9th Cir. 1979); U.S. Bd. of

Parole v. Merhige, 487 F.2d 25, 29 (4th Cir. 1973).

Because states are coequal sovereigns, federalism

principles dictate that their high-level officials deserve

no less comity than do federal officials, and that federal

courts should be equally cautious when subjecting

state officials to their legal processes. See Tafflin v.

Levitt, 493 U.S. 455, 458 (1990) (“[U]nder our federal

system, the States possess sovereignty concurrent

with that of the Federal Government, subject only to

limitations imposed by the Supremacy Clause.”). But a

ruling for Respondents by this Court will impel other

courts across the land, both state and federal, to accede

to all-too-common requests to depose state officials in

order to fish for impermissible motives or make in terrorem demands.

A. State Officials Will Likely Suffer Increased

Litigation Burdens If Respondents Prevail.

Amici States have a vital interest in ensuring that

the constitutional protections this Court ultimately affords high-level federal officials will also adequately

protect high-level state officials. Although this case

arises under the Administrative Procedure Act, the

normal rule limiting review to the administrative record stems from broader structural principles that

would be undermined if extra-record discovery is permitted in this case. See Pet. 16. This will inevitably result in increased demands to depose state officials in

every challenge to state laws and regulations.

Unfortunately, it is already not unusual for litigants to seek to depose such state officials, and these

requests will grow if Respondents prevail in this case.

See, e.g., Freedom From Religion Found., Inc. v. Abbott,

A-16-CA-00233-SS, 2017 WL 4582804, at *12 (W.D.

Tex. Oct. 13, 2017) (granting 1-hour deposition of Texas

governor in Establishment Clause case); Estate of Levingston v. Cty. of Kern, 320 F.R.D. 520, 522 (E.D. Cal.

2017) (denying motion seeking to depose sheriff );

Locker v. Encana Oil & Gas (USA), Inc., 1:14-cv-00131,

ECF No. 97 (D. Wyo. June 14, 2017) (order denying motion to quash deposition of Wyoming governor’s policy

director); A.R. v. Dudek, 12-60460-CIV-ZLOCH/HUNT,

2016 WL 3753706, at *2 (S.D. Fla. Apr. 8, 2016) (denying United States’ request to depose the secretary of

Florida’s Agency for Health Care Administration); Hernandez v. Tex. Dep’t of Aging & Disability Servs.,

A-11-CV-856 LY, 2011 WL 6300852 (W.D. Tex. Dec. 16,

2011) (declining to permit deposition of Texas governor); Flandreau Santee Sioux Tribe v. South Dakota,

CIV. 07-4040, 2011 WL 294450 (D.S.D. Jan. 26, 2011)

(quashing deposition of South Dakota governor);

Thomas v. Cate, 1:05-cv-01198-LJO-JMD-HC, 2010 WL

1343789, at *4 (E.D. Cal. Apr. 5, 2010) (disallowing deposition of California governor’s legal affairs secretary);

Coleman v. Schwarzenegger, CIV S-90-0520 LKK JFM

P, 2008 WL 4300437, at *4 (N.D. Cal. Sept. 15, 2008)

(holding that “the magistrate judge clearly erred in ordering the depositions of the California Governor and

his Chief of Staff ”); California v. United States, C 050328 JSW, 2006 WL 2621647, at *1 (N.D. Cal. Sept. 12,

2006) (disallowing deposition of California attorney

general); Alliance for Global Justice v. District of Columbia, A.01-00811(PLF/J), 2005 WL 1799553, at *3

(D.D.C. July 29, 2005) (disallowing deposition of mayor

of District of Columbia).

It is likewise common for litigants to seek to depose high-level officials of counties and cities—political

subdivisions of States. See Stormo v. City of Sioux

Falls, 12-CV-04057-KES, 2016 WL 697116, at 7–10

(D.S.D. 2016) (disallowing deposition of Sioux Falls

mayor); Lederman v. N.Y. City Dep’t of Parks & Recreation, 731 F.3d 199, 204 (2d Cir. 2013) (district court

did not abuse its discretion in issuing a protective order barring depositions of the Mayor and former deputy mayor of New York City); Bogan v. City of Boston,

489 F.3d 417, 423 (1st Cir. 2007) (district court did not

abuse its discretion in disallowing deposition of Boston

mayor); Gil v. Cty. of Suffolk, CV 06-1683, 2007 WL

2071701, at *2 (E.D.N.Y. July 13, 2007) (declining to

allow deposition of county attorney); Marisol A. v. Giuliani, 95 CIV. 10533 (RJW), 1998 WL 132810, at *4

(S.D.N.Y. Mar. 23, 1998) (denying motion to depose

New York City Mayor Rudy Giuliani).

Just as in the federal context, depositions of highranking state officials can “disrupt the functioning of

the Executive Branch.” Cheney v. U.S. Dist. Court, 542

U.S. 367, 386 (2004). State officials likewise “have

‘greater duties and time constraints than other witnesses.’ ” Lederman, 731 F.3d at 203 (quoting In re

United States (Kessler), 985 F.2d 510, 512 (11th Cir.

1993)). Consequently, “[i]f courts did not limit these

depositions, such officials would spend ‘an inordinate

amount of time tending to pending litigation.’ ” Id.

(quoting Bogan, 489 F.3d at 423). It is therefore vital

that this Court take care to afford government officials—whether at the state or federal level—robust

protection against being forced to sit for depositions or

answer other extra-record discovery on their mental

processes and internal motivations.

Countenancing the decision of the district court

compelling the deposition of Secretary Ross risks subjecting state officials to abusive and harassing depositions—a risk that courts have recognized even in the

commercial litigation context. See, e.g., Apple Inc. v. Samsung Elecs. Co., 282 F.R.D. 259, 263 (N.D. Cal. 2012)

(“When a party seeks the deposition of a high-level executive . . . , courts have ‘observed that such discovery

creates a tremendous potential for abuse or harassment.’ ”) (quoting Celerity, Inc. v. Ultra Clean Holding,

Inc., C 05-4374MMC(JL), 2007 WL 205067, at *3 (N.D.

Cal. Jan. 25, 2007). This is particularly true where litigation concerns decisions of high-level officials regarding controversial issues, such as the present

case. See, e.g., Freedom From Religion Found., 2017 WL

4582804, at *2 (challenging decision of Texas Governor

requesting removal of monument mocking the Nativity

scene); Coleman, 2008 WL 4300437, at *4 (case alleging unconstitutional prison overcrowding); cf. Tenney v.

Brandhove, 341 U.S. 367, 376 (1951) (“In times of political passion, dishonest or vindictive motives are readily attributed to legislative conduct and as readily

believed.”). Only by curbing such harassing and abusive discovery requests can courts “protect officials

who are required to exercise their discretion” in these

important matters. Butz, 438 U.S. at 506. Failing to do

so will no doubt hinder the “public interest in encouraging the vigorous exercise of official authority.” Id.

B. State Law Provides Helpful Guidance On

The High Hurdles Litigants Must Clear

Before Deposing High-Level Officers.

In this context, the Court may glean valuable lessons from state appellate court decisions applying the

“apex” doctrine to analyze requests to depose highlevel government and corporate officers. Most notably,

the Texas Supreme Court has held that, in order to depose a corporation’s “upper level management,” the

party seeking the disposition must establish that the

officer has “unique or superior personal knowledge of

discoverable information.” Crown Cent. Petroleum

Corp. v. Garcia, 904 S.W.2d 125, 128 (Tex. 1995). If not,

the party is required “to attempt to obtain the discovery through less intrusive methods,” such as “depositions of lower level employees, the deposition of the

corporation itself, and interrogatories and requests for

production of documents directed to the corporation.”

Id. Only after making this good-faith attempt may the

party “attempt to show (1) that there is a reasonable

indication that the official’s deposition is calculated to

lead to the discovery of admissible evidence, and (2)

that the less intrusive methods of discovery are unsatisfactory, insufficient or inadequate.” Id.

Many other state courts have adopted this apex

rule with respect to both government and corporate officials. See, e.g., State ex rel. Mass. Mut. Life Ins. Co. v.

Sanders, 724 S.E.2d 353, 364 (W. Va. 2012); Alberto v.

Toyota Motor Corp., 796 N.W.2d 490, 495 (Mich. App.

2010); Liberty Mut. Ins. Co. v. Super. Ct. of San Mateo

Cty., 13 Cal. Rptr. 2d 363, 367–68 (Cal. App. 4th 1992).

Even states that have not adopted this approach have

recognized the importance of limiting the ability of litigants to force high-ranking officials to sit for depositions. See Crest Infiniti II, LP v. Swinton, 174 P.3d 996,

1003–04 (Okla. 2007) (declining to adopt “apex” rule,

but allowing for a protective order where an apex deposition “would inflict annoyance, harassment, embarrassment, oppression or undue delay, burden or

expense” or where an “appropriate corporate official”

may “provide the information sought”); Clarke v. State

Attorney General’s Office, 138 P.3d 144, 151 (Wash.

App. Div. 1 2006) (declining to allow deposition of current Governor and former Attorney General and following federal cases that “protect high-ranking

government officials from discovery when other available witnesses can provide the same information”);

Dep’t of Agric. and Cons. Servs. v. Broward Cty., 810

So.2d 1056, 1058 (Fla. 1st DCA 2002) (An “agency

head should not be subject to deposition . . . unless and

until the opposing parties have exhausted other discovery and can demonstrate that the agency head is

uniquely able to provide relevant information which

cannot be obtained from other sources.”); State ex rel.

Ford Motor Co. v. Messina, 71 S.W.3d 602, 606–07 (Mo.

2002) (en banc) (declining to adopt an “apex” rule but

holding that in determining whether to allow “top-level

employee depositions, the court should consider: whether

other methods of discovery have been pursued; the proponent’s need for discovery by top-level deposition; and

the burden, expense, annoyance, and oppression to the

organization and the proposed deponent”).

These decisions are particularly instructive in

that they almost uniformly require litigants seeking to

depose a high-level official to demonstrate that they

have exhausted less intrusive means of discovery before a deposition will be allowed. See, e.g., Crown Cent.,

904 S.W.2d at 128 (requiring the litigant to show “that

the less intrusive methods of discovery are unsatisfactory, insufficient or inadequate”). That this case involves an agency head instead of corporate executives

strengthens the concerns that motivated the statecourt decisions. See United States v. Morgan, 313 U.S.

409, 422 (1941) (“[T]he Secretary should never have

been subjected to this [deposition]. . . . Just as a judge

cannot be subjected to such a scrutiny, so the integrity

of the administrative process must be equally respected.” (citations omitted)). The district court, however, refused to seriously consider other options

besides a deposition of Secretary Ross. See Pet. App.

19a. But failing to require litigants to exhaust other

means of obtaining relevant information will only increase the risk of high-level officials facing harassing

depositions, thereby “disrupt[ing] the functioning of ”

state governments. Cheney, 542 U.S. at 386. If litigants

may avoid less intrusive means of discovery and proceed directly to deposing agency heads, as was the case

below, they will be emboldened to do so whenever it is

convenient.

------------------------------------------------------------------

CONCLUSION

The Court should reverse the decision below.

Respectfully submitted,

LESLIE RUTLEDGE

Attorney General

of Arkansas

MIKE HUNTER

Attorney General

of Oklahoma

NICHOLAS BRONNI

Solicitor General

DYLAN JACOBS

Asst. Solicitor General

ARKANSAS OFFICE OF THE

ATTORNEY GENERAL

323 Center St., Suite 200

Little Rock, AR 72201

MITHUN MANSINGHANI

Solicitor General

Counsel of Record

MICHAEL K. VELCHIK

Asst. Solicitor General

OKLAHOMA OFFICE OF THE

ATTORNEY GENERAL

313 NE Twenty-First St.

Oklahoma City, OK 73105

(405) 522-4392

mithun.mansinghani@oag.ok.gov

December 21, 2018

[Additional Counsel Listed On Following Page]

Counsel for Amici

STEVE MARSHALL

Attorney General

of Alabama

JEFF LANDRY

Attorney General

of Louisiana

The People of the State

of Colorado ex rel.

CYNTHIA H. COFFMAN,

In Her Official Capacity

as Colorado Attorney

General

BILL SCHUETTE

Attorney General

of Michigan

PAMELA JO BONDI

Attorney General

of Florida

TIMOTHY C. FOX

Attorney General

of Montana

DOUGLAS J. PETERSON

Attorney General

of Nebraska

CHRIS CARR

Attorney General

of Georgia

ALAN WILSON

Attorney General

of South Carolina

CURTIS T. HILL, JR.

Attorney General

of Indiana

KEN PAXTON

Attorney General

of Texas

DEREK SCHMIDT

Attorney General

of Kansas

SEAN D. REYES

Attorney General

of Utah

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.