Amicus Curiae Brief — Department of Commerce, et al., Petitioners v. New York, et al.

Supreme Court briefApr 1, 2019

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No. 18-966

IN THE

Supreme Court

of the United States

___________

DEPARTMENT OF COMMERCE, ET AL.,

Petitioners,

NEW YORK, ET AL.,

Respondents.

___________

On Writ of Certiorari Before Judgment

to the United States Court of Appeals

for the Second Circuit

___________

BRIEF OF CURRENT MEMBERS OF CONGRESS

AND BIPARTISAN FORMER MEMBERS OF

CONGRESS AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

___________

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

DAVID H. GANS

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW

Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amici Curiae

April 1, 2019

* Counsel of Record

TABLE OF CONTENTS

Page

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

INTEREST OF AMICI CURIAE ..........................

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

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

The Text and History of the Census

Clause

Require

the

Federal

Government To Count All Persons To

Ensure Equal Representation for All

Persons .....................................................

The

Fourteenth

Amendment

Reaffirmed

the

Constitutional

Obligation To Count All Persons,

Citizen and Non-Citizen Alike .............

III. The Census Act Prohibits the Addition of

New Census Questions Where the

Relevant Information May Be Gathered

Using Existing Records .............................

IV. The Goal of Enforcing the Voting Rights

Act Does Not Justify Ignoring the

Requirements of the Constitution and the

Census Act..................................................

CONCLUSION ....................................................

APPENDIX ...........................................................

II.

(i)

TABLE OF AUTHORITIES

Cases

Page(s)

Adams Fruit Co. v. Barrett,

494 U.S. 638 (1990) ...............................

Barnhart v. Sigmon Coal Co.,

534 U.S. 438 (2002) ...............................

Caring Hearts Pers. Home Servs., Inc. v.

Burwell,

824 F.3d 968 (10th Cir. 2016) ...............

Dep’t of Commerce v. U.S. House of

Representatives,

525 U.S. 316 (1999) ...............................

Encino Motorcars, LLC v. Navarro,

136 S. Ct. 2117 (2016) ...........................

Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612 (2018) ...........................

6, 20

Evenwel v. Abbot,

136 S. Ct. 1120 (2016) ....................... 3, 7, 12, 14

Franklin v. Massachusetts,

505 U.S. 788 (1992) ...............................

King v. Burwell,

135 S. Ct. 2480 (2015) ...........................

Michigan v. EPA,

135 S. Ct. 2699 (2015) ...........................

Montes v. City of Yakima,

40 F. Supp. 3d 1377

(E.D. Wash. 2014) .................................

iii

TABLE OF AUTHORITIES – cont’d

Page(s)

Murphy v. Smith,

138 S. Ct. 784 (2018) .............................

Peters v. Hobby,

349 U.S. 331 (1955) ...............................

SEC v. Chenery Corp.,

318 U.S. 80 (1943) .................................

Utah v. Evans,

536 U.S. 452 (2002) ........................ 3, 4, 8, 9, 10

Utility Air Reg. Grp. v. EPA,

573 U.S. 302 (2014) ...............................

Wesberry v. Sanders,

376 U.S. 1 (1964) ...................................

Constitutional Provisions and Legislative Materials

13 U.S.C. § 6(a) .........................................

13 U.S.C. § 6(b) .........................................

13 U.S.C. § 6(c) ......................................... passim

16 U.S.C. § 1456(c)(1)(A) ..........................

20 U.S.C. § 1412(5)(A) ..............................

42 U.S.C. § 2000cc-3(g) ............................

Cong. Globe, 39th Cong., 1st Sess.

(1865) .....................................................

Cong. Globe, 39th Cong., 1st Sess.

(1866) .............................................. 3, 13, 14, 15

TABLE OF AUTHORITIES – cont’d

Page(s)

2 The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Jonathan Elliot ed., 2d ed.

1836) ......................................................

4 The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Jonathan Elliot ed., 2d ed.

1836) ......................................................

The Declaration of Independence

(U.S. 1776) .............................................

H.R. Conf. Rep. 94-1719 (1976) ...............

Progress Rep. on the 2020 Census: Hearing

Before the H. Comm. on Oversight &

Gov’t Reform, 115th Cong. (May 8,

2018) ......................................................

1 The Records of the Federal Convention of

1787 (Max Farrand ed., 1911) .............. passim

2 The Records of the Federal Convention of

1787 (Max Farrand ed., 1911) ..............

Report of the Joint Committee on Reconstruction, at the First Session ThirtyNinth Congress (1866) ..........................

U.S. Const. amend. XIV, § 2 ....................

2, 12

U.S. Const. art. I, § 2, cl. 3 ....................... passim

TABLE OF AUTHORITIES – cont’d

Page(s)

Books, Articles, and Other Authorities

Akhil Reed Amar, America’s Constitution:

A Biography (2005) ...............................

8, 11

Margo Anderson, The Census and the Federal Statistical System: Historical Perspectives, 631 Annals of Am. Acad. of Pol.

& Soc. Sci. 152 (2010)............................

The Federalist No. 36 (Alexander Hamilton) (Clinton Rossiter rev. ed., 1999) ...

3, 10

1 Samuel Johnson, A Dictionary of the English Language (4th rev. ed. 1773) .........

James Madison, Census (Feb. 2, 1790), in

13 The Papers of James Madison (J.C.A.

Stagg ed., digital ed. 2010) ...................

Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (1996) ......................................

2 Joseph Story, Commentaries on the Constitution § 633 (1833) ............................

Gordon S. Wood, The Creation of the American Republic, 1776–1787 (1998 ed.) ....

INTEREST OF AMICI CURIAE1

Amici curiae are current members of Congress and

bipartisan former members of Congress who have a

strong interest in ensuring that the Census Bureau respects its constitutional duty to count all persons living in the United States, citizen and noncitizen alike.

As current and former members of Congress, amici

know that Census data is used to make critically important decisions, including regarding how representatives are apportioned in Congress; how Electoral College votes are distributed amongst the states; how

state, local, and congressional districts are drawn; and

how billions of dollars of federal funds to local communities are allocated. Thus, amici also appreciate that

failing to count all persons in the United States—as

our Constitution requires—would be enormously damaging, and the consequences of an unfair, inaccurate

count would endure for at least the next ten years, and

possibly much longer. Amici thus have a strong interest in this case.

A full listing of amici appears in the Appendix.

SUMMARY OF ARGUMENT

On March 16, 2018, Commerce Secretary Wilbur

Ross issued a memorandum directing the Census Bureau to add a question to the 2020 Census asking all

persons residing in the United States to divulge their

1 The parties have consented to the filing of this brief and their

letters of consent have been filed with the Clerk. Under Rule 37.6

of the Rules of this Court, amici state that no counsel for a party

authored this brief in whole or in part, and no counsel or party

made a monetary contribution intended to fund the preparation

or submission of this brief. No person other than amici or their

counsel made a monetary contribution to its preparation or submission.

citizenship status. To justify this order, Secretary

Ross blatantly manipulated the administrative process. To start, he manufactured a Department of Justice request to add the citizenship question—a fact he

deliberately hid from members of Congress. Then, set

on adding a citizenship question regardless of what the

administrative record showed about the need for such

a question, Secretary Ross turned a blind eye to reams

of evidence that demonstrated that the addition of this

new question was unnecessary and would undermine

the accuracy of the Census. Secretary Ross’s actions

flouted both the government’s constitutional obligation under the Census Clause to ensure a count of all

persons and the laws Congress passed to safeguard the

integrity of this constitutionally mandated count.

The Census is the cornerstone of our democracy.

To ensure equal representation for all, the Constitution, through both Article I, Section 2 and the Fourteenth Amendment, explicitly requires the federal government to accurately conduct an “actual Enumeration” of the people. U.S. Const. art. I, § 2, cl. 3. This

language places a clear duty on the federal government to count the “whole number of persons in each

State,” id. amend. XIV, § 2. In other words, the federal

government must count all people living in the United

States, whether they are citizens or noncitizens,

whether they were born in the United States or in a

distant part of the world.

This constitutional imperative that there be an

“actual Enumeration,” id. art. I, § 2, cl. 3, of the people

reflects the Framers’ conclusion—first at the nation’s

Framing more than two centuries ago and then again

in the aftermath of our nation’s bloody civil war—that

total population is the “natural & precise measure of

Representation,” 1 The Records of the Federal Convention of 1787, at 605 (Max Farrand ed., 1911)

[hereinafter Records of the Federal Convention], and

“the only true, practical, and safe republican principle,” Cong. Globe, 39th Cong., 1st Sess. 2767 (1866);

id. (“Numbers, not voters; numbers, not property; this

is the theory of the Constitution.”). “As the Framers of

the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents . . . .”

Evenwel v. Abbot, 136 S. Ct. 1120, 1132 (2016). Thus,

the Constitution draws no distinction between citizens

and noncitizens, but rather requires that the “whole

immigrant population should be numbered with the

people and counted as part of them.” Cong. Globe,

39th Cong., 1st Sess. 432. It imposes a constitutional

duty on the federal government to conduct a complete

and accurate count of everyone in order to realize the

“Constitution’s plain objective of making equal representation for equal numbers of people the fundamental

goal for the House of Representatives.” Wesberry v.

Sanders, 376 U.S. 1, 18 (1964).

The Constitution’s mandate that the federal government count the population of the entire nation to

ensure equal representation for all persons creates a

“strong constitutional interest in accuracy.” Utah v.

Evans, 536 U.S. 452, 478 (2002). The Framers knew

that “those who have power in their hands will . . . always when they can . . . increase it,” 1 Records of the

Federal Convention at 578. They thus enshrined the

requirement that all persons be counted directly into

the Constitution to “shut[] the door to partiality or oppression,” The Federalist No. 36, at 188 (Alexander

Hamilton) (Clinton Rossiter rev. ed., 1999), and prevent the government from using “a mode” of taking the

census “as will defeat the object[] and perpetuate the

inequality,” 1 Records of the Federal Convention at

571. In short, the Framers “placed a high[] value on

preventing political manipulation,” Evans, 536 U.S. at

506 (Thomas, J., concurring in part and dissenting in

part), and the federal government may not manipulate

the Census in order to evade the Constitution’s requirement that all persons be counted.

While the Framers mandated in the Constitution

itself that there be an “actual Enumeration” of the people, U.S. Const. art. I, § 2, cl. 3, they “did not write

detailed census methodology into the Constitution,”

Evans, 536 U.S. at 479 (majority opinion). Instead,

they left it to Congress to prescribe the “Manner” of

taking the Census. U.S. Const., art. I, § 2, cl. 3. Using

this express constitutional power, Congress has prohibited the Commerce Secretary from adding new

questions to the Census when the information those

questions would produce could be obtained from administrative records. By prohibiting unnecessary Census questions, Congress sought to reduce the burden

on Census respondents and to ensure that the constitutionally required count of all persons remains predominant.

Specifically, Section 6 of the Census Act provides,

in relevant part, that “[t]o the maximum extent possible and consistent with the kind, timeliness, quality

and scope of the statistics required, the Secretary shall

acquire and use information available” from administrative records “instead of conducting direct inquiries.”

13 U.S.C. § 6(c). As the statute’s plain language reflects, the Secretary must “acquire and use” administrative records to satisfy its information-gathering

needs “[t]o the maximum extent possible” rather than

“conducting direct inquiries,” id., which could deter

participation and detract from the count of all persons—the “actual Enumeration” the Constitution expressly mandates, U.S. Const. art. I, § 2, cl. 3. This is

an explicit, clear-cut command prohibiting the

addition of new questions to the Census where the relevant information may be gathered using existing records.

Secretary Ross’s decision to add the citizenship

question cannot be squared with this requirement, and

tellingly Secretary Ross never even addressed this provision in his memorandum ordering the addition of the

citizenship question. When Secretary Ross first formally proposed asking all persons to report their citizenship status, the Census Bureau objected that a

mandatory citizenship question would “harm[] the

quality of the census count, and would use substantially less accurate citizenship data than are available

from administrative sources.” See App. Cert. 47a; see

id. at 9a (“[H]undreds of thousands—if not millions—

of people will go uncounted in the census if the citizenship question is included.”). Secretary Ross demanded

the addition of the citizenship question anyway, ignoring Congress’s directive to “acquire and use” administrative records and avoid “direct inquiries” “[t]o the

maximum extent possible.” 13 U.S.C. § 6(c). This violation of an explicit limitation contained in the Census

Act requires that Secretary Ross’s order be set aside. 2

Secretary Ross’s proffered justification for the citizenship question—to better enforce the Voting Rights

Act—cannot justify the Secretary’s blatant violation of

Section 6(c). First of all, the Secretary has no expertise with respect to the Voting Rights Act and no

2 In addition to the Section 6(c) violation, the district court held

that the addition of the citizenship question violated the Administrative Procedure Act in “multiple independent ways,” including

that the decision was arbitrary and capricious, violated procedural requirements, and concealed the true basis for the decision.

App. Cert. 9a-10a. This brief does not address those independent

bases for affirmance.

authority to enforce it. See Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612, 1629 (2018). Second, citizenship data

could have been obtained from administrative records

in a manner entirely consistent with the Census Act.

Third, a citizenship question has never been viewed as

necessary to ensure robust protection of the right to

vote free from racial discrimination. Indeed, since the

passage of the Voting Rights Act in 1965, the Census

has never asked all persons to report their citizenship

status. In sum, the Secretary offers nothing more than

a specious explanation for his decision, and this explanation cannot justify undercutting what the Constitution mandates: a count of all the people, regardless of

their citizenship status.

ARGUMENT

I. The Text and History of the Census Clause

Require the Federal Government To Count

All Persons To Ensure Equal Representation

for All Persons.

In order to ensure that “the foundations of this government should be laid on the broad basis of the people,” 4 The Debates in the Several State Conventions on

the Adoption of the Federal Constitution 21 (Jonathan

Elliot ed., 2d ed. 1836) [hereinafter Elliot’s Debates],

Article I, Section 2 provides that “Representatives . . .

shall be apportioned among the several States which

may be included within this Union, according to their

respective Numbers, which shall be determined by

adding to the whole Number of free Persons . . . three

fifths of all other Persons.” U.S. Const. art. I, § 2,

cl.3. To ensure a proper count of the nation’s total population, Article I, Section 2 requires that an “actual

Enumeration shall be made within three Years after

the first Meeting of the Congress of the United States,

and within every subsequent Term of ten Years, in

such Manner as they shall by Law direct.” Id.

In choosing the total-population standard, the

Framers decreed that “as all authority was derived

from the people, equal numbers of people ought to have

an equal no. of representatives.” 1 Records of the Federal Convention at 179. Determining representation

in Congress based on a count of all persons reflected

that “every individual of the community at large has

an equal right to the protection of government.” Id. at

473; id. at 477 (“[T]he people shd. be repre[se]nted in

proportion to [their] numbers, the people then will be

free . . . .”); Evenwel, 136 S. Ct. at 1129 (explaining that

“the principle of representational equality figured

prominently in the decision to count people, whether

or not they qualify as voters”).

The idea that all persons should enjoy equal representation had deep roots in America’s bid for independence from England. The Framers were familiar

with what James Madison called the “vicious representation in G. B.,” 1 Records of the Federal Convention at 464, in which “so many members were elected

by a handful of easily managed voters in ‘pocket’ and

‘rotten’ boroughs, while populous towns went grossly

underrepresented or not represented at all,” Jack N.

Rakove, Original Meanings: Politics and Ideas in the

Making of the Constitution 210 (1996). The Declaration of Independence charged that King George III had

forced the colonists to “relinquish the right of Representation in the Legislature, a right inestimable to

them and formidable to tyrants only.” The Declaration

of Independence para. 5 (U.S. 1776). Having seen the

political system manipulated for partisan ends in England, the Framers strove to design a system that would

reflect the principle that a “free and equal representation is the best, if not the only foundation upon which

a free government can be built.” 2 Elliot’s Debates at

25 (emphasis omitted). Of all “the electoral safeguards

for the representational system,” none “was as important to Americans as equality of representation.”

Gordon S. Wood, The Creation of the American Republic, 1776–1787, at 170 (1998 ed.).

To achieve these goals, the Framers imposed on the

federal government a duty to conduct a complete and

accurate count of all people residing in the nation, creating a structural protection for equal representation.

This was a revolutionary undertaking. “While other

nations had attempted population counts, none had

made the count itself an important method of maintaining democracy by mandating it through a founding

document.” Evans, 536 U.S. at 510 (Thomas, J., concurring in part and dissenting in part); Margo Anderson, The Census and the Federal Statistical System:

Historical Perspectives, 631 Annals of Am. Acad. of Pol.

& Soc. Sci. 152, 154 (2010) (“With th[e Census

Clause’s] words, the United States became the first nation in the history of the world to take a population

census and use it to allocate seats in a national assembly according to population.”). Thus, at a time when

“democratic self-government existed almost nowhere

on earth,” Akhil Reed Amar, America’s Constitution: A

Biography 8 (2005), the Framers made the Census the

cornerstone of the democratic system of government

they created.

The text of Article I, Section 2 provided a “conjectural ratio” for the apportionment of representatives

“to prevail in the outset,” but the Framers refused to

permit guesswork to be used going forward. 1 Records

of the Federal Convention at 578; Evans, 536 U.S. at

475 (“[T]he original allocation of seats in the House

was based on a kind of ‘conjectur[e],’ in contrast to the

deliberately taken count that was ordered for the

future.” (quoting 1 Records of the Federal Convention

at 578-79)). As George Mason argued, “a Revision

from time to time according to some permanent & precise standard” was “essential to [the] fair representation required in the 1st. branch.” 1 Records of the Federal Convention at 578. While the Framers did not

prescribe a “detailed census methodology,” Evans, 536

U.S. at 479, they established a firm rule that the political branches cannot vary: all persons must be

counted, regardless of where they are from.

Wary that those in power might try to undermine

the promise of equal representation for all, the Framers insisted on an “actual Enumeration”—a national

count of all inhabitants—once every ten years. U.S.

Const. art. I, § 2, cl. 3. As Founding-era dictionaries

make clear, “an ‘enumeration’ requires an actual

counting.” Dep’t of Commerce v. U.S. House of Representatives, 525 U.S. 316, 346 (1999) (Scalia, J., concurring in part) (collecting dictionary definitions); Evans,

536 U.S. at 475 (“Late-18th-century dictionaries define

the word simply as an ‘act of numbering or counting

over . . . .’” (quoting 1 Samuel Johnson, A Dictionary of

the English Language 658 (4th rev. ed. 1773))). As

James Madison observed during debates over the First

Census Act, while “there will be more difficulty attendant on taking the census, in the way required by

the [C]onstitution,” a count of all persons would provide “the exact number” rather than “assertions and

conjectures.” James Madison, Census (Feb. 2, 1790),

in 13 The Papers of James Madison (J.C.A. Stagg ed.,

digital ed. 2010). The constitutional requirement of an

“actual Enumeration,” U.S. Const. art. I, § 2, cl. 3,

would help ensure that “every individual of the community at large has an equal right to the protection of

government,” 1 Records of the Federal Convention at

473, and prevent political manipulation of our democratic system of government.

As the debates over the Census Clause at the Constitutional Convention reflect, the Framers understood that “those who have power in their hands will

not give it up while they can retain it. On the [c]ontrary we know they will always when they can rather

increase it.” Id. at 578; Evans, 536 U.S. at 500

(Thomas, J., concurring in part and dissenting in part)

(observing that “[d]ebate about apportionment and the

census . . . focused for the most part on creating a

standard that would limit political chicanery”). The

Framers’ decision to mandate a national count of all

inhabitants every ten years to ensure equal representation for all persons “had the recommendation of

great simplicity and uniformity in its operation, of being generally acceptable to the people, and of being less

liable to fraud and evasion, than any other, which

could be devised.” 2 Joseph Story, Commentaries on

the Constitution § 633, at 107 (1833). As Alexander

Hamilton emphasized, “[a]n actual census or enumeration of the people must furnish the rule, a circumstance which effectively shuts the door to partiality or

oppression.” The Federalist No. 36, supra, at 188 (Alexander Hamilton).

In short, both supporters and opponents recognized

that a fixed constitutional standard would limit opportunities for manipulation of our representative democracy. Gouverneur Morris opposed the Census Clause

as “fettering the Legislature too much,” but he recognized that if the mode for taking the Census was “unfixt the Legislature may use such a mode as will defeat

the object[] and perpetuate the inequality.” 1 Records

of the Federal Convention at 571. In response, Edmund Randolph pointed out that “[i]f the danger suggested by Mr. Govr. Morris be real, of advantage being

taken of the Legislature in pressing moments, it was

an additional reason, for tying their hands in such a

manner that they could not sacrifice their trust to momentary considerations.” Id. at 580. This argument

carried the day, and the Framers concluded that “the

periods & the rule of revising the Representation ought

to be fixt by the Constitution.” Id. at 582.

The Constitution’s rule that representatives would

be apportioned based on an “actual Enumeration” of

the people, U.S. Const. art. I, § 2, cl. 3, however, was

undercut by the Three-Fifths Clause, which provided

that, for the purpose of determining representation in

Congress, enslaved persons would be counted as threefifths of a person. “The more slaves the Deep South

could import from the African continent—innocents

born in freedom and kidnapped across an ocean to be

sold on auction blocks—the more seats it would earn

in the American Congress.” Amar, supra, at 90. During the debates in the Convention, Gouverneur Morris

and others argued strenuously against the adoption of

the Three-Fifths Clause, pointedly asking “[u]pon

what principle is it that the slaves shall be computed

in the representation? Are they men? Then make

them Citizens & let them vote? Are they property?

Why then is no other property included?” 2 Records of

the Federal Convention at 222. The upshot of the

Clause was that “the inhabitant of Georgia and S. C.

who goes to the coast of Africa, and . . . tears away his

fellow creatures from their dearest connections &

dam(n)s them to the most cruel bondages, shall have

more votes in a Govt. instituted for protection of the

rights of mankind.” Id.

Despite these arguments, the Convention approved

the Three-Fifths Clause, which it deemed a compromise necessary to ensure the Constitution’s ratification. Nearly 80 years later, following a bloody civil war

fought over our nation’s original sin of slavery, the

Framers of the Fourteenth Amendment would revisit

the Constitution’s system of representation in the

wake of emancipation and abolition, as the next Section discusses.

II. The Fourteenth Amendment Reaffirmed the

Constitutional Obligation To Count All Persons, Citizen and Non-Citizen Alike.

With the adoption of Section 2 of the Fourteenth

Amendment, which provides that “Representatives

shall be apportioned among the several States according to their respective numbers, counting the whole

number of persons in each State, excluding Indians not

taxed,” U.S. Const. amend XIV, § 2, the Founding generation’s commitment to equal representation for all

as determined by a national count of all persons was

finally realized. Yet it took seven months of heated

debate for this guarantee of equal representation for

all persons to emerge. During the debates over the

Fourteenth Amendment, many in Congress sought a

drastic change in our constitutional principle of equal

representation, arguing that only citizens or voters

should be counted in determining representation. The

Framers of the Fourteenth Amendment decisively rejected those arguments and reaffirmed total population as the Constitution’s basis for representation. Evenwel, 136 S. Ct. at 1128. As Jacob Howard explained

in introducing the Fourteenth Amendment, “numbers,” that is, total population, is “the most just and

satisfactory basis, and this is the principle upon which

the Constitution itself was originally framed, that the

basis of representation should depend upon numbers;

and such . . . is the safest and most secure principle

upon which the Government can rest. Numbers, not

voters; numbers, not property; this is the theory of the

Constitution.”

2767.

Cong. Globe, 39th Cong., 1st Sess.

When the Thirty-Ninth Congress met in December

1865, questions of representation were front and center. With the Three-Fifths Clause a nullity and the

full personhood of formerly enslaved African Americans recognized for the purpose of representation, the

Framers of the Fourteenth Amendment were concerned that the Southern states would gain an ill-gotten windfall: far more representation in Congress and

in the Electoral College than they had before they seceded from the Union. See, e.g., id. at 357 (“Shall the

death of slavery add two fifths to the entire power

which slavery had when slavery was living?”). As the

Joint Committee on Reconstruction, which was tasked

with drafting the Fourteenth Amendment, explained,

“[t]he increase of representation necessarily resulting

from the abolition of slavery was considered the most

important element in the questions arising out of the

changed condition of affairs, and the necessity for

some fundamental action in this regard seemed imperative.” Report of the Joint Committee on Reconstruction, at the First Session Thirty-Ninth Congress xiii

(1866).

During debates over the Fourteenth Amendment,

many urged a fundamental change in constitutional

principles of equal representation, insisting that “representation shall be based on citizens of the United

States who may be male adult voters” so that “every

voter should be equal in political power all over the

Union.” Cong. Globe, 39th Cong., 1st Sess. 404. Some

even called for overhauling the Census Clause and

putting in its place a “true census of the legal voters.”

Id. at 10 (1865). But as this Court has recognized,

“[v]oter-based apportionment proponents encountered

fierce resistance . . . . Much of the opposition was

grounded in the principle of representational equality.” Evenwel, 136 S. Ct. at 1128. Supporters of the

Fourteenth Amendment argued that such a change in

our Constitution’s system of representation would be

“an abandonment of one of the oldest and safest landmarks of the Constitution” and would “introduce[] a

new principle in our Government, whose evil tendancy

and results no man can measure to-day.” Cong. Globe,

39th Cong., 1st Sess. 377. Instead, the Reconstruction

Framers insisted on “leav[ing] the primary basis of

representation where it was placed by our fathers, the

whole body of the people.” Id. at 385.

Particularly relevant here, Representative John

Bingham argued that it would be unwise to “strike

from the basis of representation the entire immigrant

population not naturalized,” observing that “[u]nder

the Constitution as it now is and as it always has been,

the entire immigrant population of this country is included in the basis of representation.” Id. at 432. In

his view, the “whole immigrant population should be

numbered with the people and counted as part of

them.” Id.; id. at 411 (arguing that representation

based on number of voters “takes from the basis of representation all unnaturalized foreigners”). Others

made similar arguments, insisting that representation

should be based “on the largest basis of population,

counting every man, woman, and child,” id. at 1280,

and that “the whole population is represented; that

although all do not vote, yet all are heard. That is the

idea of the Constitution,” id. at 705. The Fourteenth

Amendment’s proponents refused to “throw[] out of the

basis at least two and a half millions of unnaturalized

foreign-born men and women,” insisting that “[a] community may be represented, every man in the community may be represented, and every woman and child

in the community may be represented, and yet not

every man twenty-one years of age be a voter.” Id. at

1256, 1279-80. “All the people, or all the members of a

State or community, are equally entitled to protection;

they are all subject to its laws; they must all share its

burdens, and they are all interested in its legislation

and government.” Id. at 2962.

These proponents of equal representation ultimately carried the day, and Congress adopted the

Fourteenth Amendment, insisting that total population, not citizen or voter population, was the basis for

our Constitution’s system of representation. The

Fourteenth Amendment, which was approved by the

people and became a part of the Constitution in 1868,

reaffirmed that our Constitution’s system of equal representation for all depends on a count of the nation’s

entire population, including noncitizens. As this history shows, the purpose of the Census has never been

to count just citizens, but rather to count “the whole

body of the people.” Id. at 385.

III. The Census Act Prohibits the Addition of

New Census Questions Where the Relevant

Information May Be Gathered Using Existing Records.

As this history shows, the Constitution mandates a

count of all persons, citizen and noncitizen alike, for

the purpose of apportioning the House of Representatives in a manner that ensures equal representation

for all. Reflecting the importance of the constitutionally mandated count of all persons, Congress has used

its express power to regulate the “Manner” of the Census to limit the authority of the Secretary of Commerce

to add new questions to the Census. U.S. Const., art.

I, § 2, cl. 3.

Congress has done this, in part, through Section 6

of the Census Act, which contains three separate

provisions. First, Section 6(a) addresses the authority

of the Secretary of Commerce to obtain records held by

other parts of the federal government, providing that

“[t]he Secretary, whenever he considers it advisable,

may call upon any other department, agency, or establishment of the Federal Government, or of the government of the District of Columbia, for information pertinent to the work provided for in this title.” 13 U.S.C.

§ 6(a). Second, Section 6(b) addresses the Secretary’s

authority to obtain records held by state or local governments, authorizing “[t]he Secretary” to “acquire,

by purchase or otherwise, from States, counties, cities,

or other units of government, or their instrumentalities, or from private persons and agencies, such copies

of records, reports, and other material as may be required for the efficient and economical conduct of the

censuses and surveys provided for in this title.” Id.

§ (6)(b). Third, and finally, Section 6(c) provides that

“[t]o the maximum extent possible and consistent with

the kind, timeliness, quality and scope of the statistics

required, the Secretary shall acquire and use information available from any source referred to in subsection (a) or (b) of this section instead of conducting

direct inquiries.” Id. § 6(c).

As the plain language of Section 6(c) reflects, the

Secretary “shall acquire and use” administrative records to satisfy its information-gathering needs “[t]o the

maximum extent possible” rather than “conducting direct inquiries.” Id. This language is phrased in mandatory terms, imposing a “nondiscretionary duty” on

the Secretary of Commerce to use administrative records where feasible. Murphy v. Smith, 138 S. Ct. 784,

787 (2018). Congress imposed this limitation to “reduc[e] respondent burden,” H.R. Conf. Rep. 94-1719, at

10 (1976), and to ensure that the Secretary of Commerce “conduct[s] a census that is accurate and that

fairly accounts for the crucial representational rights

that depend on the census and the apportionment,”

Franklin v. Massachusetts, 505 U.S. 788, 820 (1992)

(Stevens, J., concurring in part and concurring in the

judgment). It therefore prevents the Secretary of Commerce from adding questions to the Census that might

deter participation when the information could be obtained through existing records. And it prevents the

Secretary from adding questions to the Census that

might bias the count and thereby manipulate the constitutionally required count of all persons. As the text

of the law reflects, Congress was concerned that adding new questions might impose too great a burden on

respondents or limit their willingness to participate in

the Census. The solution, Congress concluded, was to

insist that the Secretary of Commerce use administrative records, to the maximum extent possible, to gather

any additional information he or she might want.

This statutory command puts the thumb firmly on

the scale against adding new questions to the Census

when, considering the character of the “statistics required,” existing records can be used to supply the information in question. 13 U.S.C. § 6(c). Indeed, even

if the federal government does not itself possess the

relevant information, the Census Act directs the Secretary to “acquire” those records rather than add new

“direct inquiries” to the Census. Id. In sum, “[t]o the

maximum extent possible,” the Secretary must “acquire and use” pre-existing records rather than “conducting direct inquiries” which could deter participation and detract from the count of all persons—the sole

question the Constitution expressly mandates. Id.

As the record reflects, in adding a citizenship question, Secretary Ross ignored Section 6(c) entirely. Secretary Ross never gave any explanation—much less a

reasoned one—regarding how the addition of the

citizenship question could be squared with Congress’s

command to “acquire and use” administrative records

“[t]o the maximum extent possible.” Id. Indeed, Secretary Ross analyzed the question whether to add a direct inquiry asking all persons to divulge their citizenship status as if Section 6(c) simply did not exist. In

effect, by this critical omission, Secretary Ross read a

critical provision out of the Census Act—the very Act

he was charged with enforcing. This, of course, transgressed long settled principles that demand that agencies act in accord with the rule of law. See Utility Air

Reg. Grp. v. EPA, 573 U.S. 302, 328 (2014) (“[A]n

agency may not rewrite clear statutory terms to suit

its own sense of how the statute should operate.”);

Barnhart v. Sigmon Coal Co., 534 U.S. 438, 462 (2002)

(“We will not alter the text in order to satisfy the policy

preferences of the Commissioner.”); Peters v. Hobby,

349 U.S. 331, 345 (1955) (“Agencies . . . must of course

be free to give reasonable scope to the terms conferring

their authority. But they are not free to ignore plain

limitations on that authority.”); Caring Hearts Pers.

Home Servs., Inc. v. Burwell, 824 F.3d 968, 970 (10th

Cir. 2016) (Gorsuch, J.) (“For surely one thing no

agency can do is apply the wrong law to citizens who

come before it, especially when the right law would appear to support the citizen and not the agency.”).

The Department of Justice offers two arguments

to justify Secretary Ross’s flouting of Section 6(c).

Both are meritless.

First, the Department insists that Section 6(c)’s requirement that the Secretary “shall acquire and use”

administrative records “[t]o the maximum extent possible” rather than “conducting direct inquiries,” 13

U.S.C. § 6(c), contains “no judicially manageable

standards to evaluate compliance with its terms.”

Pet’rs Br. 45-46. This ignores the text enacted by

Congress, which imposes a legal duty on the Secretary

of Commerce to use administrative records “[t]o the

maximum extent” possible, 13 U.S.C. § 6(c), a phrase

Congress often uses to constrain governmental action,

see 16 U.S.C. § 1456(c)(1)(A) (Coastal Zone Management Act); 20 U.S.C. § 1412(5)(A) (Individuals with

Disabilities Education Act); 42 U.S.C. § 2000cc-3(g)

(Religious Land Use and Institutionalized Persons Act

of 2000). Instead of giving effect to Section 6(c), the

Department would simply have this Court read it out

of the Census Act, in contravention of this Court’s duty

to “respect the role of the Legislature and take care not

to undo what it has done,” King v. Burwell, 135 S. Ct.

2480, 2496 (2015).

Second, the Department argues that Secretary

Ross’s failure to explicitly consider the limitations contained in Section 6(c) is irrelevant because the provision’s requirements have nonetheless been satisfied.

See Pet’rs Br. 48. But “[t]his line of reasoning contradicts the foundational principle of administrative law

that a court may uphold agency action only on the

grounds that the agency invoked when it took the action.” Michigan v. EPA, 135 S. Ct. 2699, 2710 (2015)

(citing SEC v. Chenery Corp., 318 U.S. 80, 87 (1943)).

The Secretary’s decision in this case “‘must be measured by what [he] did, not by what [he] might have

done.’” Id. at 2711 (quoting Chenery, 318 U.S. at 9394). The Department of Justice can take no solace in

the fact that Secretary Ross considered whether to rely

on administrative records, because it is undisputed

that the Secretary did not consider at all his legal duty

to use those records “[t]o the maximum extent possible,” 13 U.S.C. § 6(c). “Whatever potential reasons the

Department might have given,” the Secretary of Commerce gave “no reasons at all” to justify his conduct

under the Census Act. Encino Motorcars, LLC v.

Navarro, 136 S. Ct. 2117, 2127 (2016). If federal agencies were permitted to engage in the kind of creative

reconstruction of agency action that the Department

offers here, it would render Chenery a nullity.

In sum, because Secretary Ross ran roughshod

over Congress’s clear directive to “acquire and use” administrative records “[t]o the maximum extent possible,” 13 U.S.C. § 6(c), his order must be set aside.

IV. The Goal of Enforcing the Voting Rights Act

Does Not Justify Ignoring the Requirements

of the Constitution and the Census Act.

Rather than follow his constitutional obligation to

ensure an “actual Enumeration” of the people, U.S.

Const. art. I, § 2, cl. 3, and his duty under the Census

Act to avoid “direct inquiries” to the “maximum extent

possible,” 13 U.S.C. § 6(c), the Secretary insisted that

a citizenship question was necessary to better enforce

the Voting Rights Act. This flimsy rationale—which

was never mentioned at all until Secretary Ross engineered DOJ’s request for a citizenship question—cannot survive even the most cursory review.

First, the Secretary has no expertise with respect

to the Voting Rights Act and no authority to enforce it.

See Epic Sys. Corp., 138 S. Ct. at 1629. Thus, this

Court must exercise its own judgment in determining

whether the addition of this question is necessary. See

id.; see also id. (the Secretary should not have “bootstrap[ped] [him]self into an area in which [he] has no

jurisdiction” (quoting Adams Fruit Co. v. Barrett, 494

U.S. 638, 650 (1990))).

Second, since the passage of the Voting Rights Act

in 1965, the Census has never asked all persons to report their citizenship status. Such data is not necessary to enforce the Voting Rights Act. John Gore, the

primary author of the Department of Justice request

for the citizenship question, has admitted as much.

App. Cert. 94a-95a (concession that “‘CVAP data collected through the census questionnaire is not necessary for DOJ’s VRA enforcement efforts’” (citation

omitted)).

Indeed, for the last 53 years—until this Administration’s eleventh-hour proposal to add a citizenship

question to the 2020 Census—no one has ever suggested that enforcement of the Voting Rights Act was

hampered by the failure of the Census Bureau to ask

all persons residing in the United States to divulge

their citizenship status. The members of Congress

who wrote the Voting Rights Act and its amendments

have never so much as suggested that the Census

should ask all persons in the country to provide their

citizenship status in order to ensure proper enforcement of the Act. Nor have the civil rights lawyers or

Department of Justice lawyers who bring lawsuits to

enforce the Voting Rights Act, or the state and local

governmental entities that defend their electoral practices against Voting Rights Act challenges. See, e.g.,

Progress Rep. on the 2020 Census: Hearing Before the

H. Comm. on Oversight & Gov’t Reform, 115th Cong.

14 (May 8, 2018) (testimony of Professor Justin Levitt)

(“Despite a deep commitment to enforcing the Voting

Rights Act . . . we never requested that the decennial

enumeration include a question relating to citizenship.

Nor had the Civil Rights Division of any Justice Department, under any Administration, for the previous

53 years.”). The citizenship question is a solution in

search of a problem. For good reason, the district court

concluded that there was “no evidence in the Administrative Record” that better citizenship data was

needed to enforce the Voting Rights Act and, in fact,

there was “plenty of evidence to the contrary.” App.

Cert. 295a.

Third, citizenship data—which is just one of many

pieces of evidence currently used to prove a violation

of the Voting Rights Act—is already available through

the American Community Survey, and litigants and

courts have been using this data to evaluate Voting

Rights Act claims for decades. “Although [this] data

may not be perfectly accurate, it is routinely relied

upon in § 2 cases.” Montes v. City of Yakima, 40 F.

Supp. 3d 1377, 1393 (E.D. Wash. 2014). Further, if the

goal was to obtain additional data for courts and litigants to use to resolve voting rights controversies, Secretary Ross could have used administrative records to

do so. Voting rights enforcement did not require jettisoning the Census Act’s command that administrative

records be used to the “maximum extent possible.”

13 U.S.C. § 6(c).

Fourth, although the American Community Survey

data is not perfect, the data that will result from the

addition of this citizenship question will, as the district

court found, almost certainly be even worse. Because

“hundreds of thousands—if not millions—of people

will go uncounted in the census if the citizenship question is included,” App. Cert. 9a, it will produce inaccurate data, which will skew how courts evaluate voting

rights claims. The result will be to hurt the very communities the Voting Rights Act was enacted to protect.

In sum, the citizenship question will produce a disproportionate undercount of minority communities,

which will make it harder for them to claim the Voting

Rights Act protections. Thus, rather than aiding enforcement of the Voting Rights Act, addition of the citizenship question will actually undermine the goal of

enhanced voting rights enforcement. The Secretary’s

proffered justification thus provides no support for the

addition of the citizenship question.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be affirmed.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

DAVID H. GANS

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW

Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amici Curiae

April 1, 2019

* Counsel of Record

APPENDIX:

LIST OF AMICI

U.S. Senate

Schatz, Brian

Senator of Hawai‘i

Bennet, Michael F.

Senator of Colorado

Blumenthal, Richard

Senator of Connecticut

Booker, Cory A.

Senator of New Jersey

Brown, Sherrod

Senator of Ohio

Cardin, Benjamin L.

Senator of Maryland

Coons, Christopher A.

Senator of Delaware

Dorgan, Byron

Former Senator of North Dakota

Duckworth, Tammy

Senator of Illinois

Durbin, Richard J.

Senator of Illinois

Feinstein, Dianne

Senator of California

LIST OF AMICI – cont’d

Gillibrand, Kirsten

Senator of New York

Harris, Kamala D.

Senator of California

Hart, Gary

Former Senator of Colorado

Hirono, Mazie K.

Senator of Hawai‘i

Kaine, Tim

Senator of Virginia

Kerry, John

Former Senator of Massachusetts

Klobuchar, Amy

Senator of Minnesota

Levin, Carl

Former Senator of Michigan

Merkley, Jeffrey A.

Senator of Oregon

Reed, Jack

Senator of Rhode Island

Udall, Mark

Former Senator of Colorado

Udall, Tom

Senator of New Mexico

LIST OF AMICI – cont’d

Whitehouse, Sheldon

Senator of Rhode Island

Wirth, Timothy E.

Former Senator of Colorado

Wyden, Ron

Senator of Oregon

U.S. House of Representatives

Berman, Howard

Former Representative of California

Edwards, Mickey

Former Representative of Oklahoma

Morella, Constance

Former Representative of Maryland

Schneider, Claudine

Former Representative of Rhode Island

Smith, Peter

Former Representative of Vermont

Waxman, Henry A.

Former Representative of California

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.