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

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UNITED STATES DEPARTMENT OF COMMERCE, ET AL.,

Petitioners,

STATE OF NEW YORK, ET AL.,

Respondents.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

BRIEF OF BUSINESSES AND BUSINESS

ORGANIZATIONS AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

STUART F. DELERY

ALEXANDER H. SOUTHWELL

Counsel of Record

LEE R. CRAIN

OSHUA

M. WESNESKI

GIBSON, DUNN & CRUTCHER LLP

IBSON

DUNN & CRUTCHER LLP

200 Park Avenue

1050

Connecticut

Avenue, N.W.

New York, NY 10166

Washington, D.C. 20036

(202) 887-3650

sdelery@gibsondunn.com

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ......................................................... 3

ARGUMENT ............................................................... 5

Inaccurate Census Data Will Harm

Businesses That Rely On The Census

For Marketing, Product Development,

Operations, And Other Purposes ................. 10

A. Inaccurate Census Data Will

Harm Businesses That Use Census

Data In Deciding Where To Open

New Locations ........................................ 11

B. Inaccurate Census Data Will

Harm Businesses That Use Census

Data In Product Development,

Marketing, And Placement .................... 14

C. Inaccurate Census Data Will

Impair The Accurate And

Equitable Allocation Of Federal

Support ................................................... 16

II. Inaccurate Census Data Will Impact

Businesses More Substantially As

They Become Increasingly DataDriven ........................................................... 21

CONCLUSION .......................................................... 25

TABLE OF AUTHORITIES

Page(s)

Cases

Bode v. Nat’l Democratic Party,

452 F.2d 1302 (D.C. Cir. 1971) .............................. 6

California v. Ross,

No. 18-cv-1865, 2019 WL 1052434

(N.D. Cal. Mar. 6, 2019) ................................... 8, 10

Colo. Fire Sprinkler, Inc. v. NLRB,

891 F.3d 1031 (D.C. Cir. 2018) .............................. 8

Fed’n for Am. Immigration Reform v.

Klutznick,

486 F. Supp. 564 (D.D.C. 1980) ............................. 9

Genuine Parts Co. v. EPA,

890 F.3d 304 (D.C. Cir. 2018) ................................ 8

Islander E. Pipeline Co. v. Conn. Dep’t

of Envtl. Prot.,

482 F.3d 79 (2d Cir. 2006) ..................................... 8

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.

State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983) .............................................. 7, 8

New York v. U.S. Dep’t of Commerce,

351 F. Supp. 3d 502 (S.D.N.Y. 2019) .. 5, 7, 8, 9, 10,

........................................................................ 11, 20

Utah v. Evans,

536 U.S. 452 (2002) ................................................ 5

iii

Wesberry v. Sanders,

376 U.S. 1 (1964) .................................................... 6

Wisconsin v. City of New York,

517 U.S. 1 (1996) .............................................. 5, 17

Statutes

13 U.S.C. § 6(c) ............................................................ 8

13 U.S.C. § 9(a) ............................................................ 4

13 U.S.C. § 141(a) ........................................................ 7

13 U.S.C. § 141(f)......................................................... 8

15 U.S.C. § 1512 .......................................................... 7

26 U.S.C. § 45D(e) ..................................................... 16

29 U.S.C. § 3162 ........................................................ 18

29 U.S.C. § 3172 ........................................................ 18

29 U.S.C. § 3242(a) .................................................... 18

Other Authorities

154 Cong. Rec. H4890 (June 4, 2008) ......................... 6

Act Now to Save the 2020 Census,

Bloomberg Opinion (Aug. 11, 2017),

https://bloom.bg/2vUz64R .................................... 14

A.J. Agrawal, Why Data Is Important

for Companies and Why Innovation

Is On the Way, Inc. (Mar. 24, 2016),

https://bit.ly/2qY77iM .......................................... 22

Syed Riaz Ahmed, Applications of Data

Mining in Retail Business,

Proceedings of the Int’l Conference

on Info. Tech.: Coding and

Computing at 2 (2004) ......................................... 21

Alteryx Powers U.S. Census Data

Analysis (Aug. 27, 2012),

https://bit.ly/2JPFxy8 .......................................... 22

Ass’n of Nat’l Advertisers, ANA

Members Oppose Addition of

Citizenship Question for 2020 Census

(June 12, 2018),

https://bit.ly/2U7TwTH .................................. 15, 23

Census Data Trends, Zillow Blogs (Sept.

13, 2006), https://bit.ly/2VSEkr2 ......................... 24

Claritas Demographic Update

Methodology, Claritas (Sept. 2006),

https://bit.ly/2tZK865; .......................................... 22

Comty. Dev. Fin. Insts., New Markets

Tax Credit Program,

https://bit.ly/1H54VZx; ........................................ 16

COSSA Statement on the Impact of a

Citizenship Question in the 2020

Decennial Census (Mar. 27, 2018),

https://bit.ly/2TCtAQ9 ........................................... 4

Jenny Dinnen, 3 Ways You Can Use

Census Data, MacKenzie

Corporation (Oct. 23, 2013),

https://bit.ly/2NWy5Q5 ........................................ 12

EPA, Learn About the Water Pollution

Control (Section 106) Grant Program

(Jan. 19, 2018),

https://bit.ly/2EUinRj ........................................... 19

Esri Demographics, Census and ACS,

https://bit.ly/2EMfhic ........................................... 22

Paul Farhi, For Business, Census Is a

Marketing Data Motherlode, Wash.

Post (Mar. 17, 1990) ............................................... 5

Howard Fienberg, Remove the

Citizenship Question from 2020

Census, Says Marketing Research &

Data Analytics Industry, Insights

Ass’n (Aug. 7, 2018),

https://bit.ly/2OVzhDi .......................................... 24

Tom Foster, Warby Parker Grew to $250

Million in Sales Through Disciplined

Growth. Now It’s Time to Get

Aggressive, Inc. (June 2017),

https://bit.ly/2rZ2HEx .......................................... 12

Geolytics, Estimates/Projects,

https://bit.ly/2Wh6Cf0 .......................................... 22

John H. Heinrichs & Jeen-Su Lim,

Integrating Web-Based Data Mining

Tools with Business Models for

Knowledge Management, 35 Decision

Support Sys. 103, (2003) ...................................... 21

Marisa Hotchkiss & Jessica Phelan,

Uses of Census Bureau Data in

Federal Funds Distribution: A New

Design for the 21st Century 3 (Sept.

2017) ..................................................................... 17

HUD Exchange, CDBG: Community

Development Block Grant Programs,

https://bit.ly/2VSnCb1.......................................... 20

Douglas A. Kysar, Kids & Cul-de-Sacs:

Census 2000 and the Reproduction of

Consumer Culture, 87 Cornell L.

Rev. 853, 862 (2002) ............................. 7, 10, 15, 23

Letter from Nat’l Ass’n of Realtors to

Sen. Claire McCaskill (Feb. 25,

2018), https://bit.ly/2HQ1dHF ............................. 24

Kenneth Prewitt, The American People

Census 2000: Politics and Science in

Census Taking 6 (Russell Sage

Foundation 2003),

https://wapo.st/2NWwjyp ....................................... 6

Melissa Martin, Costs of Starting a

Business: Bricks & Mortar Retail

Startup, StartupNation (June 8,

2006), https://bit.ly/2Cf4vRr ................................ 11

vii

Scott McDonald, A 2020 Census Flop

Would Pose a Danger to U.S.

Businesses, Forbes (Dec. 6, 2017),

https://bit.ly/2Uv6ckz ........................................... 23

Amy Merrick, New Data Will Let

Starbucks Plan Store Openings, Help

Blockbuster Stock Its Videos, Wall

St. J. (Feb. 14, 2001),

https://on.wsj.com/2V0hFck ................................. 11

Mikelyn Meyers & Patricia Goerman,

U.S. Census Bureau, Respondent

Confidentiality Concerns in

Multilingual Pretesting Studies and

Possible Effects on Response Rates

and Data Quality for the 2020

Census 24–25 (May 2018) ...................................... 9

National Research Council,

Modernizing the U.S. Census 297

(1995) ........................................................ 13, 15, 16

William P. O’Hare, Geo. Ctr. on Poverty

and Inequality, Citizenship Question

Nonresponse: A Demographic Profile

of People Who Do Not Answer the

American Community Survey

Citizenship Question 6–7 (Sept.

2018) ....................................................................... 9

viii

Andrew D. Reamer, Counting for

Dollars: The Role of the Decennial

Census in the Geographic

Distribution of Federal Funds 10,

Brookings Inst. (Mar. 9, 2010),

https://brook.gs/2Tz7Bdt ................................ 17, 18

Andrew Reamer, Geo. Wash. Inst. of

Pub. Policy, Counting for Dollars: A

Study of Census-guided Financial

Assistance to Rural America (Oct. 11,

2018), https://bit.ly/2Onk0LO .............................. 24

Report, Council of Economic Advisers,

The Use of Census Data: An

Analytical Review (Apr. 1, 2000),

https://bit.ly/2Tv1PJP ...................................... 4, 15

Chris Rygielski et al., Data Mining

Techniques for Customer

Relationship Management, 24 Tech.

in Soc’y 483 (2002) ............................................... 21

Robert Shapiro, The 2020 Census May

Be Wildly Inaccurate—And It

Matters More Than You Think,

Brookings Inst. (Aug. 31, 2017),

https://brook.gs/2gw9BQY ................................... 16

Greg Sterling, Chipotle Customers Are

Smarter Than McDonald’s And

Other Insights From Smartphone

Data, Mktg. Land (June 24, 2014),

https://mklnd.com/2ESReye................................. 24

SBA, Market Research and Competitive

Analysis, https://bit.ly/2wXJvvw ......................... 10

SBA, Small Business Development

Center, https://bit.ly/1D3081I .............................. 19

Starbucks Corp. Investor Call Tr. (Dec.

5, 2012), https://bit.ly/2UkrxjZ ............................ 11

Richard K. Thomas, Using Demographic

Analysis in Health Services

Planning: A Case Study in

Obstetrical Services, in

Demographics, in Demographics: A

Casebook for Business and

Government 159 (RAND Corp, 1997) .................. 13

U.S. Census Bureau, Census Business

Builder (Dec. 13, 2018),

https://bit.ly/22wd3s0 ........................................... 10

U.S. Dep’t of Educ., Improving Basic

Programs Operated by Local

Educational Agencies (Title I, Part

A), (Oct. 24, 2018),

https://bit.ly/2lQzI5X ........................................... 19

U.S. Fish & Wildlife Serv., State

Wildlife Grant Program – Overview

(Feb. 2, 2018),

https://bit.ly/2CcPMXa ......................................... 19

U.S. Fish & Wildlife Serv., Wildlife

Restoration Program – Overview

(Feb. 2, 2018), https://bit.ly/2BgEZeA ................. 19

United States Census Bureau, Directors

1790 – 1810 (Aug. 2, 2017),

https://bit.ly/2VKtnrs ............................................. 6

Upfront Analytics, Why Census Data Is

Useful for Market Research (May 14,

2015), https://bit.ly/1CS6lnJ ................................ 15

Paul R. Voss, Targeting Wealthy ExWisconsinites in Florida: A Case

Study in Applied Demography, in

Demographics: A Casebook for

Business and Government 109

(Hallie J. Kintner et al. eds., 1997) ..................... 12

Jonathan Weber, Census Data Assists

Business Where It Counts: Accurate

Demographics, L.A. Times (Jan. 2,

1990), https://lat.ms/2NYuuRF ..................... 12, 22

Zillow: Ahead of Its Time or Falling

Behind, Harv. Bus. Sch.: Open

Knowledge by Digital Initiative

(Nov. 18, 2016),

https://bit.ly/2VSEjU0/ ......................................... 24

Constitutional Provisions

U.S. Const. Article I, § 2, cl. 3 ..................................... 4

INTEREST OF AMICI CURIAE1

Amici submit this brief to provide important context regarding how amici and others in the business

community rely on Census data, how the proposed

Citizenship Question will make Census data less reliable, and how inaccurate Census data harms businesses and consumers.

Amici include the following companies from a variety of sectors:

Univision Communications Inc.

Uber Technologies Inc.

Levi Strauss & Co.

Ben & Jerry’s Homemade, Inc.

Warby Parker / JAND, Inc.

Lyft, Inc.

Postmates Inc.

Box, Inc.

Knotel, Inc.

10.

Shutterstock, Inc.

11.

General Assembly Space, Inc.

12.

Casper Sleep Inc.

13.

HealthEZ, Inc. / The Araz Group Inc.

Pursuant to Supreme Court Rule 37.6, counsel for amici curiae states that no counsel for a party authored this brief in whole

or in part, and no party or counsel for a party, or any other person

other than amici curiae or its counsel, made a monetary contribution intended to fund the preparation or submission of this

brief. All parties have consented in writing to the filing of this

brief.

14.

Cummins Inc.

15.

Masimo Corporation

16.

Workplace Options, LLC

17.

The Cause Collection

18.

Mara Hoffman Inc.

19.

Lush Cosmetics LLC

20.

Opening Ceremony, LLC

21.

Expa, LLC

In addition, amici include several business organizations or associations. These organizations represent a diversity of company sizes, types, and geographical locations, spanning the entire United

States. A brief description of each organization is below.

22.

Tech:NYC—A nonprofit organization representing technology companies nationwide.

Tech:NYC has approximately 650 member companies, including some of the most prominent

and successful tech companies in the nation.

23.

Minneapolis Regional Chamber of Commerce—

A policy advocate supporting businesses in the

Minneapolis area, including some of the nation’s largest and most successful companies,

on a broad range of issues.

24.

Los Angeles Area Chamber of Commerce—An

organization representing more than 1,650

member businesses across Los Angeles County,

improving economic prosperity and quality of

life for the Los Angeles region.

25.

The Insights Association—An organization representing the interests of the marketing research and data analytics community. The Insights Association is the leading voice, resource

and network of the marketing research and

data analytics community.

Amici’s interests in this case are strong. First,

amici, like many businesses, rely on Census data to

make a variety of decisions, including where to put

new locations, how to market their products, or which

products will be successful in a given market. Businesses also have a broader interest in ensuring that

the communities that they serve receive needed federal support—in terms of education, infrastructure,

and other support—in order to provide an environment ripe for new development and innovation. All of

these things depend on the availability of accurate

Census data. The Citizenship Question threatens to

compromise the accuracy of that data.

Second, amici have a broader interest in protecting their employees, customers, and business partners

from the negative effects of a Citizenship Question.

As discussed below, there is ample evidence that the

addition of a Citizenship Question will depress Census response rates, particularly among immigrant

and minority communities. An inaccurate Census

count will harm businesses and the communities in

which they serve.

For the above reasons, amici have a substantial

interest in this litigation.

INTRODUCTION AND SUMMARY OF

ARGUMENT

Accurate Census data is important to businesses.

Companies use that data to plan new locations and

future projects, and they and their communities rely

on important federal funding that is allocated based

on Census data. But the Census Bureau’s proposed

Citizenship Question threatens to reduce response

rates, particularly by naturalized citizens and immigrants, and thereby to impair the accuracy of the Census. The inaccuracy resulting from the Citizenship

Question will harm businesses, because Census data

can play a role in many decisions by large and small

businesses alike.

The United States Constitution requires an “actual Enumeration” of the people to allow the “Representatives” to “be apportioned among the several

States which may be included within this Union, according to their respective Numbers.” U.S. Const. art.

I, § 2, cl. 3. But the importance of accurate Census

data extends well beyond its constitutional purpose of

apportioning congressional representation. Census

data is made public, see 13 U.S.C. § 9(a), and social

scientists have called Census responses “an irreplaceable source of data for researchers,” Consortium of Social Science Ass’ns, COSSA Statement on the Impact

of a Citizenship Question in the 2020 Decennial Census (Mar. 27, 2018), https://bit.ly/2TCtAQ9. “Today,

policy makers at all levels of government, as well as

private businesses, households, researchers, and nonprofit organizations, rely on an accurate census in

myriad ways that range far beyond the single fact of

how many people live in each state.” Report, Council

of Economic Advisers, The Use of Census Data: An Analytical Review (Apr. 1, 2000), https://bit.ly/2Tv1PJP.

While businesses have a number of resources at

their disposal to help them understand the characteristics, preferences, and distribution of their customers, the Census is a particularly important tool for

many purposes. See Paul Farhi, For Business, Census

Is a Marketing Data Motherlode, Wash. Post (Mar. 17,

1990), https://wapo.st/2JOPI67. In the words of a

large group of current and former business leaders—

“[t]he decennial Census provides critical data that informs decision-making in both the private and public

sectors,” and which is regularly used “to determine

where to locate stores and facilities, find qualified

workers, and market products and services,” to name

just a few of its many crucial applications. A.R.1252–

54, Public Comment – Ready Nation (Mar. 22, 2018).2

But as the Census Bureau’s own officials have concluded (backed by research the Bureau itself recently

conducted), asking about a respondent’s citizenship as

part of the United States Census will result in reduced

response rates, particularly by naturalized citizens

and immigrants, and will thus yield inaccurate census

data. See New York v. U.S. Dep’t of Commerce, 351 F.

Supp. 3d 502, 578–83 (S.D.N.Y. 2019). That resulting

inaccuracy will be harmful to amici and others in the

business community.

ARGUMENT

An accurate Census is a cornerstone of our democracy. Knowing that the “calculation of populations

could be and often were skewed for political or financial purposes,” the Framers “chose to make an ‘actual

Enumeration’ part of our constitutional structure” in

order “to preclude the availability of methods that permit political manipulation.” Utah v. Evans, 536 U.S.

452, 500, 507, 510 (2002) (Thomas, J., concurring in

part and dissenting in part); see also Wisconsin v. City

Because the parties and the Court have dispensed with the

printing of the joint appendix, citations to “A.R.” refer to the administrative record designations in the lower court.

of New York, 517 U.S. 1, 6 (1996) (“[E]ach [decennial

Census] was designed with the goal of accomplishing

an ‘actual Enumeration’ of the population.”). The

Census was an integral part of the design of the new

government at the Founding—an attempt to ensure

that the House of Representatives would be based on

proportional representation, itself essential to the

“Great Compromise” that yielded our bicameral legislature. See Wesberry v. Sanders, 376 U.S. 1, 12–14

(1964); Bode v. Nat’l Democratic Party, 452 F.2d 1302,

1307 (D.C. Cir. 1971).

Indeed, our nation’s earliest leaders recognized

the importance of Census accuracy. For instance,

when Thomas Jefferson supervised the nation’s first

Census as Secretary of State in 1790, he expected a

population count of at least 4 million people. Yet the

Census ultimately revealed a nation of just 3.9 million

people, much to the surprise and concern of Jefferson

and President George Washington. Jefferson thought

that the Census had significantly undercounted the

population, perhaps by several hundred thousand residents. United States Census Bureau, Directors 1790

– 1810 (Aug. 2, 2017), https://bit.ly/2VKtnrs. And

Washington, who had expected a population count

about five percent higher, was similarly chagrined,

blaming the “‘inaccuracy’ on avoidance by some residents as well as on negligence by those responsible for

taking the census.” Kenneth Prewitt, The American

People Census 2000: Politics and Science in Census

Taking 6 (Russell Sage Foundation 2003),

https://wapo.st/2NWwjyp. By making these concerns

about the Census public, then-Secretary Jefferson

“helped alert the Nation to the importance of accuracy

in the numbers used to describe the society.” 154

Cong. Rec. H4890 (June 4, 2008) (statement of Rep.

Johnson).

In the 1850s, Congress expanded the Census’s traditional role and included a number of questions on

the Census aimed at learning more about the characteristics of the U.S. population. See Douglas A. Kysar,

Kids & Cul-de-Sacs: Census 2000 and the Reproduction of Consumer Culture, 87 Cornell L. Rev. 853, 862

(2002). At the turn of the twentieth century, as the

Census grew more complex, Congress created the

Census Bureau, which opened its doors in 1902. See

Permanent Census Act, Pub. L. No. 27 (1902). By that

time, the Census’s mission to “foster, promote, and develop the foreign and domestic commerce” was codified, 15 U.S.C. § 1512, and the Census Bureau’s energies “were directed toward the improvement of business statistics, . . . and toward the collection of data

that might foster improvements in the national economy without the heavy hand of government ‘planning,’” Kysar, supra, at 862–63 (some internal quotation marks omitted). To that end, Congress authorized the Secretary of Commerce to “obtain . . . census

information as necessary.” 13 U.S.C. § 141(a). But as

the district court recognized, the Secretary does not

have unfettered discretion in carrying out that task.

Instead, his decisions regarding the Census are judicially reviewable, and so a decision of the Secretary to

add or remove a Census question must comply with

all relevant laws, including the APA. See Dep’t of

Commerce, 351 F. Supp. 3d at 628–30.

In assessing the impact of various questions, the

Secretary, the Commerce Department, and the Census Bureau must take into account the impact of the

question on the conduct of the Census and on various

communities. Cf. Motor Vehicle Mfrs. Ass’n of U.S.,

Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983). A failure to consider an “important aspect of

the problem,” such as “evidence that runs counter to

the agency’s decision,” will render agency action arbitrary and capricious. Genuine Parts Co. v. EPA, 890

F.3d 304, 307 (D.C. Cir. 2018) (internal quotation

marks omitted). Courts have not hesitated to vacate

agency action where the agency failed to meet this

mandate. See, e.g., Colo. Fire Sprinkler, Inc. v. NLRB,

891 F.3d 1031, 1041 (D.C. Cir. 2018); Islander E. Pipeline Co. v. Conn. Dep’t of Envtl. Prot., 482 F.3d 79, 101

(2d Cir. 2006).

Both district courts that have reviewed the Secretary’s decision have concluded that the Secretary

failed in this obligation. The United States District

Court for the Southern District of New York concluded

that the Secretary of Commerce, in deciding to adopt

the Citizenship Question, violated the Administrative

Procedure Act (“APA”) in three ways. First, the Secretary violated 13 U.S.C. §§ 6(c) and 141(f) by failing

to use information from administrative records to the

maximum extent possible and by failing to include citizenship as a subject to be included on the 2020 Census in his report to Congress. Dep’t of Commerce, 351

F. Supp. 3d at 636–47. Second, the Secretary’s decision was arbitrary and capricious because he “‘entirely failed to consider an important aspect of the

problem, offered an explanation for its decision that

runs counter to the evidence before the agency, or is

so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’” Id.

at 647–60 (quoting State Farm , 463 U.S. at 43). And

third, the Secretary’s offered rationale was pretextual. Id. at 660–64. On March 6, 2019, the United

States District Court for the Northern District of California similarly ruled that the Citizenship Question

violated the APA, as well as the Enumeration Clause.

See California v. Ross, No. 18-cv-1865, 2019 WL

1052434 (N.D. Cal. Mar. 6, 2019).

All available evidence confirms that the Citizenship Question will impair the accuracy of the Census.

See Dep’t of Commerce, 351 F. Supp. 3d at 594. For

decades, the Census Bureau has recognized the negative impact a Citizenship Question would have, telling

a court in 1980 that “any effort to ascertain citizenship

will inevitably jeopardize the overall accuracy of the

population count” because “[q]uestions as to citizenship are particularly sensitive in minority communities and would inevitably trigger hostility, resentment

and refusal to cooperate.” Fed’n for Am. Immigration

Reform v. Klutznick, 486 F. Supp. 564, 568 (D.D.C.

1980). And even recent research by the Census Bureau confirms that multilingual Census respondents

fear their answers will not be kept confidential, and

may be reluctant to answer certain questions for that

reason. See Mikelyn Meyers & Patricia Goerman,

U.S. Census Bureau, Respondent Confidentiality Concerns in Multilingual Pretesting Studies and Possible

Effects on Response Rates and Data Quality for the

2020 Census 24–25 (May 2018). Indeed, research

shows that respondents are becoming more hesitant

to answer a comparable question about citizenship included in the American Community Survey. See William P. O’Hare, Geo. Ctr. on Poverty and Inequality,

Citizenship Question Nonresponse: A Demographic

Profile of People Who Do Not Answer the American

Community Survey Citizenship Question 6–7 (Sept.

2018).

Lower response rates mean less accurate Census

data, which will have negative effects on amici and

other businesses that use Census data in a variety of

ways to plan their operations and products.

INACCURATE CENSUS DATA WILL HARM BUSINESSES THAT RELY ON THE CENSUS FOR MARKETING, PRODUCT DEVELOPMENT, OPERATIONS,

AND OTHER PURPOSES

Businesses have long used Census data in a variety of strategic ways to plan their operations, enhance

their understanding of their customer base, and develop products that meet consumer needs. See Kysar,

supra, at 854–56. The Census Bureau itself recognizes the value businesses derive from the types of

data the Census provides; it even provides companies

with a “Census Business Builder,” which is “a suite of

services that provide selected demographic and economic data from the Census Bureau tailored to specific types of users in a simple to access and use format.” U.S. Census Bureau, Census Business Builder

(Dec. 13, 2018), https://bit.ly/22wd3s0. The Bureau

notes that this data can “help you start or grow a business or understand the business landscape for a region.” Id.; see also SBA, Market Research and Competitive Analysis, https://bit.ly/2wXJvvw.

Assuming the Census Bureau’s own “conservative

estimate” is accurate that the Citizenship Question

will result in a 5.8 percent decline in Census response,

Ross, 2019 WL 1052434, at *28; Dep’t of Commerce,

351 F. Supp. 3d at 566, 580, the 2020 Census would

result in significantly flawed data, undercounting millions of people. This undercounting would be particularly problematic in the country’s largest markets.

See Ross, 2019 WL 1052434, at *22 (noting that “San

Jose’s percentage of noncitizens is nearly two-and-ahalf times the national percentage”); Dep’t of Commerce, 351 F. Supp. 3d at 588, 595 (“New York City is

a prime example. New York City contains approxi-

mately forty-three percent of the total state population, but approximately seventy-one percent of the

state’s noncitizen population.”); id. (cataloguing largest urban markets affected by even a two percent drop

in response rate). For businesses, undercounting hundreds of thousands or even millions of people matters,

particularly in the context of low-margin industries

where even slight adjustments of data could materially affect the accuracy of projected revenue and costs.

If the Citizenship Question is adopted—rendering

Census data less accurate—each business that uses

Census data for these purposes will be harmed.

A. Inaccurate Census Data Will Harm Businesses That Use Census Data In Deciding

Where To Open New Locations

Businesses rely on Census data when they plan

the placement and construction of new locations or

markets. That data lets businesses maximize the effectiveness of a location and capitalize on a particular

region’s needs or preferences. Building a new location

is a significant undertaking, requiring major capital

investments. See Melissa Martin, Costs of Starting a

Business: Bricks & Mortar Retail Startup, StartupNation (June 8, 2006), https://bit.ly/2Cf4vRr. Mistakes

about where to place a store, warehouse, or other facility can harm not only a business’s overall outlook,

but also the communities that need (or don’t need)

such a facility.

Many retail merchants use Census data to strategically place their stores and other facilities. See Amy

Merrick, New Data Will Let Starbucks Plan Store

Openings, Help Blockbuster Stock Its Videos, Wall St.

J. (Feb. 14, 2001), https://on.wsj.com/2V0hFck; Starbucks Corp. Investor Call Tr. (Dec. 5, 2012),

https://bit.ly/2UkrxjZ (highlighting value of “the demography, the data, the science” in site selection and

new store openings). Some businesses, like amicus

Warby Parker (an innovative brand providing access

to affordable, high-quality eyewear), rely on Census

data to evaluate what makes a market desirable and

where to place stores within a market. See Tom Foster, Warby Parker Grew to $250 Million in Sales

Through Disciplined Growth. Now It’s Time to Get Aggressive, Inc. (June 2017), https://bit.ly/2rZ2HEx. And

amicus Uber Technologies uses Census data to optimize locations for where its JUMP bikes are deployed.

Others look at the Census profile for a new area to see

how it compares with an existing market and to determine whether a new location is likely to generate

more, less, or the same business. See Jonathan Weber, Census Data Assists Business Where It Counts:

Accurate Demographics, L.A. Times (Jan. 2, 1990),

https://lat.ms/2NYuuRF.

A business might use Census data to target a

small location in a state where its customers are most

likely to reside and where a new location could be profitable. See Paul R. Voss, Targeting Wealthy Ex-Wisconsinites in Florida: A Case Study in Applied Demography, in Demographics: A Casebook for Business and

Government 109 (Hallie J. Kintner et al. eds., 1997).

The Census Bureau even provides an interactive population map that businesses can use to examine population data “at the most granular level,” including

“age, race, ethnicity and housing status.” Jenny Dinnen, 3 Ways You Can Use Census Data, MacKenzie

Corporation (Oct. 23, 2013), https://bit.ly/2NWy5Q5.

Without accurate Census data on which to base location decisions, businesses would lose a tool that has

become crucial to their survival and growth.

The effects of inaccurate Census data on a company’s decision of where to place a new location would

harm not only that business, but also its surrounding

community. Accurate data helps businesses take

risks on changing and developing neighborhoods. Unreliable data might mean businesses will open fewer

locations in new communities, depriving businesses of

new markets and communities of new stores or services.

Healthcare providers provide a good example of

this effect because they use Census data to understand community needs. See National Research

Council, Modernizing the U.S. Census 297 (1995). A

hospital can use Census data regarding residents in

the area of a new location to determine how many and

what kind of doctors will likely be needed at that location. See id. This same analysis can be performed to

determine the need for certain health services in a

given area—for example, a region densely populated

with young families will be more in need of obstetrical

or family practice services than a region populated

primarily with retirees. See id. at 298; see also Richard K. Thomas, Using Demographic Analysis in

Health Services Planning: A Case Study in Obstetrical

Services, in Demographics, in Demographics: A Casebook for Business and Government 159, 167–68

(RAND Corp. 1997) (examining the age of women in

an area to determine the need for a new obstetrical

facility). Inaccurate Census data thus may lead to

some communities having inadequate healthcare in

light of business decisions driven by this data, just as

other communities may face an inefficient influx of

healthcare resources beyond what is actually needed.

Census data also allows businesses to learn about

their local communities and work to serve those communities. Amicus Box, Inc., for example, uses Census

data to determine which areas in its community are

in need of volunteer support, and coordinates its employees’ volunteer efforts in those areas.

With a Census whose accuracy is impaired by the

Citizenship Question, businesses will have less ability

to design and build stores and service locations that

meet the needs of local communities. Businesses,

their customers, and the communities they serve will

all suffer.

B. Inaccurate Census Data Will Harm Businesses That Use Census Data In Product

Development, Marketing, And Placement

Inaccurate Census data will also affect the development and marketing of numerous products around

the country. Businesses use Census data to inform

decisions about product development and placement.

A retail business may, for instance, rely on demographic data to determine which products are going to

sell best in which regions, and calibrate each store’s

stock accordingly. See Diane W. Schanzenbach & Michael R. Strain, Act Now to Save the 2020 Census,

Bloomberg

Opinion

(Aug.

11,

2017),

https://bloom.bg/2vUz64R (“If you walk into a Target

store in suburban Florida, the items on the shelves are

different from what is in a Target store in downtown

Washington D.C. Target makes these decisions in

large part using government data.”). As the Association of National Advertisers has explained, “[m]arketing decisions/investments are often made based on

population counts,” and inaccurate data would affect

data businesses “rely on to quantify the marketplace,

and thereby undersize the business opportunity.”

Ass’n of Nat’l Advertisers, ANA Members Oppose Addition of Citizenship Question for 2020 Census (June

12, 2018), https://bit.ly/2U7TwTH.

Entire product lines may even be developed based

on data culled from the Census. See, e.g., The Use of

Census Data: An Analytical Review, supra (noting

that accurate Census data helps “[m]anufacturers of

baby products such as baby food, clothes, diapers, and

toys, and manufacturers of maternity clothes and

greeting cards . . . develop . . . their product lines”).

And even independent market research can be aided

by the Census—market researchers can use Census

data to make accurate inferences about survey answers based on their geographic location or their other

survey responses. See Upfront Analytics, Why Census

Data Is Useful for Market Research (May 14, 2015),

https://bit.ly/1CS6lnJ.

Flawed Census data can also impact customer

outreach. For example, because utility companies often offer lower rates for poorer, elderly, or disabled

customers, utility companies use Census data to determine which areas are most likely to need those special rates and reach out to customers in those areas to

evaluate eligibility. See Modernizing the U.S. Census,

supra, at 297. Cable television companies may use

Census data to target advertising for pay-per-view

events to those areas whose residents are most likely

to purchase the event. See id. at 296. And when a car

manufacturer learned through customer research

that its vehicles were popular with people in the nursing profession, it used data from the Census to tailor

its regional advertising to that demographic. See

Kysar, supra, at 885. Inaccurate Census data would

weaken the ability of businesses to adapt their marketing and outreach strategies to a changing population, resulting in wasted dollars for businesses and

unwanted advertising for customers.

C. Inaccurate Census Data Will Impair The

Accurate And Equitable Allocation Of

Federal Support

The federal government relies on Census data to

allocate and distribute federal support and funding,

and inaccurate Census data threatens to harm businesses and their communities who rely on that support. For example, under the New Market Tax Credit

(“NMTC”)—a federal program designed to stimulate

investment in distressed communities—a business investment may qualify for special tax treatment if it

occurs in an area with certain concentrations of lowor moderate-income households. See Comty. Dev. Fin.

Insts., New Markets Tax Credit Program,

https://bit.ly/1H54VZx; Robert Shapiro, The 2020 Census May Be Wildly Inaccurate—And It Matters More

Than You Think, Brookings Inst. (Aug. 31, 2017),

https://brook.gs/2gw9BQY.3 Or a nonprofit organization, such as a rural health clinic, may use Census

data for a special federal designation based on location and population served. See Modernizing the U.S.

Census, supra, at 298. Businesses rely on Census data

to know whether they will be entitled to federal support, and inaccurate Census data risks depriving businesses of that needed support.

An NMTC-eligible investment must be located in a designated “low-income community,” defined by U.S. Census data as

a Census tract with a poverty rate of at least 20 percent or with

a median family income that does not exceed 80 percent of the

statewide median family income. 26 U.S.C. § 45D(e).

More broadly, the federal government relies on

Census data to allocate and distribute federal funding—to the tune of about $700 billion—and inaccurate

Census data can therefore affect businesses that rely

directly or indirectly on those funds. See A.R.8375,

Public Comment – Coalition of Philanthropic Organizations (Mar. 21, 2018) (“[R]ecent decennial censuses

have resulted in net undercounts of many communities, with consequences for . . . disbursing roughly

$700 billion in federal funds.”). In 2015 alone, the federal government used Census data to distribute over

$675 billion in federal funding to a variety of programs. See Marisa Hotchkiss & Jessica Phelan, Uses

of Census Bureau Data in Federal Funds Distribution:

A New Design for the 21st Century 3 (Sept. 2017) (on

file with the U.S. Census Bureau); see also Wisconsin,

517 U.S. at 5–6 (“Today, census data also have important consequences not delineated in the Constitution: The Federal Government considers census data

in dispensing funds through federal programs to the

States . . . .”). Those billions of dollars were funneled

through 132 different programs, ranging from subsidies for school lunches to historic preservation. See

Hotchkiss & Phelan, supra, at 16–17.

The bulk of Census-guided federal assistance goes

to state governments through a handful of grant programs that aid low-income households and support

highway infrastructure. See Andrew D. Reamer,

Counting for Dollars: The Role of the Decennial Census in the Geographic Distribution of Federal Funds

10,

Brookings

Inst.

(Mar.

2010),

https://brook.gs/2Tz7Bdt.4 In 2008, using Census

In 2008, $261.1 billion was distributed to states through

Medicaid, the largest Census-guided assistance program. See

Reamer, supra, at 10.

data, the federal government distributed over $36 billion in federal funds via the Federal-Aid Highway Program, and distributed an additional $10 billion to

fund other transportation needs. See id. at 11–12.

Businesses have an interest in ensuring that the basic

infrastructure of their communities—including the

availability of accessible and well-kept highways—is

supported by federal funding. That is especially true

for businesses who depend on federally supported

highways for the transportation of goods. And an inaccurate Census threatens the proper allocation of

that funding.

Businesses also have an interest in the federal

funding allocated to other programs. For example,

through the Workforce Innovation and Opportunity

Act (“WIOA”), the federal government subsidizes the

education and workforce training of youths and adults

from disadvantaged backgrounds and areas. See 29

U.S.C. §§ 3162, 3172. The allocation of those subsidies

is determined using the “most recent satisfactory data

from the Bureau of the Census.” 29 U.S.C. § 3242(a).

And some organizations, like amicus General Assembly, enroll students that rely on that federal funding,

or offer programs that are funded by WIOA. The Department of Labor allocated over $7 billion in 2008 on

the basis of Census data, see Reamer, supra, at 13,

some of which went to educational institutions like

amicus General Assembly to provide free training programs to underserved and overlooked talent.

Companies may have more specific interests depending on their size or line of business. For example,

many new businesses have an interest in the federal

funding that goes to Small Business Development

Centers, which receive federal funding to provide

small companies and entrepreneurs with free consulting and training services. See SBA, Small Business

Development Center, https://bit.ly/1D3081I. A local

outdoors-equipment retail store, whose business depends in part on the availability and quality of nearby

outdoor activities, will likely have an interest in ensuring that the surrounding community is receiving

adequate support from federal programs such as the

Wildlife Restoration Program, see U.S. Fish & Wildlife

Serv., Wildlife Restoration Program – Overview (Feb.

2, 2018), https://bit.ly/2BgEZeA (providing funding to

restore, conserve, manage, and enhance wild birds

and mammals and their habitat); see also U.S. Fish &

Wildlife Serv., State Wildlife Grant Program – Overview (Feb. 2, 2018), https://bit.ly/2CcPMXa (providing

funding to develop and implement programs that benefit wildlife and their habitats), and the Water Pollution Control Grant Program, see EPA, Learn About the

Water Pollution Control (Section 106) Grant Program

(Jan. 19, 2018), https://bit.ly/2EUinRj (providing

funding to states and agencies to build and sustain effective water quality programs), both of which rely on

the Census to determine allocation of funding.

Established businesses in communities may also

have a more general interest in ensuring that the communities they serve—and that make up their customer and employee bases—are receiving the needed

federal assistance to which they are entitled. The U.S.

Department of Education, for instance, relies on Census data to allocate funds to educational agencies and

schools with high numbers or percentages of children

from low-income families. See U.S. Dep’t of Educ., Improving Basic Programs Operated by Local Educational Agencies (Title I, Part A), (Oct. 24, 2018),

https://bit.ly/2lQzI5X. The Department of Education

allocated over $10 billion in special education grants

to states in 2008, based in large part on Census data.

See Reamer, supra, at 11. It distributed over $7 billion in Title I grants to local educational agencies during the same time period. Id. Businesses in such a

community, like all members of a community, benefit

from strong educational programs, particularly when

that business depends on an educated local workforce

to staff its facilities. Federal funds are also allocated

through Community Development Block Grant Programs—again on the basis of Census data—to help develop urban communities and improve living and economic conditions. See HUD Exchange, CDBG: Community Development Block Grant Programs,

https://bit.ly/2VSnCb1. Again, businesses benefit

when their communities receive the infrastructure

support they need to thrive. But an inaccurate Census risks misallocating funds to each of these programs, harming businesses and their communities.

***

These varied and documented uses of Census data

are possible only because businesses can depend on

the Census to provide accurate demographic information about customers and to determine how best to

engage in their local communities. As the district

court found, however, the Citizenship Question

threatens to undermine that reliability of Census

data, see Dep’t of Commerce, 351 F. Supp. 3d at 594,

and therefore substantially reduce its value to businesses. If businesses cannot rely on the Census to provide usable, accurate data, they will be hamstrung in

their ability to track and adapt to customers’ changing

needs and preferences. Competitive businesses must

always be evolving to respond to changes in the market, and the Citizenship Question will impede their

ability to do so.

II. INACCURATE CENSUS DATA WILL IMPACT BUSINESSES MORE SUBSTANTIALLY AS THEY BECOME

INCREASINGLY DATA-DRIVEN

Inaccurate Census data would be especially disruptive to businesses today. Companies increasingly

rely on data-driven analytics to provide products and

services that meet customers’ specific needs and

wants. While businesses in the past adopted a more

product-oriented approach—focusing on designing

products they believed customers would want—businesses now operate on a more customer-oriented basis, seeking to understand customers’ needs before

they invest resources into design and implementation.

See Chris Rygielski et al., Data Mining Techniques for

Customer Relationship Management, 24 Tech. in Soc’y

483, 484 (2002). The value of accurate and complete

data is heightened by the need for businesses to respond quickly to changing market conditions and preferences. See Syed Riaz Ahmed, Applications of Data

Mining in Retail Business, Proceedings of the Int’l

Conference on Info. Tech.: Coding and Computing, at

2 (2004). Companies seeking to gain a competitive

edge over their competitors therefore rely on their

ability “to better manage the knowledge regarding the

critical elements of their environment.” John H. Heinrichs & Jeen-Su Lim, Integrating Web-Based Data

Mining Tools with Business Models for Knowledge

Management, 35 Decision Support Sys. 103, 105

(2003).

By way of example, amicus Uber Technologies has

a policy team that uses Census data to conduct research with respect to high-level policy issues implicated by Uber’s business, including issues related to

the impact of Uber’s services on different neighborhoods and communities. This research is important

to Uber’s outreach with respect to its drivers, riders,

and third-party stakeholders. Amicus Box, Inc. leverages Census data through tailored reports that Box

receives from third-party vendors compiling salary

bands for different geographic areas. Census data has

been, and will continue to be, integral to this modern

focus, rendering an accurate Census imperative to

business growth and innovation. See A.J. Agrawal,

Why Data Is Important for Companies and Why Innovation Is On the Way, Inc. (Mar. 24, 2016),

https://bit.ly/2qY77iM (asserting that in an era in

which “[p]eople are generating more [data] than ever

before,” this data is becoming “essential for companies

and it’s going to spell an era of innovation”).

The emphasis on data analytics has led to the rise

of entire businesses built around processing and analyzing demographic data, and advising consumers

based on that data—including that provided in the

Census. Census data can be complicated (and costly)

to organize and interpret, and some businesses specialize in translating that raw data into usable information. See Weber, supra; see also Alteryx Powers

U.S. Census Data Analysis (Aug. 27, 2012),

https://bit.ly/2JPFxy8. Such companies may offer

business analytics solutions based, in part, on Census

data to assist with these location decisions. See Esri

Demographics,

Census

and

ACS,

https://bit.ly/2EMfhic. Other entities use Census data

to forecast demographic trends and provide those projections to businesses who are looking for growth opportunities. See Claritas Demographic Update Methodology, Claritas (Sept. 2006), https://bit.ly/2tZK865;

Geolytics, Estimates/Projects, https://bit.ly/2Wh6Cf0

(noting that its estimates and projects are “ideally

suited for business users and researchers who need to

know where to market, where to expand, and how to

allocate resources”). These companies specialize in

the provision of Census-based segmentation services—an analysis that divides up the U.S. population

into various segments sharing key traits and behavioral patterns that can be used to predict consumer

behavior. See Kysar, supra, at 880–81. And these

businesses rely, of course, on accurate Census data to

provide those services.

Census data is also critical to understanding and

making use of marketing research gathered through

other means. Many businesses have commercial databases that store information about their customers

and target audience. See Scott McDonald, A 2020

Census Flop Would Pose a Danger to U.S. Businesses,

Forbes (Dec. 6, 2017), https://bit.ly/2Uv6ckz. But

marketing research gathered from a sample population can be skewed or inaccurate, and so businesses

rely on Census data to provide a benchmark to “evaluate the quality of the dataset and provide a basis for

statistical adjustments.” Id. The accuracy of Census

data thus even affects the quality of independent market research: “Marketing is based on consumers in

markets, not citizens in markets.” Ass’n of Nat’l Advertisers, supra (“As a business user of the data, we

need the census to accurately reflect all segments of

our society. Non-citizen residents contribute a great

deal to many economies. Marketers need to understand who truly lives and works in the U.S.”).

Census data is also critical to business because

that data is used validate other national surveys key

to most American businesses, including the American

Community Survey (ACS)—formerly the decennial

census long form—and the Economic Census. The

ACS is particularly important to data-driven businesses. Realtors, for instance, use the ACS and the

census to “develop insights on market trends and policy issues.” Letter from Nat’l Ass’n of Realtors to Sen.

Claire

McCaskill

(Feb.

25,

2018),

https://bit.ly/2HQ1dHF. But the ACS itself depends

on accurate Census data. See Andrew Reamer, Geo.

Wash. Inst. of Pub. Policy, Counting for Dollars: A

Study of Census-guided Financial Assistance to Rural

America (Oct. 11, 2018), https://bit.ly/2Onk0LO. If

the Citizenship Question is adopted and depresses response rates, “[e]very subsequent survey and study

that intends to be statistically representative of the

U.S. population will be built on decennial data, including the American Community Survey (ACS), the Economic Census and every other federal government

survey, and any inaccuracies will be felt for at least a

decade.” Howard Fienberg, Remove the Citizenship

Question from 2020 Census, Says Marketing Research

& Data Analytics Industry, Insights Ass’n (Aug. 7,

2018), https://bit.ly/2OVzhDi.

Location intelligence providers repurpose Census

data to provide insights to customers and to help them

draw better, data-driven inferences about how to run

their organizations. See Greg Sterling, Chipotle Customers Are Smarter Than McDonald’s And Other Insights From Smartphone Data, Mktg. Land (June 24,

2014), https://mklnd.com/2ESReye. Real estate aggregators can use Census data to compile their listings and real estate estimates. Zillow: Ahead of Its

Time or Falling Behind, Harv. Bus. Sch.: Open

Knowledge by Digital Initiative (Nov. 18, 2016),

https://bit.ly/2VSEjU0/; see also Census Data Trends,

Zillow Blogs (Sept. 13, 2006), https://bit.ly/2VSEkr2.

Businesses like these depend on advanced data processing, and among the information these businesses

process is Census data, the accuracy of which is and

will continue to be essential to their success.

***

Although it is impossible to determine how innovators and entrepreneurs will use Census data in the

future, one thing is clear: businesses will keep using

it in important ways so long as it is accurate. They

will seek to leverage key data and determine new,

profitable uses to draw from it. Ensuring the accuracy

of this data is essential, and any attempt by the federal government to diminish the Census impairs the

ability of businesses across the country to be effective.

CONCLUSION

For the foregoing reasons, amici curiae request

that this Court affirm the judgment below.

Respectfully submitted.