Amicus Curiae Brief — Department of Commerce, et al., Petitioners v. New York, et al.
Supreme Court briefApr 1, 2019
Ask Donna
What actually matters in this document.
Text
No. 18-966
IN THE
Supreme Court of the United States
DEPARTMENT OF COMMERCE, ET AL.,
Petitioners,
v.
STATE OF NEW YORK, ET AL.,
Respondents.
On Writ of Certiorari Before Judgment
to the United States Court of Appeals
for the Second Circuit
BRIEF OF AMICUS CURIAE NAACP LEGAL
DEFENSE & EDUCATIONAL FUND, INC. IN
SUPPORT OF RESPONDENTS
SHERRILYN A. IFILL
JANAI S. NELSON
SAMUEL SPITAL
LEAH C. ADEN
AARON SUSSMAN
J. ZACHERY MORRIS
NAACP LEGAL DEFENSE &
EDUCATIONAL FUND, INC.
40 Rector Street, 5th Floor
New York, NY 10006
(212) 965-2200
April 1, 2019
DAVID J. ZIMMER
Counsel of Record
JOSHUA J. BONE
GOODWIN PROCTER LLP
100 Northern Ave.
Boston, MA 02210
(617) 570-1000
dzimmer@goodwinlaw.com
TIFFANY MAHMOOD
WILLIAM UHR
MADELINE DILASCIA
GOODWIN PROCTER LLP
Counsel for Amicus Curiae
i
TABLE OF CONTENTS
INTEREST OF AMICUS CURIAE ............................. 1
INTRODUCTION AND SUMMARY OF
ARGUMENT........................................................... 2
ARGUMENT ................................................................ 4
I.
Adding the Citizenship Status Question
would undermine racial equity by
exacerbating the Black population
undercount. ........................................................ 4
A.
The census has historically
undercounted the Black population............ 5
B.
Inclusion of the Citizenship Status
Question in the census would
particularly harm Black people. ............... 10
C.
A complete and accurate count is
necessary for racial equity. ....................... 24
II. LDF and other civil rights organizations’
vast experience litigating under the Voting
Rights Act confirms that the Citizenship
Status Question is unnecessary to enforce
Section 2 of the Act. ......................................... 30
CONCLUSION .......................................................... 37
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Ala. Legis. Black Caucus v. Alabama,
135 S. Ct. 1257 (2015) ............................................ 1
Baldridge v. Shapiro,
455 U.S. 345 (1982) .............................................. 24
Barnett v. City of Chicago,
141 F.3d 699 (7th Cir. 1998) ................................ 34
Beer v. United States,
425 U.S. 130 (1976) ................................................ 1
Benavidez v. City of Irving, Tex.,
638 F. Supp. 2d 709 (N.D. Tex. 2009) .................. 36
Bush v. Vera,
517 U.S. 952 (1996) ................................................ 1
Centro Presente v. Trump,
332 F. Supp. 3d 393 (D. Mass. 2018) ................... 21
Chisom v. Roemer,
501 U.S. 380 (1991) ................................................ 1
Corbett v. Sullivan,
202 F. Supp. 2d 972 (E.D. Mo. 2002) ................... 34
Easley v. Cromartie,
532 U.S. 234 (2001) ................................................ 1
iii
Evenwel v. Abbott,
136 S. Ct. 1120 (2016) ...................................passim
Georgia State Conference NAACP v.
Fayette Cnty. Bd. of Commr’s,
118 F. Supp. 3d 1338 (N.D. Ga. 2015) ................. 33
Georgia v. Ashcroft,
539 U.S. 461 (2003) ................................................ 1
Gomillion v. Lightfoot,
364 U.S. 339 (1960) ................................................ 2
Houston Lawyers’ Ass’n v. Attorney Gen.
of Texas,
501 U.S. 419 (1991) ................................................ 1
Kirksey v. Bd. of Supervisors,
554 F.2d 139 (5th Cir. 1977) .................................. 2
League of United Latin Am. Citizens v.
Clements,
999 F.2d 831 (5th Cir. 1993) .................................. 1
League of United Latin Am. Citizens v.
Perry,
548 U.S. 399 (2006) .................................... 1, 32, 34
NAACP v. Bureau of Census,
No. PWB-18-891, 2019 WL 355743
(D. Md. Jan. 29, 2019) ...................................... 6, 17
NAACP v. U.S. Dep’t of Homeland Sec.,
No. DKC 18-0239, 2019 WL 1126386
(D. Md. Mar. 12, 2019) ......................................... 21
iv
Negron v. City of Miami Beach,
113 F.3d 1563 (11th Cir. 1997) ............................ 34
New York v. U.S. Dep’t of Commerce,
351 F. Supp. 3d 502 (S.D.N.Y. 2019) ............passim
New York v. U.S. Dep’t of Commerce,
315 F. Supp. 3d 766 (S.D.N.Y. 2018) ................... 34
Nw. Austin Mun. Util. Dist. No. One v.
Holder,
557 U.S. 193 (2009) ................................................ 1
Ramos v. Nielsen,
336 F. Supp. 3d 1075 (N.D. Cal.
2018)...................................................................... 21
Saget v. Trump,
No. 1:18-cv-01599, 345 F. Supp. 3d
287 (E.D.N.Y. Dec. 14, 2018)................................ 21
Schnell v. Davis,
336 U.S. 933 (1949) ................................................ 2
Shaw v. Hunt,
517 U.S. 899 (1996) ................................................ 1
Shelby Cnty. v. Holder,
570 U.S. 529 (2013) ................................................ 1
Smith v. Allwright,
321 U.S. 649 (1944) ................................................ 2
State of California v. Ross,
Nos. 18-cv-01865-RS, 18-cv-02279RS, 2019 WL 1052434 (N.D. Cal.
Mar. 6, 2019)..................................................passim
v
Terrebonne Parish Branch NAACP v.
Jindal,
274 F. Supp. 3d 395 (M.D. La. 2017) ................... 33
Terry v. Adams,
345 U.S. 461 (1953) ................................................ 2
Thornburg v. Gingles,
478 U.S. 30 (1986) ...................................... 1, 31, 32
United States v. Hays,
515 U.S. 737 (1995) ................................................ 1
Utah v. Evans,
536 U.S. 452 (2002) ................................................ 6
Wesberry v. Sanders,
376 U.S. 1 (1964) .................................................... 6
White v. Regester,
422 U.S. 935 (1975) ................................................ 2
Wisconsin v. City of New York,
517 U.S. 1 (1996) ...........................................passim
Zimmer v. McKeithen,
485 F.2d 1297 (5th Cir. 1973) ................................ 2
Statutes
13 U.S.C. § 141(c)....................................................... 25
U.S. Constitution
U.S. Const., art. I, § 2, cl. 3 ..................................... 5, 6
vi
U.S. Const. amend. XIII .............................................. 6
U.S. Const. amend. XIV, § 2 ........................................ 6
Other Authorities
2020 Census Fact Sheet, Census Accuracy and the Undercount: Why It
Matters; How It’s Measured, Funders
Comm. for Civic Participation (2017) .................... 9
Agency History - U.S. Census Bureau,
Census.Gov ............................................................. 7
American Community Survey Design
and Methodology, Chapter 11,
Weighting and Estimation, U.S. Census Bureau (Rev. Dec. 2010) .......................... 35, 36
Monica Anderson, A Rising Share of the
U.S. Black Population Is Foreign
Born, Pew Research Ctr. (Apr. 9,
2015)................................................................ 13, 14
Monica Anderson & Gustavo López, Key
facts about black immigrants in the
U.S., Pew Research Ctr. (Jan. 24,
2018)...................................................................... 13
Randy Capps, Kristen McCabe, & Michael Fix, Diverse Streams: African
Migration to the United States, Migration Policy Institute (Apr. 2012) ..................... 16
vii
Chand et al., Multi-Year Averages From
a Rolling Sample Survey, U.S. Census Bureau (2000)........................................... 33, 35
Maryann M. Chapin, U.S. Census Bureau, 2020 Census: Counting Everyone Once, Only Once, and in the
Right Place............................................................ 14
Citizen Voting Age Population by Race
and Ethnicity, Census.gov (Feb. 1,
2018)...................................................................... 35
Lynette Clemetson, Homeland Security
Given Data on Arab-Americans, N.Y.
Times (July 30, 2004) ........................................... 19
Josh Dawsey, Trump derides protections
for immigrants from ‘shithole’
countries, Wash. Post (Jan. 12, 2018) .................. 21
Dep’t of Justice, Smart on Crime: Reforming the Criminal Justice System
for the 21st Century (Aug. 2013) .......................... 29
Melissa Etehad, The 2020 census could
undercount 1 million kids – which
means less money for California
schools, L.A. Times (July 9, 2018). ...................... 27
David A. Graham, The Unpredictable
Political Effects of 2020 Census
Tinkering, The Atlantic (June 25,
2018)........................................................................ 8
viii
John Iceland & Kyle Anne Nelson, The
Residential Segregation of MixedNativity Married Couples, Demography Vol. 47, No. 4, 869-93 (Nov. 2010) ................ 16
Samuel Issacharoff & Allan J. Lichtman,
The Census Undercount and Minority
Representation: The Constitutional
Obligation of the States to Guarantee
Equal Representation, 13 Rev. Litig.
1 (1993) ................................................................... 7
Jolie Lee, Still apart: Map shows states
with most-segregated schools, USA
Today (May 15, 2014) ........................................... 27
Letter from Asian Americans Advancing
Justice to Jennifer Jessup (Aug. 7,
2018)...................................................................... 19
Letter from Mexican American Legal
Defense & Educ. Fund to Jennifer
Jessup (Aug. 7, 2018) ....................................passim
Letter from Native American Voting
Rights Coalition to Jennifer Jessup
(Aug. 7, 2018) ............................................ 33, 35, 37
McGeeney et al., 2020 Census Barriers,
Attitudes, and Motivators Study
Survey Report (2019)............................................ 14
Memorandum from the U.S. Census Bureau, Ctr. For Survey Measurement
to Assoc. Directorate for Research &
Methodology (Sept. 20, 2017). .............................. 22
ix
Mikelyn Meyers, Respondent
Confidentiality Concerns and
Possible Effects on Response Rates
and Data Quality for the 2020
Census, U.S. Census Bureau (Nov. 2,
2017)...................................................................... 18
Migration Policy Institute, A Demographic Profile of Black Caribbean
Immigrants in the United States
(Apr. 2012) ............................................................ 14
Muslims in America: Immigrants and
those born in U.S. see life differently
in many ways, Pew Research Ctr.
(Apr. 17, 2018) ...................................................... 23
National Fair Housing Alliance, Zip
Code Inequality: Discrimination by
Banks in the Maintenance of Homes
in Neighborhoods of Color (Aug. 27,
2014)...................................................................... 28
Ashley Nellis, The Sentencing Project,
The Color of Justice: Racial and Ethnic Disparity in State Prisons 3 (Jun.
2016)...................................................................... 29
NYU Law Immigrant Rights Clinic, The
State of Black Immigrants Part 1:
Statistical Portrait of Black Immigrants in the United States ..........................passim
x
NYU Law Immigrant Rights Clinic, The
State of Black Immigrants Part 2:
Black Immigrants in the Mass Criminalization System ................................................ 23
Race and Ethnicity in the 2020 Census:
Improving Data to Capture a Multiethnic America, The Leadership Conference & Educ. Fund (Nov. 2014) ................passim
Michael D. Shear & Julie Hirschfeld
David, Stoking Fears, Trump Defied
Bureaucracy to Advance Immigration
Agenda, N.Y. Times (Dec. 23, 2017) .................... 21
Peter Skerry, Counting on the Census?:
Race, Group Identity and the Evasion of Politics (2000) ............................................. 9
Katy Steinmetz, The Debate Over a New
Citizenship Question Isn’t the First
Census Fight. Here’s Why the Count
is Controversial, Time (Mar. 27,
2018)...................................................................... 18
Christopher M. Taylor, Vote Dilution
and the Census Undercount: A Stateby-State Remedy, 94 Mich. L. Rev.
1098 (1996) ............................................................. 6
xi
Testimony of Lawyers’ Committee for
Civil Rights Under Law Submitted
by Kristen Clark to the U.S. House of
Representatives Judiciary Committee Subcommittee on the Constitution and Civil Justice Hearing on
“Questions Regarding the U.S. Census” (June 8, 2018) ......................................... 33, 34
The Leadership Conference Educ. Fund,
Factsheet: Will Your Kids Count?
Young children and their families in
the 2020 census (last updated Apr.
17, 2018)................................................................ 28
Why We Ask About… - Place of Birth,
Citizenship, Year of Entry –American
Community Survey, U.S. Census
Bureau, Census.Gov ............................................... 4
David R. Williams & James S. Jackson,
Race/Ethnicity and the 2000 Census:
Recommendations for African American and Other Black Populations in
the United States, Am. J. Public
Health, Vol. 90, No. 11, 1728-30
(Nov. 2000) ............................................................ 15
1
INTEREST OF AMICUS CURIAE 1
Amicus, the NAACP Legal Defense and Educational Fund, Inc. (“LDF”), is a non-profit, non-partisan
law organization established under the laws of New
York to assist Black people and other people of color
in the full, fair, and free exercise of their constitutional and statutory rights. Founded in 1940 under
the leadership of Thurgood Marshall, LDF focuses on
eliminating racial discrimination in education, economic justice, criminal justice, and political participation, using various tools including census data.
LDF has been involved in numerous precedentsetting cases relating to minority political representation and voting rights before state and federal
courts. See, e.g., Evenwel v. Abbott, 136 S. Ct. 1120
(2016); Ala. Legis. Black Caucus v. Alabama, 135
S. Ct. 1257 (2015); Shelby Cnty. v. Holder, 570 U.S.
529 (2013); Nw. Austin Mun. Util. Dist. No. One v.
Holder, 557 U.S. 193 (2009); League of United Latin
Am. Citizens v. Perry, 548 U.S. 399 (2006); Georgia v.
Ashcroft, 539 U.S. 461 (2003); Easley v. Cromartie,
532 U.S. 234 (2001); Bush v. Vera, 517 U.S. 952
(1996); Shaw v. Hunt, 517 U.S. 899 (1996); United
States v. Hays, 515 U.S. 737 (1995); League of United
Latin Am. Citizens v. Clements, 999 F.2d 831 (5th
Cir. 1993) (en banc); Chisom v. Roemer, 501 U.S. 380
(1991); Houston Lawyers’ Ass’n v. Attorney Gen. of
Texas, 501 U.S. 419 (1991); Thornburg v. Gingles,
478 U.S. 30 (1986); Beer v. United States, 425 U.S.
Counsel for amicus curiae state that no counsel for a party
authored this brief in whole or in part and that no person other
than amicus curiae, its members, or its counsel made a monetary contribution to the preparation or submission of this brief.
The parties filed blanket consents to the filing of amici briefs.
1
2
130 (1976); White v. Regester, 422 U.S. 935 (1975)
(per curiam); Gomillion v. Lightfoot, 364 U.S. 339
(1960); Terry v. Adams, 345 U.S. 461 (1953); Schnell
v. Davis, 336 U.S. 933 (1949) (per curiam); Smith v.
Allwright, 321 U.S. 649 (1944); Kirksey v. Bd. of Supervisors, 554 F.2d 139 (5th Cir. 1977); Zimmer v.
McKeithen, 485 F.2d 1297 (5th Cir. 1973). Specifically, LDF has successfully raised claims under the Voting Rights Act of 1965, its amendments, and the U.S.
Constitution to defend and protect minority voting
rights using census data—without the inclusion of a
citizenship status question on the decennial census—
for over 50 years.
LDF has a significant interest in ensuring that the
protections of the U.S. Constitution and the Voting
Rights Act are properly enforced and that Black
communities are fairly and fully counted in the decennial censuses.
INTRODUCTION AND SUMMARY
OF ARGUMENT
Since its inception, the United States census has
undercounted the Black population of the United
States both to their detriment and the detriment of
the U.S. Constitution’s mandate of “actual Enumeration.” The disproportionate undercounting of Black
people, which has persisted through the most recent
censuses, has enormous practical implications. Accurate census data is essential to the equitable allocation of political representation and government resources. Any revision to the methods for conducting
the census should seek to remedy the racial disparity
in enumeration, and certainly not exacerbate it.
3
Yet exacerbating that racial disparity would be
precisely the result of starting—for the first time in
70 years—to ask respondents about their citizenship
status on the decennial census questionnaire (the
“Citizenship Status Question”). As the district court
recognized, that question is likely to chill the participation of vulnerable immigrant communities—which
Black people are both a part of and live in proximity
to—particularly given the hostile rhetoric that characterizes contemporary immigration policy and escalated efforts to identify and deport potentially removable immigrants. Indeed, given that the makeup
of the immigrant population includes a sizeable population of Black immigrants and noncitizens, decreased census participation would almost certainly
impact the already significant and disproportionate
undercount of the Black population, heightening the
inequality in representation and access to resources
that necessarily accompanies it.
The Government attempts to justify the addition of
the Citizenship Status Question with the remarkable
assertion that it would actually help Black people
and other people of color because it is purportedly
necessary to enforce Section 2 of the Voting Rights
Act of 1965. As one of the organizations with the
most experience litigating Section 2 claims, LDF can
assure this Court that this assertion is unequivocally
wrong. LDF has successfully brought Section 2 suits
for decades, and these voting rights cases have never
been hampered by the absence of citizenship data
drawn from the decennial census. Indeed, as the district court found, other available data is more accurate for these purposes than the new census data
sought through the inclusion of the Citizenship Status Question. Fellow civil rights groups and the Jus-
4
tice Department itself (until 2017) have consistently
agreed that they do not view a citizenship status
question as necessary to protect minority voting
rights. In fact, the addition of the question is likely
to have the exact opposite effect.
Given the Government’s implausible and unsubstantiated justification for the addition of the Citizenship Status Question on the decennial census,
and the harms that it would cause to Black and other
communities, this Court should affirm the judgment
of the district court.
ARGUMENT
I. Adding the Citizenship Status Question
would undermine racial equity by exacerbating the Black population undercount.
The addition of a question about citizenship status
to the 2020 decennial census questionnaire threatens
to exacerbate a long and well-documented record of
undercounting the Black population. 2 Black people
Between 1970 and 2000, the U.S. Census Bureau used two
questionnaires. Most households received a short-form questionnaire, while selected households received a long-form questionnaire with additional questions. The 2010 Census had just
one questionnaire consisting of ten questions. See Questionnaires - History - U.S. Census Bureau, Census.Gov https://
www.census.gov/history/www/through_the_decades/questionnai
res/. Questions concerning citizenship first appeared in the
long-form 1820 Census, questions regarding place of birth first
appeared in the long-form 1850 Census, and questions regarding year of entry first appeared in the long-form 1890 Census.
These questions were moved to the American Community Survey in 2005 when it replaced the decennial census long form.
See Why We Ask About… - Place of Birth, Citizenship, Year of
Entry – American Community Survey, U.S. Census Bureau,
2
5
will be both directly and indirectly harmed as noncitizens, as immigrants, and/or otherwise as members
of hard-to-count communities.
The census is far more than a routine bureaucratic
exercise. Its count of the national population shapes
numerous critical decisions, including the allocation
of elected representatives to States, the development
of congressional and state legislative districts, and
the distribution of billions of dollars of federal and
state funds. Undercounting the Black population directly deprives Black people of equal political representation and equal access to government services.
In short, the systemic undercount facilitates and
amplifies race-based discrimination.
Thus, any
change to the census that threatens to increase this
historical and ongoing record of racial undercounting
should be subject to intensive scrutiny.
A. The census has historically undercounted
the Black population.
The decennial census traces back to the shameful
era of chattel slavery and the Constitutional Convention of 1787, when the Framers established that
seats in the House of Representatives should be apportioned to States on the basis of total population.
See U.S. Const., art. I, § 2, cl. 3; see also Evenwel v.
Abbott, 136 S. Ct. 1120, 1127 (2016) (outlining this
history). The Framers understood that this apportionment created incentives for manipulating population figures, and “that the calculation of populations could be and often were skewed for political or
Census.Gov,
https://www.census.gov/acs/www/about/why-weask-each-question/citizenship/.
6
financial purposes.” Utah v. Evans, 536 U.S. 452,
500 (2002). To limit the opportunity for population
distortion, and in an attempt to increase the accuracy of population counts, the Framers required that
Congress “direct” an “Enumeration” of the entire
population at least every ten years. See U.S. Const.
art. I, § 2, cl. 3; see also Wesberry v. Sanders, 376
U.S. 1, 13-14 (1964).
Shortly after the first U.S. census, the Framers became concerned that undercounting might have
marred the results. See Christopher M. Taylor, Vote
Dilution and the Census Undercount: A State-byState Remedy, 94 Mich. L. Rev. 1098, 1101 (1996).
But these concerns did not extend to the undercounting of Black people. At that time, enslaved Black
people were treated as only three-fifths of a person
and excluded by law from representation.
See
NAACP v. Bureau of Census, No. PWB-18-891, 2019
WL 355743, at *1, *4 (D. Md. Jan. 29, 2019).
It was not until the end of the Civil War that the
links between census undercounting and race began
to emerge clearly. During the Reconstruction era,
the country ratified the Thirteenth Amendment,
which nullified the distinction between “free Persons” and “all other Persons” in the Census Clause,
and the Fourteenth Amendment, which eliminated
the “three-fifths” calculation in the Census Clause.
U.S. Const. amend. XIII, amend. XIV, § 2. Although
these changes and others provided for the political
representation of Black people, the census quickly
proved an imperfect tool for protecting these new
rights.
In the 1870 census, the first after the enactment of
the Thirteenth and Fourteenth Amendments, Black
7
people were “egregiously undercounted . . . but
lacked the political clout to secure a recount.” Samuel Issacharoff & Allan J. Lichtman, The Census
Undercount and Minority Representation: The Constitutional Obligation of the States to Guarantee
Equal Representation, 13 Rev. Litig. 1, 6 (1993). Instability in the American South made it extremely
difficult to accurately administer the census. See
Margo J. Anderson, The American Census: A Social
History 89 (1988). Despite the undercount of the
Black population by approximately 10 percent, there
was no significant push for a recount because the
South was “already reaping a bonus in congressional
seats and electoral votes.” Id. at 89-90.
Although policymakers were thus aware of systemic racial undercounting as early as the 1870 census, 3
3 Policymakers during this period exacerbated the harms of ra-
cial undercounting by ignoring census results that demonstrated racial inequalities. For instance, in the opening half of the
Twentieth Century, the census showed “a massive population
shift away from rural areas and toward suburban and urban
communities” as Black Americans, alongside many other
groups, migrated to cities in the Northeast, the Midwest, and
the West. Evenwel, 136 S. Ct. at 1123. Representatives from
rural districts, however, “benefited from malapportionment
[and] had scant incentive to adopt new maps that might put
them out of office.” Id. Thus, “many States ran elections into
the early 1960s based on maps drawn to equalize each district’s
population as it was composed around 1900,” depriving racially
and ethnically diverse cities of equal representation, while concentrating power in less populous, white regions. See id.; see
also Agency History - U.S. Census Bureau, Census.Gov,
https://www.census.gov/history/www/census_then_now. It was
not until this Court’s one-person, one-vote cases in the 1960s
that States were finally forced to remedy a discrimination that
the census had long made plain. Evenwel, 136 S. Ct. at 1124
(noting that the one-person, one-vote cases “instructed that ju-
8
the Census Bureau only began documenting the census undercount—including with respect to the Black
population—following the 1940 census. The extent
of the undercount became impossible to ignore when
the number of Black men who registered to fight in
World War II seemed implausibly large in light of
the total number of Black men counted in the census.
See David A. Graham, The Unpredictable Political
Effects of 2020 Census Tinkering, The Atlantic (June
25, 2018). 4 The Census Bureau ultimately determined that the undercount for the entire population
in the 1940 census was 5.4 percent, but that the undercount was only 5.0 percent for the white population, as compared to 8.4 percent for the Black population. Wisconsin v. City of New York, 517 U.S. 1, 7
(1996).
This 3.4 percent disparity between the census undercount rates for the Black and white populations
widened over time. For example, by 1980, while the
overall population undercount had shrunk to an estimated 1.2 percent, the undercount for the Black
population was 3.7 percent higher than the undercount for the non-Black population. See 1980 Overview – History – U.S. Census Bureau, Census.Gov. 5
In the 1990 census, the disparity between the undercount rates for the Black and white populations increased yet again to 4.4 percent. See Peter Skerry,
risdictions must . . . regularly reapportion districts [based on
up-to-date data] to prevent malapportionment”).
4 Available at https://www.theatlantic.com/politics/archive/2018/
06/the-unpredictable-political-effects-of-trumps-censusmoves/563645/.
Available at https://www.census.gov/history/www/through_
the_decades/overview/1980.html.
5
9
Counting on the Census?: Race, Group Identity and
the Evasion of Politics 82 (2000). Most recently, in
2010, the census failed to count over 800,000 Black
people (2.1 percent), while overcounting nonHispanic white people by 0.8 percent. 6 See Census
Bureau Releases Estimates of Undercount and Overcount in the 2010 Census – 2010 Census – Newsroom
– U.S. Census Bureau, Census.Gov (May 22, 2012). 7
As explained at pp. 25-26, infra, the persistent undercount of the Black population has dramatically
undermined the quality of political representation for
Black people, as well as their access to opportunities
and civil rights protections more generally. These
detrimental effects are compounded by the gap between the Black population undercount and the
white population overcount, which results in an inequitable distribution of political and economic resources, harming undercounted communities while
simultaneously over-resourcing overcounted communities. See 2020 Census Fact Sheet, Census Accuracy and the Undercount: Why It Matters; How It’s
Measured, Funders Comm. for Civic Participation 2
(2017) (explaining the differential undercount in the
2010 census). 8
6 Specific events that happen shortly before a decennial census,
such as the 2008 economic crisis, disproportionately harm people of color and can exacerbate the undercount.
Available at https://www.census.gov/newsroom/releases/
archives/2010_census/cb12-95.html.
7
8 Available at https://funderscommittee.org/wp-content/uploads/
2017/01/FCI2020-FactSheet-Census-Accuracy-UndercountFall2016.pdf.
10
The attempt to add the Citizenship Status Question to the decennial census is the latest chapter in a
long history of manipulation of the census that has
disadvantaged Black communities. Based on the
false and pretextual claim that current census data
is insufficient to enforce Section 2 of the Voting
Rights Act, as the district court found, Petitioners
seek to add a question that, as discussed infra, will
fail to produce more accurate data while further
harming already undercounted communities and
benefiting overcounted communities. See New York
v. U.S. Dep’t of Commerce, 351 F. Supp. 3d 502, 516,
635-36, 651-54, 660-64 (S.D.N.Y. 2019). The decennial census should be a snapshot of the present,
while the Citizenship Status Question is a reflection
of a regrettable past.
B. Inclusion of the Citizenship Status Question in the census would particularly
harm Black people.
Adding the Citizenship Status Question threatens
to deepen the current and historical census undercount of the Black population generally, and of the
Black immigrant and noncitizen populations specifically. These groups are already recognized as hardto-count populations. Given reasonable fears about
the abuse of census data to facilitate racially discriminatory immigration enforcement, adding the Citizenship Status Question would further chill census
participation rates among Black immigrant and
noncitizen persons. And given the prevalence of immigrant-adjacent and mixed-citizenship-status Black
families and communities, these chilling effects
would have broad implications for Black people in
the United States more generally. Thus, adding the
11
Citizenship Status Question would make an accurate
count of the Black population even more difficult to
achieve, depriving Black people of vital political and
socio-economic opportunities.
1. As explained in more detail below, adding the
Citizenship Status Question would likely have a
negative effect on census response rates for the Black
population generally, and for the Black immigrant
and noncitizen populations specifically. Historically
and through the most recent census, the Census Bureau has struggled to enumerate hard-to-count populations, including Black people generally, as discussed below, as well as immigrant people, noncitizen people, and other subgroups of which Black people are an appreciable part. Approximately 42 percent of Black immigrant persons do not hold U.S. citizenship.
See infra at 13.
The district court
acknowledged Census Bureau findings concerning
the overlap between these hard-to-count subgroups
and those unlikely to respond to the census because
of the Citizenship Status Question. See New York,
351 F. Supp. 3d at 515; see also State of California v.
Ross, Nos. 18-cv-01865-RS, 18-cv-02279-RS, 2019
WL 1052434, at *11 (N.D. Cal. Mar. 6, 2019) (“Census Bureau research shows that there is ‘substantial
overlap’ between these hard-to count subgroups and
those households most likely not to respond to the
2020 Census because of the citizenship question.”
(internal citation omitted)). Specifically, the district
court found that the inclusion of a “citizenship question will cause a significant differential decline in
self-response rates among noncitizen households.”
New York, 351 F. Supp. 3d at 582. Moreover, the
district court found that efforts to remediate the undercount would not work and may in fact exacerbate
12
the differential undercount of noncitizens.
585-86.
Id. at
This significant decline among noncitizen communities is compounded by the national political environment. As the district court recognized, “a higher
level of concern about using citizenship data for enforcement purposes . . . could also exacerbate the effects of adding a citizenship question,” (id. at 579 (internal citation omitted)), reducing response rates for
Black immigrants for the reasons discussed at pp.
17-24, infra. See also Ross, 2019 WL 1052434, at *2
(“[A] significant differential undercount, particularly
impacting noncitizen . . . communities, will result
from the inclusion of a citizenship question on the
2020 Census, compounded by macro-environmental
factors arising out of the national immigration debate.”). Indeed, even before consideration of the Citizenship Status Question, there had already been
documented distrust of the census among immigrant
communities and people of color, including confidentiality concerns, as discussed at pp. 17-19, infra. The
Citizenship Status Question would only deepen this
distrust.
2. The effects of the Citizenship Status Question
on Black communities must be evaluated in light of
the substantial Black immigrant and noncitizen
populations, which already have particularly low
census response rates. The number of Black immigrant persons in the United States has increased
significantly in recent decades. See NYU Law Immigrant Rights Clinic, The State of Black Immigrants
Part 1: Statistical Portrait of Black Immigrants in
the United States 10 [hereinafter The State of Black
13
Immigrants Part 1]. 9
Approximately one-in-ten
Black people in the United States are immigrants.
See Monica Anderson & Gustavo López, Key facts
about black immigrants in the U.S., Pew Research
Ctr. (Jan. 24, 2018). 10 Of this population, approximately 42 percent do not hold U.S. citizenship, and
approximately 15 percent are undocumented. See id.
Black immigrants have been estimated to comprise
8.7 percent of the overall foreign-born population in
the United States, and approximately 7.2 percent of
the noncitizen foreign-born population. See The
State of Black Immigrants Part 1, supra, at 11.
Black immigrants are largely concentrated in particular communities clustered around metropolitan areas. See id. In the New York metropolitan area, for
example, Black immigrants make up approximately
28 percent of the Black population. In the Miami
metropolitan area, approximately a third of the
Black population is comprised of immigrants. See
Monica Anderson, A Rising Share of the U.S. Black
Population Is Foreign Born, Pew Research Ctr. (Apr.
9, 2015) 11 [hereinafter Anderson Pew Research Ctr.];
see also Migration Policy Institute, A Demographic
Profile of Black Caribbean Immigrants in the United
States (Apr. 2012) (noting that in 2007, the majority
Available at http://www.stateofblackimmigrants.com/assets/
sobi-fullreport-jan22.pdf.
9
Available at https://www.pewresearch.org/fact-tank/2018/
01/24/key-facts-about-black-immigrants-in-the-u-s/.
10
Available at https://www.pewsocialtrends.org/2015/04/09/arising-share-of-the-u-s-black-population-is-foreign-born/.
11
14
of all Black Caribbean immigrants lived in New York
and Florida). 12
The Black immigrant population is particularly
vulnerable to census undercounting. Not only are
racial and ethnic minority populations generally undercounted, but the Black immigrant population is
disproportionately likely to belong to other groups
that the Census Bureau has identified as “hard-tocount,” including non-English speakers, 13 undocumented immigrants, low-income persons, people who
distrust the government, 14 and racial and ethnic minorities. 15 See Maryann M. Chapin, U.S. Census Bureau, 2020 Census: Counting Everyone Once, Only
12 Available
at https://www.migrationpolicy.org/research/CBIdemographic-profile-black-caribbean-immigrants.
13 Roughly a quarter of Black immigrant people ages five and
older are not proficient in English. See Anderson Pew Research
Ctr.
14 Census Bureau research has found that “participation in the
census could be affected by trust in the government, especially
the Federal government,” and has observed such distrust at
high levels among non-Hispanic Black people. See McGeeney et
al., 2020 Census Barriers, Attitudes, and Motivators Study
Survey Report 47-48 (2019), available at https://www2.census
.gov/programs-surveys/decennial/2020/program-management/
final-analysis-reports/2020-report-cbams-study-survey.pdf.
15 Twenty percent of Black immigrants live below the poverty
line, and Black immigrants have the highest unemployment
and joblessness rates among all immigrant groups. See NYU
Law Immigrant Rights Clinic, The State of Black Immigrants
Part 1: Statistical Portrait of Black Immigrants in the United
States 12-13, http://www.stateofblackimmigrants.com/assets/
sobi-fullreport-jan22.pdf.
15
Once, and in the Right Place 42. 16 Thus, even compared to the U.S. Black population as a whole, the
Black immigrant population—including the undocumented Black immigrant population—faces a substantial risk of being undercounted by the census.
See, e.g., David R. Williams & James S. Jackson,
Race/Ethnicity and the 2000 Census: Recommendations for African American and Other Black Populations in the United States, Am. J. Public Health, Vol.
90, No. 11, 1728-30 (Nov. 2000) (noting the concerns
of experts that existing estimates of the foreign-born
Black population, and estimates of Black people with
foreign parentage, are too low). 17 It is therefore
hardly surprising that areas with particularly large
Black immigrant populations, such as New York City
(particularly Kings County), have persistently low
census response rates. See, e.g., Census 2020 Hard
to Count Map, Mapping Hard to Count (HTC) Communities for a Fair and Accurate 2020 Census. 18
These low census response rates—and the resulting census undercount for these communities—affect
not just Black immigrant and noncitizen populations
specifically, but also the Black population in the
United States more generally. Significant numbers
of non-immigrant Black people live in or near these
hard-to-count immigrant and noncitizen communities. See Randy Capps, Kristen McCabe, & Michael
Available at https://www2.census.gov/programs-surveys/
decennial/2020/program-management/pmr-materials/10-192018/pmr-hard-to-count-2018-10-19.pdf.
16
17 Available at https://ajph.aphapublications.org/doi/pdf/10.2105
/AJPH.90.11.1728.
18 Available at https://www.censushardtocountmaps2020.us/.
16
Fix, Diverse Streams: African Migration to the United States, Migration Policy Institute 11-12 (Apr.
2012) (finding that Black African immigrants resided
in a heavily concentrated handful of areas, with distribution largely mirroring that of the overall Black
population in the United States) 19; John Iceland &
Kyle Anne Nelson, The Residential Segregation of
Mixed-Nativity Married Couples, Demography Vol.
47, No. 4, 869-93, 887 (Nov. 2010) (finding that foreign-born and mixed-nativity Black households experienced high levels of segregation from non-Black racial and ethnic groups in metropolitan regions) 20; see
also Ross, 2019 WL 1052434, at *9 (noting the finding that “the citizenship question will cause a significant decline in self-response rates . . . particularly for
immigrants and immigrant-adjacent communities . . .” and defining “‘immigrant-adjacent communities’ as communities with mixed-status households,
where one family member is a U.S. citizen and another family member is not, and communities in
which residents would interact with immigrants daily at work, school, or in other similar environments.”). It is also common for Black families to
have family members with different citizenship statuses. For example, a majority of African and Caribbean immigrants who obtained lawful permanent
resident status have been recorded as being immediate relatives of U.S. citizens or otherwise familysponsored. See The State of Black Immigrants Part
1, supra, at 14.
19 Available at https://www.migrationpolicy.org/research/CBIafrican-migration-united-states.
20 Available
at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC
3000034/pdf/dem-47-0869.pdf.
17
Thus, any evaluation of the potential chilling effect
of the Citizenship Status Question must take into
consideration not just the overall undercount of the
Black population, but also the various factors that
render the distinct Black noncitizen and immigrant
populations particularly hard to count. See Ross,
2019 WL 1052434, at *11 (“The Census Bureau has
identified four primary obstacles to counting hard-tocount subpopulations: that they are hard to locate,
hard to contact, hard to persuade, and hard to interview. For some hard-to-count subgroups, more than
one of these obstacles applies. Census Bureau research acknowledges that these obstacles apply to
those households most likely not to respond to the
2020 Census because of the citizenship question.”
(internal citations omitted)).
3. Adding the Citizenship Status Question would
further chill census participation among Black immigrants and noncitizens—as well as among Black
people more generally—undermining the quality of
representation and other opportunities available to
all Black people. Even before the formal proposal to
add the Citizenship Status Question to the 2020 census, various factors threatened to reduce census participation rates for immigrant populations and communities of color, including concerns about insufficient funding and the confidentiality of the census
count. See, e.g., NAACP v. Bureau of Census, No.
PWG-18-891, 2019 WL 355743, at *7 (D. Md. Jan. 29,
2019) (discussing concerns about cybersecurity
threats and increased undercounting of minorities
because the Census Bureau is insufficiently funded
to prepare for the challenges that digitizing the 2020
census presents, including impacts on communities
of color and low-income communities with limited
18
internet access); Mikelyn Meyers, Respondent Confidentiality Concerns and Possible Effects on Response
Rates and Data Quality for the 2020 Census, U.S.
Census Bureau (Nov. 2, 2017) (“Findings across languages, regions of the country, from both pretesting
respondents and field staff point to an unprecedented
ground swell in confidentiality and data sharing concerns, particularly among immigrants or those who
live with immigrants. . . . Particularly troubling due
to the disproportionate impact on hard-to-count populations.”)21; see also Ross, 2019 WL 1052434, at *7
(“This research includes the Census Bureau’s Center
for Survey Measurement (‘CSM’) focus group testing
in 2017, which revealed increased concern among
immigrants about the confidentiality of their survey
responses.”).
These fears have deep historical roots given that,
in the past, the census has been actively used to further governmental discrimination. Data from the
1940 census was notoriously used by the Secret Service to locate Japanese Americans and imprison
them in internment camps. See Katy Steinmetz, The
Debate Over a New Citizenship Question Isn’t the
First Census Fight. Here’s Why the Count is Controversial, Time (Mar. 27, 2018). 22 In 2004, data from
the 2000 census was used by the Department of
Homeland Security to target geographic locations
with high concentrations of Arab Americans. See
21 Available at https://www2.census.gov/cac/nac/meetings/2017-
11/Meyers-NAC-Confidentiality-Presentation.pdf.
Available at http://time.com/5217151/census-questionscitizenship-controversy.
22
19
Lynette Clemetson, Homeland Security Given Data
on Arab-Americans, N.Y. Times (July 30, 2004). 23
These reasonable concerns about confidentiality already dampen census participation rates for Black
immigrant people and members of other immigrant
communities. And there is near consensus that the
addition of the Citizenship Status Question would
only amplify this chilling effect. See New York, 351
F. Supp. 3d at 648 (“[D]espite Secretary Ross’s claim
to the contrary . . . there is no evidence in the Administrative Record supporting a conclusion that addition of the citizenship question will not harm the response rate.”); Ross, 2019 WL 1052434, at *9 (“Dr.
Barreto observed that the citizenship question is
likely to be most sensitive to those who are closer to
the immigrant experience or closer to immigrant
communities.” (internal quotations and citation omitted)); Letter from Mexican American Legal Defense
& Educ. Fund to Jennifer Jessup 6-10 (Aug. 7, 2018)
[hereinafter MALDEF Letter]; Letter from Asian
Americans Advancing Justice to Jennifer Jessup 6-9
(Aug. 7, 2018).
For decades, “the official position of the Census
Bureau was that [a citizenship status question] was
inadvisable because it would depress the count for
already ‘hard-to-count’ groups—particularly noncitizens and Hispanics—whose members would be less
likely to participate in the census for fear that the
data could be used against them or their loved ones.”
See New York, 351 F. Supp. 3d at 515; see also Ross,
2019 WL 1052434, at *6 (“The macro-environment,
Available
at
https://www.nytimes.com/2004/07/30/us/
homeland-security-given-data-on-arab-americans.html.
23
20
particularly the political environment around immigration, has the potential to amplify the negative effect of the citizenship question on self-response
rates.”). Despite the radical shift in position of the
newest Secretary of Commerce, the staff of the Census Bureau has continued to recognize that the inclusion of the Citizenship Status Question “would
likely result in a significant differential decline in
self-response rates within noncitizen and Latino
communities,” and that the “lower response rates
will harm the quality of census data.” Ross, 2019
WL 1052434, at *1, *4. The Census Bureau views as
“extremely problematic” the reaction of immigrant,
non-white, and Spanish-speaking groups to the proposal to add the Citizenship Status Question—
groups that include Afro-Latinx immigrants, who
comprise 11 percent of the Black immigrant population. See Anderson Pew Research Ctr., supra, at 2.
The widespread fears that the Citizenship Status
Question has created among immigrant communities
and noncitizen people of color have been amplified by
increased immigration enforcement and intensifying
xenophobic rhetoric in recent years. Black immigrant people have been among the explicit targets of
these attacks. For example, the Temporary Protected Status (“TPS”) designation for Haitian immigrants—initiated by the U.S. government in response to the 2010 earthquake, and maintained in
the wake of a subsequent cholera outbreak, and the
hurricanes that have devastated the Haitian population—was terminated in November 2017. Four district courts have recognized that LDF’s clients and
other parties have asserted legitimate claims that
this act was motivated at least partially by racial
discrimination. See NAACP v. U.S. Dep’t of Home-
21
land Sec., No. DKC 18-0239, 2019 WL 1126386 (D.
Md. Mar. 12, 2019); Saget v. Trump, 345 F. Supp. 3d
287 (E.D.N.Y. 2018); Ramos v. Nielsen, 336 F. Supp.
3d 1075 (N.D. Cal. 2018); Centro Presente v. Trump,
332 F. Supp. 3d 393 (D. Mass. 2018).
Those courts have relied on, inter alia, the plaintiffs’ allegations that, prior to rescinding TPS status
for Haiti, the President reportedly stated that Haitians “all have AIDS,” that Haitian immigrant people
should not be admitted into the United States
through any proposed immigration plan, and that
African countries are “shithole countries.” See, e.g.,
Michael D. Shear & Julie Hirschfeld David, Stoking
Fears, Trump Defied Bureaucracy to Advance Immigration Agenda, N.Y. Times (Dec. 23, 2017). 24 The
President is further reported to have voiced a preference for immigrants from countries “like Norway.”
See Josh Dawsey, Trump derides protections for immigrants from ‘shithole’ countries, Wash. Post (Jan.
12, 2018). 25
This atmosphere of hostility—which has unquestionably made the question of citizenship contentious
on a national scale—would substantially amplify the
chilling effect caused by the Citizenship Status
Question on immigrants of color, including Black
immigrants. See Ross, 2019 WL 1052434, at *6, *30
(“The macro-environment, particularly the political
Available at https://www.nytimes.com/2017/12/23/us/politics/
trump-immigration.html/.
24
25 Available at https://www.washingtonpost.com/politics/trump-
attacks-protections-for-immigrants-from-shithole-countries-inoval-office-meeting/2018/01/11/bfc0725c-f711-11e7-91af-31ac72
9add94_story.html?utm_term=.3ca1973048c5.
22
environment around immigration, has the potential
to amplify the negative effect of the citizenship question on self-response rates. . . . [A] hostile macroenvironment combined with the inclusion of sensitive
questions on a survey can have a cumulative effect
that is greater than either of these factors would
have on their own.”).
This anti-immigrant rhetoric has paired with official action in multiple ways, causing immigrant populations to have significant concerns about issues
such as the “Muslim Ban,” as well as a general wariness of Immigration and Customs Enforcement. See,
e.g., Memorandum from the U.S. Census Bureau,
Ctr. For Survey Measurement to Assoc. Directorate
for Research & Methodology 1 (Sept. 20, 2017) (“In
particular, CSM researchers heard respondents express new concerns about topics like the ‘Muslim
ban,’ discomfort ‘registering’ other household members by reporting their demographic characteristics,
the dissolution of the ‘DACA’ (Deferred Action for
Childhood Arrival) program, repeated references to
Immigration and Customs Enforcement (ICE), etc.
FRs and FSs emphasized facing a ‘new phenomenon’
in the field and reported that respondents’ fears, particularly among immigrant respondents, have increased markedly this year.”). 26 Black immigrant
people exist at the nexus of many of these issues—for
example, approximately 11 percent of foreign-born
Muslims in the United States identify as Black. See
Muslims in America: Immigrants and those born in
26 Available at https://www2.census.gov/cac/nac/meetings/2017-
11/Memo-Regarding-Respondent-Confidentiality-Concerns.pdf.
23
U.S. see life differently in many ways, Pew Research
Ctr. (Apr. 17, 2018). 27
The chilling effect of the Citizenship Status Question will be amplified not just by the national political climate, but also by existing concerns regarding
surveillance and over-policing among Black immigrant communities. These concerns reflect the fact
that—despite zero evidence that Black immigrant
people commit crimes at a greater rate than other
immigrant people—while Black immigrant people
comprise 7.2 percent of the noncitizen population in
the United States, they comprise 20.3 percent of the
immigrant people facing deportation before the Executive Office for Immigration Review on criminal
grounds, compared to 10 percent of all immigrant
people overall. See NYU Law Immigrant Rights
Clinic, The State of Black Immigrants Part 2: Black
Immigrants in the Mass Criminalization System
20. 28
In sum, Black immigrant people—including Black
noncitizen people—represent a sizeable portion of
the overall Black population in the United States,
and of the overall immigrant population. Adding the
Citizenship Status Question to the 2020 census will
aggravate the existing collective fears and feed on
the current national environment of intense antiimmigrant and anti-Black sentiment in the United
States. Given that Black people are situated at the
Available at https://www.pewforum.org/essay/muslims-inamerica-immigrants-and-those-born-in-u-s-see-life-differentlyin-many-ways/.
27
Available at http://www.stateofblackimmigrants.com/assets/
sobi-fullreport-jan22.pdf.
28
24
intersection of multiple hard-to-count demographics,
the Citizenship Status Question threatens to deter
the census participation of a group of people—
citizens and noncitizens, documented and undocumented—who are already at risk of being undercounted by virtue of being Black, Black and immigrant, or Black and noncitizen. As a result, the Citizenship Status Question would have a detrimental
impact on the Black population’s political representation and receipt of critical public resources.
C. A complete and accurate count is necessary for racial equity.
The legacy of undercounting the Black population
and its various subgroups in the United States—
which is likely to worsen with the addition of the Citizenship Status Question—has concrete detrimental
effects for members of the Black community. Census
data is crucial not only for redistricting purposes, but
also “for such varied purposes as computing federal
grant-aid benefits, drafting of legislation, urban and
regional planning, business planning, and academic
and social studies.” Baldridge v. Shapiro, 455 U.S.
345, 353 n.9 (1982). Policymakers, federal agencies,
and civil rights advocates rely on census data to address barriers to equal opportunity in areas such as
voting rights, employment, education, housing, lending, healthcare, and criminal justice, among others.
See Race and Ethnicity in the 2020 Census: Improving Data to Capture a Multiethnic America, The
Leadership Conference & Educ. Fund 9 (Nov. 2014)
[hereinafter Race and Ethnicity in the 2020 Cen-
25
sus]. 29 Fair political representation, access to government services, and effective enforcement of civil
rights laws thus all depend on an accurate census
count.
Adding the Citizenship Status Question
would not improve citizenship data, but would depress response rates for the Black population while
further entrenching the discrimination that Black
people already experience in contexts that span every facet of life.
1. Political Representation
Because of the key role that census data plays in
political redistricting, the Black population undercount deprives Black people of fair and equal representation. By April 1 of the year following a census
year, the Census Bureau sends to each State a “redistricting file” or “P.L. 94-171 file,” which includes
data on population counts and selected characteristics for that State. 13 U.S.C. § 141(c); Race and Ethnicity in the 2020 Census, supra, at 9. The redistricting file includes information on race and the occupancy status of housing units. States use this data
to draft redistricting plans for congressional and
state legislative seats, as well as for local government positions such as county and city councils and
school boards. See id. at 9. Accordingly, census data
represents the foundation of political representation
at all levels of government.
The undercount of the Black population results in
areas with large concentrations of Black people having larger numbers of people per representative, diAvailable at http://civilrightsdocs.info/pdf/reports/CensusReport-2014-WEB.pdf.
29
26
rectly contravening the principle of “equality of representation,” which underlies the one-person, onevote rule. See Evenwel, 136 S. Ct. at 1131; see also
id. at 1132 (noting that “representatives serve all
residents, not just those eligible or registered to
vote,” and that equalizing the total population of districts “promotes equitable and effective representation”). Thus, accurate census data is necessary to
ensure that redistricting files accurately reflect the
composition of States and their localities.
2. Employment
After each census, the Census Bureau prepares the
EEO Tabulation file, which includes data on sex,
race, educational attainment, occupation, age, earnings, and unemployment status, among other things.
Race and Ethnicity in the 2020 Census, supra, at 11.
The EEO Tabulation file is then used by several government agencies—including the Equal Employment
Opportunity Commission (“EEOC”), the Department
of Justice, the Office of Federal Contract Compliance
Programs, and the Office of Personnel Management
(“OPM”)—for comparing an organization’s workforce
with the broader labor market and therefore enabling those agencies to monitor discrimination in the
workplace. See id. Census data also assists the
EEOC and OPM in ensuring diversity and inclusion
in the federal workforce. See id. The accuracy of
census data is therefore of the utmost importance in
permitting federal agencies to achieve equal employment opportunity for racial and ethnic minorities.
27
3. Education
Accurate census data is also crucial to safeguarding equal educational opportunities for all students.
Following this Court’s decision in Brown v. Board of
Education, local governments began depending on
census data to implement desegregation plans; that
data remains vital today in ensuring equal access to
quality education. See Jolie Lee, Still apart: Map
shows states with most-segregated schools, USA Today (May 15, 2014) 30; Chandi Wagner, School Segregation Then & Now: How to Move Toward a More
Perfect Union 6 (Jan. 2017). 31 Accurately identifying
school district populations allows local governments
to accurately direct education funding. Specifically,
census data ensures that inequities in teaching, facilities, academic programs, and other school resources
can be identified and addressed, including by facilitating the use of supplemental programs to remedy
the disadvantages facing schools in distressed areas.
See Melissa Etehad, The 2020 census could undercount 1 million kids – which means less money for
California schools, L.A. Times (July 9, 2018, 3:00
AM). 32 The use of this data ensures that all students, including Black students, other students of
color, and low-income students, have access to a
high-quality education. See Race and Ethnicity in
the 2020 Census, supra, at 12-13; The Leadership
Available at https://www.usatoday.com/story/news/nationnow/2014/05/15/school-segregation-civil-rights-project/9115823/.
30
31 Available at http://www.centerforpubliceducation.org/system/
files/School%20Segregation%20Full%20Report_0.pdf.
Available at https://www.latimes.com/nation/la-na-countingchildren-census-20180709-story.html.
32
28
Conference Educ. Fund, Factsheet: Will Your Kids
Count? Young children and their families in the
2020 census 1, 3 (last updated Apr. 17, 2018). 33 Race
and ethnicity data from the census are also essential
to ensuring meaningful enforcement of Title VI of the
Civil Rights Act. See Race and Ethnicity in the 2020
Census, supra, at 12 (Title VI of the Civil Rights Act
prohibits any state or local education agency or system from receiving federal funds when such an entity is found to be discriminating based on race or ethnicity). For example, census data can help identify
situations in which local or state education policymakers have systematically allocated more money
per student to areas comprised of a predominantly
white population as compared to areas comprised of
a predominantly Black population.
4. Fair Housing
Census data regarding race and ethnicity help public enforcement agencies, researchers, and fair housing advocates identify discriminatory practices that
deny access to housing based on factors other than
affordability, in violation of the Fair Housing Act.
See id. at 13. For example, census data has helped to
uncover discriminatory mortgage foreclosure practices, denial of credit, and predatory lending practices
in communities of color. See generally National Fair
Housing Alliance, Zip Code Inequality: Discrimination by Banks in the Maintenance of Homes in
Neighborhoods of Color (Aug. 27, 2014). 34
Available at http://civilrightsdocs.info/pdf/census/Fact-SheetUndercount-of-Young-Children.pdf.
33
Available at https://nationalfairhousing.org/wp-content/
uploads/2017/04/2014-08-27_NFHA_REO_report.pdf.
34
29
5. Criminal Justice
Census-based research has directly supported policymakers in addressing racial and ethnic disparities
in the criminal justice system, including, for example, the Department of Justice’s “Smart on Crime”
initiative. See Ashley Nellis, The Sentencing Project,
The Color of Justice: Racial and Ethnic Disparity in
State Prisons 3 (Jun. 2016)35; see generally Dep’t of
Justice, Smart on Crime: Reforming the Criminal
Justice System for the 21st Century (Aug. 2013). 36
Civil rights activists have also relied on research incorporating census data to continue to push for legislative reform to abolish the death penalty, which is
plagued by racial bias, particularly towards Black
defendants. Race and Ethnicity in the 2020 Census,
supra, at 14. Census data is therefore central in
helping policymakers, law enforcement agencies, and
advocates work towards minimizing disparities in
the criminal justice system, including those that disproportionately affect Black people.
** *
The varied ways that census data is used to determine political structure and government policy illustrate the importance of an accurate census. Given
that the census has historically been inaccurate because of its systematic undercount of the Black population, it is particularly urgent to avoid any modification to the 2020 census that could exacerbate this
Available at https://www.sentencingproject.org/wp-content/
uploads/2016/06/The-Color-of-Justice-Racial-and-EthnicDisparity-in-State-Prisons.pdf.
35
Available at https://www.justice.gov/sites/default/files/ag/
legacy/2013/08/12/smart-on-crime.pdf.
36
30
well-documented historical undercounting.
Any
change that creates a risk of increasing such undercounting—as the Citizenship Status Question unquestionably does, see pp. 11-24, supra—should be
reviewed with particular care and caution, as it risks
further depriving the Black population of fair representation, freedom from racial discrimination, and
equal opportunity.
II. LDF and other civil rights organizations’
vast experience litigating under the Voting
Rights Act confirms that the Citizenship
Status Question is unnecessary to enforce
Section 2 of the Act.
Despite the tremendous damage that adding the
Citizenship Status Question to the census would
cause Black people and other racial minorities by severely jeopardizing accurate enumeration, Petitioners insist that their decision is justified by the need
to enforce Section 2 of the Voting Rights Act. That
assertion is demonstrably false. LDF and other civil
rights organizations have extensive and longestablished experience bringing Section 2 cases under the Act. Based on that experience and as
demonstrated below, we can unequivocally represent
that the Citizenship Status Question is not necessary
for enforcement of that provision.
Specifically, LDF has used the Voting Rights Act of
1965 and its amendments successfully to defend and
protect minority voting rights using census data for
over 50 years. No citizenship status question has
been asked on the primary decennial census form
since 1950—a span of almost 70 years. The civil
rights laws should not be used as a pretext to justify
31
a policy that will undermine the very communities
that Congress enacted Section 2 to protect.
1. Citizenship population data is used within the
context of Section 2 vote dilution claims. Such
claims allege that particular electoral maps have the
effect of diluting the ability of minority voters to elect
their candidates of choice and participate equally in
the political process. Section 2 vote dilution plaintiffs must demonstrate that: (1) the minority group is
“sufficiently large and geographically compact to
constitute a majority in a single-member district”; (2)
the minority group is “politically cohesive,” meaning
that members of the minority group tend to support
the same candidates of choice; and (3) “the white majority votes sufficiently as a bloc to enable it . . . usually to defeat the minority’s preferred candidate.”
Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986).
If the plaintiff makes this threshold showing, the
court must undertake a holistic analysis to determine “whether as a result of the challenged practice
or structure plaintiffs do not have an equal opportunity to participate in the political processes and to
elect candidates of their choice.” Id. at 44 (internal
citation and quotation omitted). This analysis is informed by a list of “objective factors,” including “the
history of voting-related discrimination in the State
or political subdivision,” the “use of overt or subtle
racial appeals in political campaigns,” and “the extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their
32
ability to participate effectively in the political process.” Id. at 44-45. 37
Citizenship data is one piece of evidence relevant
to one aspect of this multi-stage, multi-factor inquiry: whether the minority group’s eligible voter
population is large enough to allow minority voters
to elect their candidates of choice. See League of Latin Am. Citizens (LULAC) v. Perry, 548 U.S. 399, 429
(2006) (calling citizenship data a “starting point” for
the Section 2 inquiry). 38 Existing data sources, including citizenship data obtained through the census
long-form questionnaire, have proven more than sufficient for this threshold purpose. For the entire history of the Voting Rights Act, the Census Bureau has
37 The other “objective factors” are:
the extent to which voting in the elections of the
State or political subdivision is racially polarized; the extent to which the State or political
subdivision has used voting practices or procedures that tend to enhance the opportunity for
discrimination against the minority group, such
as unusually large election districts, majority
vote requirements, and prohibitions against bullet voting; the exclusion of members of the minority group from candidate slating processes; . . . the extent to which members of the minority group have been elected to public office in
the jurisdiction . . . evidence demonstrating that
elected officials are unresponsive to the particularized needs of the members of the minority
group and [whether] the policy underlying the
State's or the political subdivision's use of the
contested practice or structure is tenuous.
Thornburg v. Gingles, 478 U.S. 30, 44-45 (1986).
38 Citizenship data may also be relevant in Section 2 vote dilu-
tion litigation to evaluate the sufficiency of remedial maps.
33
collected citizen voting-age population (“CVAP”) data, first through the long-form census—a longer version of the standard census form sent to a subset of
households—and more recently through the American Community Survey (“ACS”), which is a monthly
long-form survey issued to a representative statistical sample of the U.S. population. See Testimony of
Lawyers’ Committee for Civil Rights Under Law
Submitted by Kristen Clark to the U.S. House of
Representatives Judiciary Committee Subcommittee
on the Constitution and Civil Justice Hearing on
“Questions Regarding the U.S. Census” at 3-4 (June
8, 2018). Monthly ACS data is then provided using
rolling averages to ensure reliable estimates. See
Chand et al., Multi-Year Averages From a Rolling
Sample Survey, U.S. Census Bureau, at 1 (2000). 39
Moreover, many States and localities track political
participation data by race—this includes data on
voter registration and turnout rates. See Letter from
Native American Voting Rights Coalition to Jennifer
Jessup 5 (Aug. 7, 2018) [hereinafter NAVRC letter]
(discussing how political participation data can be
used to support a Section 2 Voting Rights Act claim).
2. Civil rights organizations, such as LDF, the
Lawyers’ Committee for Civil Rights Under Law, and
the Mexican American Legal Defense and Educational Fund (“MALDEF”), have used the existing data to bring successful Section 2 vote dilution cases.
See, e.g., Terrebonne Parish Branch NAACP v.
Jindal, 274 F. Supp. 3d 395, 420 (M.D. La. 2017);
Georgia State Conference NAACP v. Fayette Cnty.
Bd. of Commr’s, 118 F. Supp. 3d 1338, 1343-44 (N.D.
Available at https://www.census.gov/content/dam/Census/
library/working-papers/2000/acs/2000_Chand_01.pdf.
39
34
Ga. 2015); Testimony of Lawyers’ Committee for Civil Rights Under Law Submitted by Kristen Clarke to
the U.S. House of Representatives Judiciary Committee Subcommittee on the Constitution and Civil
Justice Hearing on “Questions Regarding the U.S.
Census” at 3-4 (June 8, 2018); MALDEF Letter, supra, at 4. Far from calling the sufficiency of this data into question, and contrary to the assertions of
amicus the Public Interest Legal Foundation, this
Court and others have routinely upheld the use of
existing data sources in the Section 2 vote dilution
context. See, e.g., LULAC, 548 U.S. at 423-42 (finding vote dilution under Section 2 using CVAP data);
Barnett v. City of Chicago, 141 F.3d 699, 702-04 (7th
Cir. 1998) (holding that existing CVAP data was adequate to ensure equality of voting power under the
Voting Rights Act); Negron v. City of Miami Beach,
113 F.3d 1563, 1569-70 (11th Cir. 1997) (recognizing
that the “use of sample data is a long-standing statistical technique” and finding existing citizenship
data sufficient in the Section 2 vote dilution context);
Corbett v. Sullivan, 202 F. Supp. 2d 972, 984-85
(E.D. Mo. 2002) (considering political participation
data in evaluating redistricting proposals for compliance with Section 2). As explained by Judge Furman
in this case, “there is no indication in the record that
the Department of Justice and civil rights groups
have ever, in the fifty-three years since the Voting
Rights Act was enacted, suggested that citizenship
data collected as part of the decennial census would
be helpful, let alone necessary, to litigate such
claims.” New York v. U.S. Dep’t of Commerce, 315 F.
Supp. 3d 766, 808 (S.D.N.Y. 2018).
3. Beyond the fact that existing data collected by
the Census Bureau is plainly sufficient for Section 2
35
enforcement purposes, new citizenship data collected
from the decennial census in response to the Citizenship Status Question would be less, not more, accurate. See Ross, 2019 WL 1052434, at *63; NAVRC
Letter, supra, at 5. As explained, pp. 11-17, supra,
census data relies on self-reporting and is prone to
undercounting, particularly of members of minority
groups. See Ross, 2019 WL 1052434, at *11. By contrast, data derived from statistical sampling is corrected to account for disparate response rates, diminishing undercounting concerns. See American Community Survey Design and Methodology, Chapter 11,
Weighting and Estimation, U.S. Census Bureau 10
(Rev. Dec. 2010) [hereinafter Weighting and Estimation]. 40 Political participation data does not rely on
self-reporting at all. See Ross, 2019 WL 1052434, at
*63. Thus, existing citizenship data is, if anything,
more accurate than the data Petitioners seek to collect with the Citizenship Status Question. See, e.g.,
id.; MALDEF Letter, supra, at 6-7. Moreover, decennial census data captures only a snapshot of the
U.S. population every ten years. 41 By contrast, ACS
40 Available at https://www.census.gov/content/dam/Census/
library/publications/2010/acs/Chapter_11_RevisedDec2010.pdf.
41 Amici Oklahoma et al. highlight (at 15) the ACS’s 1-year es-
timates as being “only reliable for 65,000 people or more,” but
ignore the fact that, in practice, it is the 5-year estimate produced by ACS that is used in Section 2 litigation, not the 1-year
estimate. See Chand et al., Multi-Year Averages From a Rolling
Sample Survey, U.S. Census Bureau, at 1 (2000), https://www.
census.gov/content/dam/Census/library/working-papers/
2000/acs/2000_Chand_01.pdf; see also Citizen Voting Age Population by Race and Ethnicity, Census.gov (Feb. 1, 2018),
https://www.census.gov/programs-surveys/decennialcensus/about/voting-rights/cvap.2019.html (identifying the Census Bureau’s data on citizen voting age population by race and
36
CVAP population averages are based on monthly
surveys, which capture population trends over time.
See Weighting and Estimation, supra, at 5. Treating
citizenship data from the decennial census as more
reliable than ACS CVAP data would therefore
threaten to obscure population trends, even though
the growth rates of minority populations often far
exceed those of white populations. See, e.g., Benavidez v. City of Irving, Tex., 638 F. Supp. 2d 709,
730 (N.D. Tex. 2009) (relying on ACS data to determine growth trend of Hispanic CVAP and finding a
violation of Section 2 of the Voting Rights Act).
Compounding this harm is the likelihood that, as
explained, pp. 17-20, supra, the Citizenship Status
Question would depress response rates of immigrant
communities, making any new citizenship data even
less reliable. The sufficiency of existing data sources,
and Petitioners’ inability to show that the Citizenship Status Question would help, rather than hurt,
the Census Bureau’s ability to obtain accurate citizenship data, further supports Judge Furman’s assessment that the “evidence suggest[s] that Secretary Ross’s stated rationale for adding the [citizenship status] question is pretextual.” New York, 315
F. Supp. 3d at 775; see also Ross, 2019 WL 1052434,
at *1 (“These facts and other evidence . . . demonstrate that Secretary Ross’s reliance on VRA enforcement to justify inclusion of the citizenship question was mere pretext[.]”). This pretextual justification, part of a long and shameful history of manipulating the census to avoid an accurate enumeration
of the Black population, should be rejected.
ethnicity as “sourced from the American Community Survey
(ACS) 5-year estimates”).
37
* * *
Simply put, the civil rights organizations that have
successfully enforced Section 2 of the Voting Rights
Act since its inception are nearly unanimously opposed to the addition of the Citizenship Status Question. See, e.g., MALDEF Letter, supra; NAVRC Letter, supra. There is no evidence supporting Petitioners’ assertion that the addition of the Citizenship
Status Question to the 2020 census would enable
better Section 2 enforcement—in fact, the opposite is
true. Using a pretextual appeal to the Voting Rights
Act to undermine the same communities that the Act
was enacted to protect constitutes unquestionably
arbitrary and capricious, and potentially discriminatory, government action.
CONCLUSION
The judgment of the district court should be
affirmed.
Respectfully submitted.
SHERRILYN A. IFILL
JANAI S. NELSON
SAMUEL SPITAL
LEAH C. ADEN
AARON SUSSMAN
J. ZACHERY MORRIS
NAACP LEGAL DEFENSE &
EDUCATIONAL FUND, INC.
40 Rector Street, 5th Floor
New York, NY 10006
(212) 965-2200
April 1, 2019
DAVID J. ZIMMER
Counsel of Record
JOSHUA J. BONE
GOODWIN PROCTER LLP
100 Northern Ave.
Boston, MA 02210
dzimmer@goodwinlaw.com
TIFFANY MAHMOOD
WILLIAM UHR
MADELINE DILASCIA
GOODWIN PROCTER LLP
Counsel for Amicus Curiae
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.