# Amicus Curiae Brief — Dep't of Commerce v. New York, 139 S. Ct. 1249 (2019) (No. 18-966)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2019

## Text

No. 18-966

IN THE

Supreme Court of the United States

DEPARTMENT OF COMMERCE, ET AL.,

Petitioners,
v.

NEW YORK, ET AL.,
Respondents.

On Writ of Certiorari Before Judgment
to the United States Court of Appeals
for the Second Circuit

BRIEF OF CURRENT MEMBERS OF CONGRESS
AND BIPARTISAN FORMER MEMBERS OF
CONGRESS AS AMICI CURIAE
IN SUPPORT OF RESPONDENTS

ELIZABETH B. WYDRA
BRIANNE J. GOROD*
DAviD H. GANS
CONSTITUTIONAL
ACCOUNTABILITY CENTER
1200 18th Street NW
Suite 501
Washington, D.C. 20036
(202) 296-6889
brianne@theusconstitution.org

Counsel for Amici Curiae

April 1, 2019 * Counsel of Record
ei itt i iat Te ti eae RE

Il.

If.

TABLE OF CONTENTS

The Text and History of the Census
Clause Require the Federal
Government To Count All Persons To
Ensure Equal Representation for All
PID ncidecesdansnaticdeniieiiialebiihdeiiagpbntaainassidiailictins

The Fourteenth Amendment
Reaffirmed the Constitutional
Obligation To Count All Persons,
Citizen and Non-Citizen Alike.............

The Census Act Prohibits the Addition of
New Census Questions Where the
Relevant Information May Be Gathered
Using Existing Records .............................

The Goal of Enforcing the Voting Rights
Act Does Not Justify Ignoring the
Requirements of the Constitution and the

(i)

Oo — — &

12

15

i

TABLE OF AUTHORITIES
Page(s)
Cases

Adams Fruit Co. v. Barrett,

ee aie 20
Barnhart v. Sigmon Coal Co.,

sk Fo Sere 18
Caring Hearts Pers. Home Servs., Inc. v.

Burwell,

824 F.3d 968 (10th Cir. 2016)............... 18
Dep't of Commerce v. U.S. House of

Representatives,

4 GS es 9
Encino Motorcars, LLC v. Navarro,

| &. § |. 40 19
Epic Sys. Corp. v. Lewis,

fe BS renee 6, 20
Evenwel v. Abbot,

fh Ul 3, 7, 12, 14
Franklin v. Massachusetts,

Bs I ci csncnnesensceannsunconicnines 17
King v. Burwell,

196 S. Ce. S488 GOIG)...........2...02.........-. 19
Michigan v. EPA,

136 S. Ce. SEBS CBO1G).........000000000.--......- 19
Montes v. City of Yakima,

40 F. Supp. 3d 1377

SRG TIE, CIs sicncccricoccnrentediteumrvediicuaoas 22

ill
TABLE OF AUTHORITIES - cont’d

Page(s)
Murphy v. Smith,

BG Pe i ccciicniccicversnccstcccesecs 16
Peters v. Hobby,

I I I ices icectcsscheseutnolbvenatin 18
SEC v. Chenery Corp.,

Se Te i EE ciccasecncitsceniscdectnsenesenes 19
Utah v. Evans,

536 U.S. 452 (2002)..............c.0cceeee- 3, 4, 8, 9, 10
Utility Air Reg. Grp. v. EPA,

lL EAE EE Re 18
Wesberry v. Sanders,

I, i 3
I i cl a 16
a ae teen ere 16
a passim
16 U.S.C. § 1456(c)(1)(A).................2cceeeeeee 19
BD Ua. © Bi encitccsccccinecveccsnscnssss 19
42 U.S.C. § 2OOOcc-B(®) ..........00000000...200000 19
Cong. Globe, 39th Cong., Ist Sess.

RRNA ES ee 13

iv
TABLE OF AUTHORITIES - cont’d
Page(s)
2 The Debates in the Several State Conven-
tions on the Adoption of the Federal Con-
stitution (Jonathan Elliot ed., 2d ed.
iii aitntninenbesinereithasiteih tenia sdiieigtiieairic rt 8

4 The Debates in the Several State Conven-
tions on the Adoption of the Federal Con-
stitution (Jonathan Elliot ed., 2d ed.

BERR Fes Srna Bl re oe 6
The Declaration of Independence

PERE AERATE SY been 7
H.R. Conf. Rep. 94-1719 (1976) ............... 16

Progress Rep. on the 2020 Census: Hearing
Before the H. Comm. on Oversight &
Gov't Reform, 115th Cong. (May 8,

ERB Se LE SS a 21
1 The Records of the Federal Convention of

1787 (Max Farrand ed., 1911).............. passim
2 The Records of the Federal Convention of

1787 (Max Farrand ed., 1911).............. 11

Report of the Joint Committee on Recon-
struction, at the First Session Thirty-
Ninth Congress (1866) .............c0cc0c000000. 13

U.S. Const. amend. XIV, § 2 000.000.000.000... 2,12
if fe Se & eee passim

v
TABLE OF AUTHORITIES - cont'd

Page(s)
Books. Artic] 1 Oth suthoriti
Akhil Reed Amar, America’s Constitution:
A Biography (2005) ....................cc00000000s 8, 11

Margo Anderson, The Census and the Fed-
eral Statistical System: Historical Per-
spectives, 631 Annals of Am. Acad. of Pol.
& Soc. Sci. 152 (2O10)............cccccccccseveees 8

The Federalist No. 36 (Alexander Hamil-
ton) (Clinton Rossiter rev. ed., 1999) ... 3, 10

1 Samuel Johnson, A Dictionary of the Eng-
lish Language (4th rev. ed. 1773)......... 9

James Madison, Census (Feb. 2, 1790), in
13 The Papers of James Madison (J.C.A.
Stagg ed., digital ed. 2010) ................... 9

Jack N. Rakove, Original Meanings: Poli-
tics and Ideas in the Making of the Con-
Ie I acinvcstacestcintdientevestinstemens 7

2 Joseph Story, Commentaries on the Con-
stitution § 633 (1833) .....................c000 10

Gordon S. Wood, The Creation of the Amer-
ican Republic, 1776-1787 (1998 ed.).... 8

l
INTEREST OF AMICI CURIAE'

Amici curiae are current members of Congress and
bipartisan former members of Congress who have a
strong interest in ensuring that the Census Bureau re-
spects its constitutional duty to count all persons liv-
ing in the United States, citizen and noncitizen alike.
As current and former members of Congress, amici
know that Census data is used to make critically im-
portant decisions, including regarding how represent-
atives are apportioned in Congress; how Electoral Col-
lege votes are distributed amongst the states; how
state, local, and congressional districts are drawn; and
how billions of dollars of federal funds to local commu-
nities are allocated. Thus, amici also appreciate that
failing to count all persons in the United States—as
our Constitution requires—would be enormously dam-
aging, and the consequences of an unfair, inaccurate
count would endure for at least the next ten years, and
possibly much longer. Amici thus have a strong inter-
est in this case.

A full listing of amici appears in the Appendix.
SUMMARY OF ARGUMENT

On March 16, 2018, Commerce Secretary Wilbur
Ross issued a memorandum directing the Census Bu-
reau to add a question to the 2020 Census asking all
persons residing in the United States to divulge their

' The parties have consented to the filing of this brief and their
letters of consent have been filed with the Clerk. Under Rule 37.6
of the Rules of this Court, amici state that no counsel for a party
authored this brief in whole or in part, and no counsel or party
made a monetary contribution intended to fund the preparation
or submission of this brief. No person other than amici or their
counsel made a monetary contribution to its preparation or sub-
mission.

2

citizenship status. To justify this order, Secretary
Ross blatantly manipulated the administrative pro-
cess. To start, he manufactured a Department of Jus-
tice request to add the citizenship question—a fact he
deliberately hid from members of Congress. Then, set
on adding a citizenship question regardless of what the
administrative record showed about the need for such
a question, Secretary Ross turned a blind eye to reams
of evidence that demonstrated that the addition of this
new question was unnecessary and would undermine
the accuracy of the Census. Secretary Ross’s actions
flouted both the government's constitutional obliga-
tion under the Census Clause to ensure a count of all
persons and the laws Congress passed to safeguard the
integrity of this constitutionally mandated count.

The Census is the cornerstone of our democracy.
To ensure equal representation for all, the Constitu-
tion, through both Article I, Section 2 and the Four-
teenth Amendment, explicitly requires the federal gov-
ernment to accurately conduct an “actual Enumera-
tion” of the people. U.S. Const. art. I, § 2, cl. 3. This
language places a clear duty on the federal govern-
ment to count the “whole number of persons in each
State,” id. amend. XIV, § 2. In other words, the federal
government must count al/ people living in the United
States, whether they are citizens or noncitizens,
whether they were born in the United States or in a
distant part of the world.

This constitutional imperative that there be an
“actual Enumeration,” id. art. 1, § 2, cl. 3, of the people
reflects the Framers’ conclusion—first at the nation’s
Framing more than two centuries ago and then again
in the aftermath of our nation’s bloody civil war—that
total population is the “natural & precise measure of
Representation,” 1 The Records of the Federal Conven-
tion of 1787, at 605 (Max Farrand ed., 1911)

3

[hereinafter Records of the Federal Convention], and
“the only true, practical, and safe republican princi-
ple,” Cong. Globe, 39th Cong., Ist Sess. 2767 (1866);
id. (“Numbers, not voters; numbers, not property; this
is the theory of the Constitution.”). “As the Framers of
the Constitution and the Fourteenth Amendment com-
prehended, representatives serve all residents... .”
Evenwel v. Abbot, 136 S. Ct. 1120, 1132 (2016). Thus,
the Constitution draws no distinction between citizens
and noncitizens, but rather requires that the “whole
immigrant population should be numbered with the
people and counted as part of them.” Cong. Globe,
39th Cong., lst Sess. 432. It imposes a constitutional
duty on the federal government to conduct a complete
and accurate count of everyone in order to realize the
“Constitution's plain objective of making equal repre-
sentation for equal numbers of people the fundamenta!
goal for the House of Representatives.” Wesberry v.
Sanders, 376 U.S. 1, 18 (1964).

The Constitution’s mandate that the federal gov-
ernment count the population of the entire nation to
ensure equal representation for all persons creates a
“strong constitutional interest in accuracy.” Utah v.
Evans, 536 U.S. 452, 478 (2002). The Framers knew
that “those who have power in their hands will . . . al-
ways when they can .. . increase it,” 1 Records of the
Federal Convention at 578. They thus enshrined the
requirement that all persons be counted directly into
the Constitution to “shut[] the door to partiality or op-
pression,” The Federalist No. 36, at 188 (Alexander
Hamilton) (Clinton Rossiter rev. ed., 1999), and pre-
vent the government from using “a mode” of taking the
census “as will defeat the object[] and perpetuate the
inequality,” 1 Records of the Federal Convention at
571. In short, the Framers “placed a high] value on
preventing political manipulation,” Evans, 536 U.S. at

4

506 (Thomas, J., concurring in part and dissenting in
part), and the federal government may not manipulate
the Census in order to evade the Constitution’s re-
quirement that all persons be counted.

While the Framers mandated in the Constitution
itself that there be an “actual Enumeration” of the peo-
ple, U.S. Const. art. I, § 2, cl. 3, they “did not write
detailed census methodology into the Constitution,”
Evans, 536 U.S. at 479 (majority opinion). Instead,
they left it to Congress to prescribe the “Manner” of
taking the Census. U.S. Const., art. I, § 2, cl. 3. Using
this express constitutional power, Congress has pro-
hibited the Commerce Secretary from adding new
questions to the Census when the information those
questions would produce could be obtained from ad-
ministrative records. By prohibiting unnecessary Cen-
sus questions, Congress sought to reduce the burden
on Census respondents and to ensure that the consti-
tutionally required count of all persons remains pre-
dominant.

Specifically, Section 6 of the Census Act provides,
in relevant part, that “[t]o the maximum extent possi-
ble and consistent with the kind, timeliness, quality
and scope of the statistics required, the Secretary shall
acquire and use information available” from adminis-
trative records “instead of conducting direct inquiries.”
13 U.S.C. § 6(c). As the statute’s plain language re-
flects, the Secretary must “acquire and use” adminis-
trative records to satisfy its information-gathering
needs “[t]o the maximum extent possible” rather than
“conducting direct inquiries,” id., which could deter
participation and detract from the count of all per-
sons—the “actual Enumeration” the Constitution ex-
pressly mandates, U.S. Const. art. I, § 2, cl. 3. This is
an explicit, clear-cut command prohibiting the

5

addition of new questions to the Census where the rel-
evant information may be gathered using existing rec-
ords.

Secretary Ross’s decision to add the citizenship
question cannot be squared with this requirement, and
tellingly Secretary Ross never even addressed this pro-
vision in his memorandum ordering the addition of the
citizenship question. When Secretary Ross first for-
mally proposed asking all persons to report their citi-
zenship status, the Census Bureau objected that a
mandatory citizenship question would “harm|] the
quality of the census count, and would use substan-
tially less accurate citizenship data than are available
from administrative sources.” See App. Cert. 47a; see
id. at 9a (“[H]undreds of thousands—if not millions—
of people will go uncounted in the census if the citizen-
ship question is included.”). Secretary Ross demanded
the addition of the citizenship question anyway, ignor-
ing Congress’s directive to “acquire and use” adminis-
trative records and avoid “direct inquiries” “[tjo the
maximum extent possible.” 13 U.S.C. § 6(c). This vio-
lation of an explicit limitation contained in the Census
Act requires that Secretary Ross’s order be set aside.”

Secretary Ross’s proffered justification for the citi-
zenship question—to better enforce the Voting Rights
Act—cannot justify the Secretary’s blatant violation of
Section 6(c). First of all, the Secretary has no exper-
tise with respect to the Voting Rights Act and no

“ In addition to the Section 6(c) violation, the district court held
that the addition of the citizenship question violated the Admin-
istrative Procedure Act in “multiple independent ways,” including
that the decision was arbitrary and capricious, violated proce-
dural requirements, and concealed the true basis for the decision.
App. Cert. 9a-10a. This brief does not address those independent
bases for affirmance.

6

authority to enforce it. See Epic Sys. Corp. v. Lewis,
138 S. Ct. 1612, 1629 (2018). Second, citizenship data
could have been obtained from administrative records
in a manner entirely consistent with the Census Act.
Third, a citizenship question has never been viewed as
necessary to ensure robust protection of the right to
vote free from racial discrimination. Indeed, since the
passage of the Voting Rights Act in 1965, the Census
has never asked all persons to report their citizenship
status. In sum, the Secretary offers nothing more than
a specious explanation for his decision, and this expla-
nation cannot justify undercutting what the Constitu-
tion mandates: a count of al/ the people, regardless of
their citizenship status.

ARGUMENT

I. The Text and History of the Census Clause
Require the Federal Government To Count
All Persons To Ensure Equal Representation
for All Persons.

In order to ensure that “the foundations of this gov-
ernment should be laid on the broad basis of the peo-
ple,” 4 The Debates in the Several State Conventions on
the Adoption of the Federal Constitution 21 (Jonathan
Elliot ed., 2d ed. 1836) [hereinafter Elliot’s Debates},
Article I, Section 2 provides that “Representatives. . .
shall be apportioned among the several States which
may be included within this Union, according to their
respective Numbers, which shall be determined by
adding to the whole Number of free Persons . . . three
fifths of all other Persons.” U.S. Const. art. I, § 2,
cl.3. To ensure a proper count of the nation’s total pop-
ulation, Article I, Section 2 requires that an “actual
Enumeration shall be made within three Years after
the first Meeting of the Congress of the United States,

7

and within every subsequent Term of ten Years, in
such Manner as they shall by Law direct.” /d.

In choosing the total-population standard, the
Framers decreed that “as all authority was derived
from the people, equal numbers of people ought to have
an equal no. of representatives.” 1 Records of the Fed-
eral Convention at 179. Determining representation
in Congress based on a count of all persons reflected
that “every individual of the community at large has
an equal right to the protection of government.” /d. at
473; id. at 477 (“[T]he people shd. be repre[se]nted in
proportion to [their] numbers, the people then will be
free... .”); Evenwel, 136 S. Ct. at 1129 (explaining that
“the principle of representational equality figured
prominently in the decision to count people, whether
or not they qualify as voters”).

The idea that all persons should enjoy equal repre-
sentation had deep roots in America’s bid for inde-
pendence from England. The Framers were familiar
with what James Madison called the “vicious repre-
sentation in G. B.,” 1 Records of the Federal Conven-
tion at 464, in which “so many members were elected
by a handful of easily managed voters in ‘pocket’ and
‘rotten’ boroughs, while populous towns went grossly
underrepresented or not represented at all,” Jack N.
Rakove, Original Meanings: Politics and Ideas in the
Making of the Constitution 210 (1996). The Declara-
tion of Independence charged that King George III had
forced the colonists to “relinquish the right of Repre-
sentation in the Legislature, a right inestimable to
them and formidable to tyrants only.” The Declaration
of Independence para. 5 (U.S. 1776). Having seen the
political system manipulated for partisan ends in Eng-
land, the Framers strove to design a system that would
reflect the principle that a “free and equal representa-
tion is the best, if not the only foundation upon which

8

a free government can be built.” 2 Elliot’s Debates at
25 (emphasis omitted). Of all “the electoral safeguards
for the representational system,” none “was as im-
portant to Americans as equality of representation.”
Gordon S. Wood, The Creation of the American Repub-
lic, 1776-1787, at 170 (1998 ed.).

To achieve these goals, the Framers imposed on the
federal government a duty to conduct a complete and
accurate count of all people residing in the nation, cre-
ating a structural protection for equal representation.
This was a revolutionary undertaking. “While other
nations had attempted population counts, none had
made the count itself an important method of main-
taining democracy by mandating it through a founding
document.” Evans, 536 U.S. at 510 (Thomas, J., con-
curring in part and dissenting in part); Margo Ander-
son, The Census and the Federal Statistical System:
Historical Perspectives, 631 Annals of Am. Acad. of Pol.
& Soc. Sci. 152, 154 (2010) (“With thle Census
Clause’s] words, the United States became the first na-
tion in the history of the world to take a population
census and use it to allocate seats in a national assem-
bly according to population.”). Thus, at a time when
“democratic self-government existed almost nowhere
on earth,” Akhil Reed Amar, America’s Constitution: A
Biography 8 (2005), the Framers made the Census the
cornerstone of the democratic system of government
they created.

The text of Article 1, Section 2 provided a “conjec-
tural ratio” for the apportionment of representatives
“to prevail in the outset,” but the Framers refused to
permit guesswork to be used going forward. 1 Records
of the Federal Convention at 578; Evans, 536 U.S. at
475 (“[T]he original allocation of seats in the House
was based on a kind of ‘conjecturje],’ in contrast to the
deliberately taken count that was ordered for the

9

future.” (quoting 1 Records of the Federal Convention
at 578-79)). As George Mason argued, “a Revision
from time to time according to some permanent & pre-
cise standard” was “essential to [the] fair representa-
tion required in the Ist. branch.” 1 Records of the Fed-
eral Convention at 578. While the Framers did not
prescribe a “detailed census methodology,” Evans, 536
U.S. at 479, they established a firm rule that the polit-
ical branches cannot vary: all persons must be
counted, regardless of where they are from.

Wary that those in power might try to undermine
the promise of equal representation for all, the Fram-
ers insisted on an “actual Enumeration’—a national
count of all inhabitants—once every ten years. U.S.
Const. art. I, § 2, cl. 3. As Founding-era dictionaries
make clear, “an ‘enumeration’ requires an actual
counting.” Dep't of Commerce v. U.S. House of Repre-
sentatives, 525 U.S. 316, 346 (1999) (Scalia, J., concur-
ring in part) (collecting dictionary definitions); Evans,
536 U.S. at 475 (“Late-18th-century dictionaries define
the word simply as an ‘act of numbering or counting
over ....” (quoting 1 Samuel Johnson, A Dictionary of
the English Language 658 (4th rev. ed. 1773))). As
James Madison observed during debates over the First
Census Act, while “there will be more difficulty at-
tendant on taking the census, in the way required by
the [Cjonstitution,” a count of all persons would pro-
vide “the exact number” rather than “assertions and
conjectures.” James Madison, Census (Feb. 2, 1790),
in 13 The Papers of James Madison (J.C.A. Stagg ed.,
digital ed. 2010). The constitutional requirement of an
“actual Enumeration,” U.S. Const. art. I, § 2, cl. 3,
would help ensure that “every individual of the com-
munity at large has an equal right to the protection of
government,” 1 Records of the Federal Convention at

10

473, and prevent political manipulation of our demo-
cratic system of government.

As the debates over the Census Clause at the Con-
stitutional Convention reflect, the Framers under-
stood that “those who have power in their hands will
not give it up while they can retain it. On the [c]on-
trary we know they will always when they can rather
increase it.” Jd. at 578; Evans, 536 U.S. at 500
(Thomas, J., concurring in part and dissenting in part)
(observing that “|djebate about apportionment and the
census .. . focused for the most part on creating a
standard that would limit political chicanery’). The
Framers’ decision to mandate a national count of all
inhabitants every ten years to ensure equal represen-
tation for all persons “had the recommendation of
great simplicity and uniformity in its operation, of be-
ing generally acceptable to the people, and of being less
liable to fraud and evasion, than any other, which
could be devised.” 2 Joseph Story, Commentaries on
the Constitution § 633, at 107 (1833). As Alexander
Hamilton emphasized, “[a]n actual census or enumer-
ation of the people must furnish the rule, a circum-
stance which effectively shuts the door to partiality or
oppression.” The Federalist No. 36, supra, at 188 (Al-
exander Hamilton).

In short, both supporters and opponents recognized
that a fixed constitutional standard would limit oppor-
tunities for manipulation of our representative democ-
racy. Gouverneur Morris opposed the Census Clause
as “fettering the Legislature too much,” but he recog-
nized that if the mode for taking the Census was “un-
fixt the Legislature may use such a mode as will defeat
the object[] and perpetuate the inequality.” 1 Records
of the Federal Convention at 571. In response, Ed-
mund Randolph pointed out that “[i]f the danger sug-
gested by Mr. Govr. Morris be real, of advantage being

11

taken of the Legislature in pressing moments, it was
an additional reason, for tying their hands in such a
manner that they could not sacrifice their trust to mo-
mentary considerations.” Jd. at 580. This argument
carried the day, and the Framers concluded that “the
periods & the rule of revising the Representation ought
to be fixt by the Constitution.” Jd. at 582.

The Constitution’s rule that representatives would
be apportioned based on an “actual Enumeration” of
the people, U.S. Const. art. I, § 2, cl. 3, however, was
undercut by the Three-Fifths Clause, which provided
that, for the purpose of determining representation in
Congress, enslaved persons would be counted as three-
fifths of a person. “The more slaves the Deep South
could import from the African continent—innocents
born in freedom and kidnapped across an ocean to be
sold on auction blocks—the more seats it would earn
in the American Congress.” Amar, supra, at 90. Dur-
ing the debates in the Convention, Gouverneur Morris
and others argued strenuously against the adoption of
the Three-Fifths Clause, pointedly asking “[u]pon
what principle is it that the slaves shall be computed
in the representation? Are they men? Then make
them Citizens & let them vote? Are they property?
Why then is no other property included?” 2 Records of
the Federal Convention at 222. The upshot of the
Clause was that “the inhabitant of Georgia and S. C.
who goes to the coast of Africa, and . . . tears away his
fellow creatures from their dearest connections &
dam(n)s them to the most cruel bondages, shall have
more votes in a Govt. instituted for protection of the
rights of mankind.” /d.

Despite these arguments, the Convention approved
the Three-Fifths Clause, which it deemed a compro-
mise necessary to ensure the Constitution’s ratifica-
tion. Nearly 80 years later, following a bloody civil war

12

fought over our nation’s original sin of slavery, the
Framers of the Fourteenth Amendment would revisit
the Constitution’s system of representation in the
wake of emancipation and abolition, as the next Sec-
tion discusses.

Il. The Fourteenth Amendment Reaffirmed the
Constitutional Obligation To Count All Per-
sons, Citizen and Non-Citizen Alike.

With the adoption of Section 2 of the Fourteenth
Amendment, which provides that “Representatives
shall be apportioned among the several States accord-
ing to their respective numbers, counting the whole
number of persons in each State, excluding Indians not
taxed,” U.S. Const. amend XIV, § 2, the Founding gen-
eration’s commitment to equal representation for all
as determined by a national count of all persons was
finally realized. Yet it took seven months of heated
debate for this guarantee of equal representation for
all persons to emerge. During the debates over the
Fourteenth Amendment, many in Congress sought a
drastic change in our constitutional principle of equal
representation, arguing that only citizens or voters
should be counted in determining representation. The
Framers of the Fourteenth Amendment decisively re-
jected those arguments and reaffirmed total popula-
tion as the Constitution’s basis for representation. Ev-
enwel, 136 S. Ct. at 1128. As Jacob Howard explained
in introducing the Fourteenth Amendment, “num-
bers,” that is, total population, is “the most just and
satisfactory basis, and this is the principle upon which
the Constitution itself was originally framed, that the
basis of representation should depend upon numbers;
and such .. . is the safest and most secure principle
upon which the Government can rest. Numbers, not
voters; numbers, not property; this is the theory of the

13

Constitution.” Cong. Globe, 39th Cong., Ist Sess.
2767.

When the Thirty-Ninth Congress met in December
1865, questions of representation were front and cen-
ter. With the Three-Fifths Clause a nullity and the
full personhood of formerly enslaved African Ameri-
cans recognized for the purpose of representation, the
Framers of the Fourteenth Amendment were con-
cerned that the Southern states would gain an ill-got-
ten windfall: far more representation in Congress and
in the Electoral College than they had before they se-
ceded from the Union. See, e.g., id. at 357 (“Shall the
death of slavery add two fifths to the entire power
which slavery had when slavery was living?’). As the
Joint Committee on Reconstruction, which was tasked
with drafting the Fourteenth Amendment, explained,
“(t]he increase of representation necessarily resulting
from the abolition of slavery was considered the most
important element in the questions arising out of the
changed condition of affairs, and the necessity for
some fundamental action in this regard seemed imper-
ative.” Report of the Joint Committee on Reconstruc-
tion, at the First Session Thirty-Ninth Congress xiii
(1866).

During debates over the Fourteenth Amendment,
many urged a fundamental change in constitutional
principles of equal representation, insisting that “rep-
resentation shall be based on citizens of the United
States who may be male adult voters” so that “every
voter should be equal in political power all over the
Union.” Cong. Globe, 39th Cong., 1st Sess. 404. Some
even called for overhauling the Census Clause and
putting in its place a “true census of the legal voters.”
Id. at 10 (1865). But as this Court has recognized,
“[vjoter-based apportionment proponents encountered
fierce resistance . . . . Much of the opposition was

14

grounded in the principle of representational equal-
ity.” Evenwel, 136 S. Ct. at 1128. Supporters of the
Fourteenth Amendment argued that such a change in
our Constitution’s system of representation would be
“an abandonment of one of the oldest and safest land-
marks of the Constitution” and would “introduce[] a
new principle in our Government, whose evil tendancy
and results no man can measure to-day.” Cong. Globe,
39th Cong., Ist Sess. 377. Instead, the Reconstruction
Framers insisted on “leavjing] the primary basis of
representation where it was placed by our fathers, the
whole body of the people.” Jd. at 385.

Particularly relevant here, Representative John
Bingham argued that it would be unwise to “strike
from the basis of representation the entire immigrant
population not naturalized,” observing that “[u]nder
the Constitution as it now is and as it always has been,
the entire immigrant population of this country is in-
cluded in the basis of representation.” Jd. at 432. In
his view, the “whole immigrant population should be
numbered with the people and counted as part of
them.” Id.; id. at 411 (arguing that representation
based on number of voters “takes from the basis of rep-
resentation all unnaturalized foreigners”). Others
made similar arguments, insisting that representation
should be based “on the largest basis of population,
counting every man, woman, and child,” id. at 1280,
and that “the whole population is represented; that
although all do not vote, yet all are heard. That is the
idea of the Constitution,” id. at 705. The Fourteenth
Amendment’s proponents refused to “throw[] out of the
basis at least two and a half millions of unnaturalized
foreign-born men and women,” insisting that “[a] com-
munity may be represented, every man in the commu-
nity may be represented, and every woman and child
in the community may be represented, and yet not

15

every man twenty-one years of age be a voter.” /d. at
1256, 1279-80. “All the people, or all the members of a
State or community, are equally entitled to protection;
they are all subject to its laws; they must all share its
burdens, and they are all interested in its legislation
and government.” Id. at 2962.

These proponents of equal representation ulti-
mately carried the day, and Congress adopted the
Fourteenth Amendment, insisting that total popula-
tion, not citizen or voter population, was the basis for
our Constitution’s system of representation. The
Fourteenth Amendment, which was approved by the
people and became a part of the Constitution in 1868,
reaffirmed that our Constitution’s system of equal rep-
resentation for all depends on a count of the nation’s
entire population, including noncitizens. As this his-
tory shows, the purpose of the Census has never been
to count just citizens, but rather to count “the whole
body of the people.” Jd. at 385.

III. The Census Act Prohibits the Addition of
New Census Questions Where the Relevant
Information May Be Gathered Using Exist-
ing Records.

As this history shows, the Constitution mandates a
count of all persons, citizen and noncitizen alike, for
the purpose of apportioning the House of Representa-
tives in a manner that ensures equal representation
for all. Reflecting the importance of the constitution-
ally mandated count of all persons, Congress has used
its express power to regulate the “Manner” of the Cen-
sus to limit the authority of the Secretary of Commerce
to add new questions to the Census. U.S. Const., art.
I, § 2, cl. 3.

Congress has done this, in part, through Section 6
of the Census Act, which contains three separate

16

provisions. First, Section 6(a) addresses the authority
of the Secretary of Commerce to obtain records held by
other parts of the federal government, providing that
“(t]he Secretary, whenever he considers it advisable,
may call upon any other department, agency, or estab-
lishment of the Federal Government, or of the govern-
ment of the District of Columbia, for information per-
tinent to the work provided for in this title.” 13 U.S.C.
§ 6(a). Second, Section 6(b) addresses the Secretary's
authority to obtain records held by state or local gov-
ernments, authorizing “[t]he Secretary” to “acquire,
by purchase or otherwise, from States, counties, cities,
or other units of government, or their instrumentali-
ties, or from private persons and agencies, such copies
of records, reports, and other material as may be re-
quired for the efficient and economical conduct of the
censuses and surveys provided for in this title.” /d.
§ (6)(b). Third, and finally, Section 6(c) provides that
“{tlo the maximum extent possible and consistent with
the kind, timeliness, quality and scope of the statistics
required, the Secretary shall acquire and use infor-
mation available from any source referred to in sub-
section (a) or (b) of this section instead of conducting
direct inquiries.” Jd. § 6(c).

As the plain language of Section 6(c) reflects, the
Secretary “shall acquire and use” administrative rec-
ords to satisfy its information-gathering needs “[t]o the
maximum extent possible” rather than “conducting di-
rect inquiries.” Jd. This language is phrased in man-
datory terms, imposing a “nondiscretionary duty” on
the Secretary of Commerce to use administrative rec-
ords where feasible. Murphy v. Smith, 138 S. Ct. 784,
787 (2018). Congress imposed this limitation to “re-
duc[e] respondent burden,” H.R. Conf. Rep. 94-1719, at
10 (1976), and to ensure that the Secretary of Com-
merce “conduct[s] a census that is accurate and that

17

fairly accounts for the crucial representational rights
that depend on the census and the apportionment,”
Franklin v. Massachusetts, 505 U.S. 788, 820 (1992)
(Stevens, J., concurring in part and concurring in the
judgment). It therefore prevents the Secretary of Com-
merce from adding questions to the Census that might
deter participation when the information could be ob-
tained through existing records. And it prevents the
Secretary from adding questions to the Census that
might bias the count and thereby manipulate the con-
stitutionally required count of all persons. As the text
of the law reflects, Congress was concerned that add-
ing new questions might impose too great a burden on
respondents or limit their willingness to participate in
the Census. The solution, Congress concluded, was to
insist that the Secretary of Commerce use administra-
tive records, to the maximum extent possible, to gather
any additional information he or she might want.

This statutory command puts the thumb firmly on
the scale against adding new questions to the Census
when, considering the character of the “statistics re-
quired,” existing records can be used to supply the in-
formation in question. 13 U.S.C. § 6(c). Indeed, even
if the federal government does not itself possess the
relevant information, the Census Act directs the Sec-
retary to “acquire” those records rather than add new
“direct inquiries” to the Census. Jd. In sum, “[t]o the
maximum extent possible,” the Secretary must “ac-
quire and use” pre-existing records rather than “con-
ducting direct inquiries” which could deter participa-
tion and detract from the count of all persons—the sole
question the Constitution expressly mandates. /d.

As the record reflects, in adding a citizenship ques-
tion, Secretary Ross ignored Section 6(c) entirely. Sec-
retary Ross never gave any explanation—much less a
reasoned one—regarding how the addition of the

18

citizenship question could be squared with Congress's
command to “acquire and use” administrative records
“[tlo the maximum extent possible.” Jd. Indeed, Sec-
retary Ross analyzed the question whether to add a di-
rect inquiry asking all persons to divulge their citizen-
ship status as if Section 6(c) simply did not exist. In
effect, by this critical omission, Secretary Ross read a
critical provision out of the Census Act—the very Act
he was charged with enforcing. This, of course, trans-
gressed long settled principles that demand that agen-
cies act in accord with the rule of law. See Utility Air
Reg. Grp. v. EPA, 573 U.S. 302, 328 (2014) (“[A]n
agency may not rewrite clear statutory terms to suit
its own sense of how the statute should operate.”);
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 462 (2002)
(“We will not alter the text in order to satisfy the policy
preferences of the Commissioner.”); Peters v. Hobby,
349 U.S. 331, 345 (1955) (“Agencies . . . must of course
be free to give reasonable scope to the terms conferring
their authority. But they are not free to ignore plain
limitations on that authority.”); Caring Hearts Pers.
Home Servs., Inc. v. Burwell, 824 F.3d 968, 970 (10th
Cir. 2016) (Gorsuch, J.) (“For surely one thing no
agency can do is apply the wrong law to citizens who
come before it, especially when the right law would ap-
pear to support the citizen and not the agency.”).

The Department of Justice offers two arguments
to justify Secretary Ross’s flouting of Section 6(c).
Both are meritless.

First, the Department insists that Section 6(c)’s re-
quirement that the Secretary “shall acquire and use”
administrative records “[t]o the maximum extent pos-
sible” rather than “conducting direct inquiries,” 13
U.S.C. § 6(c), contains “no judicially manageable
standards to evaluate compliance with its terms.”
Pet’'rs Br. 45-46. This ignores the text enacted by

19

Congress, which imposes a legal duty on the Secretary
of Commerce to use administrative records “|t]o the
maximum extent” possible, 13 U.S.C. § 6(c), a phrase
Congress often uses to constrain governmental action,
see 16 U.S.C. § 1456(c)(1)(A) (Coastal Zone Manage-
ment Act); 20 U.S.C. § 1412(5)(A) (individuals with
Disabilities Education Act); 42 U.S.C. § 2000cc-3(g)
(Religious Land Use and Institutionalized Persons Act
of 2000). Instead of giving effect to Section 6(c), the
Department would simply have this Court read it out
of the Census Act, in contravention of this Court’s duty
to “respect the role of the Legislature and take care not
to undo what it has done,” King v. Burwell, 135 S. Ct.
2480, 2496 (2015).

Second, the Department argues that Secretary
Ross’s failure to explicitly consider the limitations con-
tained in Section 6(c) is irrelevant because the provi-
sion’s requirements have nonetheless been satisfied.
See Pet’rs Br. 48. But “[t]his line of reasoning contra-
dicts the foundational principle of administrative law
that a court may uphold agency action only on the
grounds that the agency invoked when it took the ac-
tion.” Michigan v. EPA, 135 S. Ct. 2699, 2710 (2015)
(citing SEC v. Chenery Corp., 318 U.S. 80, 87 (1943)).
The Secretary's decision in this case “must be meas-
ured by what [he] did, not by what [he] might have
done.” Jd. at 2711 (quoting Chenery, 318 U.S. at 93-
94). The Department of Justice can take no solace in
the fact that Secretary Ross considered whether to rely
on administrative records, because it is undisputed
that the Secretary did not consider at all his legal duty
to use those records “[t]o the maximum extent possi-
ble,” 13 U.S.C. § 6(c). “Whatever potential reasons the
Department might have given,” the Secretary of Com-
merce gave “no reasons at all” to justify his conduct
under the Census Act. Encino Motorcars, LLC v.

20

Navarro, 136 S. Ct. 2117, 2127 (2016). If federal agen-
cies were permitted to engage in the kind of creative
reconstruction of agency action that the Department
offers here, it would render Chenery a nullity.

In sum, because Secretary Ross ran roughshod
over Congress’s clear directive to “acquire and use” ad-
ministrative records “[tlo the maximum extent possi-
ble,” 13 U.S.C. § 6(c), his order must be set aside.

IV. The Goal of Enforcing the Voting Rights Act
Does Not Justify Ignoring the Requirements
of the Constitution and the Census Act.

Rather than follow his constitutional obligation to
ensure an “actual Enumeration” of the people, U.S.
Const. art. I, § 2, cl. 3, and his duty under the Census
Act to avoid “direct inquiries” to the “maximum extent
possible,” 13 U.S.C. § 6(c), the Secretary insisted that
a citizenship question was necessary to better enforce
the Voting Rights Act. This flimsy rationale—which
was never mentioned at all until Secretary Ross engi-
neered DOJ’s request for a citizenship question—can-
not survive even the most cursory review.

First, the Secretary has no expertise with respect
to the Voting Rights Act and no authority to enforce it.
See Epic Sys. Corp., 138 S. Ct. at 1629. Thus, this
Court must exercise its own judgment in determining
whether the addition of this question is necessary. See
id.; see also id. (the Secretary should not have “boot-
strap[ped] [him]self into an area in which [he] has no
jurisdiction” (quoting Adams Fruit Co. v. Barrett, 494
U.S. 638, 650 (1990))).

Second, since the passage of the Voting Rights Act
in 1965, the Census has never asked all persons to re-
port their citizenship status. Such data is not neces-
sary to enforce the Voting Rights Act. John Gore, the
primary author of the Department of Justice request

21
for the citizenship question, has admitted as much.
App. Cert. 94a-95a (concession that ““CVAP data col-
lected through the census questionnaire is not neces-
sary for DOJ’s VRA enforcement efforts” (citation
omitted)).

Indeed, for the last 53 years—until this Admin-
istration’s eleventh-hour proposal to add a citizenship
question to the 2020 Census—no one has ever sug-
gested that enforcement of the Voting Rights Act was
hampered by the failure of the Census Bureau to ask
all persons residing in the United States to divulge
their citizenship status. The members of Congress
who wrote the Voting Rights Act and its amendments
have never so much as suggested that the Census
should ask all persons in the country to provide their
citizenship status in order to ensure proper enforce-
ment of the Act. Nor have the civil rights lawyers or
Department of Justice lawyers who bring lawsuits to
enforce the Voting Rights Act, or the state and local
governmental entities that defend their electoral prac-
tices against Voting Rights Act challenges. See, e.g.,
Progress Rep. on the 2020 Census: Hearing Before the
H. Comm. on Oversight & Gov't Reform, 115th Cong.
14 (May 8, 2018) (testimony of Professor Justin Levitt)
(“Despite a deep commitment to enforcing the Voting
Rights Act .. . we never requested that the decennial
enumeration include a question relating to citizenship.
Nor had the Civil Rights Division of any Justice De-
partment, under any Administration, for the previous
53 years.”). The citizenship question is a solution in
search of a problem. For good reason, the district court
concluded that there was “no evidence in the Adminis-
trative Record” that better citizenship data was
needed to enforce the Voting Rights Act and, in fact,
there was “plenty of evidence to the contrary.” App.
Cert. 295a.

22

Third, citizenship data—which is just one of many
pieces of evidence currently used to prove a violation
of the Voting Rights Act—is already available through
the American Community Survey, and litigants and
courts have been using this data to evaluate Voting
Rights Act claims for decades. “Although [this] data
may not be perfectly accurate, it is routinely relied
upon in § 2 cases.” Montes v. City of Yakima, 40 F.
Supp. 3d 1377, 1393 (E.D. Wash. 2014). Further, if the
goal was to obtain additional data for courts and liti-
gants to use to resolve voting rights controversies, Sec-
retary Ross could have used administrative records to
do so. Voting rights enforcement did not require jetti-
soning the Census Act’s command that administrative
records be used to the “maximum extent possible.”
13 U.S.C. § 6(c).

Fourth, although the American Community Survey
data is not perfect, the data that will result from the
addition of this citizenship question will, as the district
court found, almost certainly be even worse. Because
“hundreds of thousands—if not millions—of people
will go uncounted in the census if the citizenship ques-
tion is included,” App. Cert. 9a, it will produce inaccu-
rate data, which will skew how courts evaluate voting
rights claims. The result will be to hurt the very com-
munities the Voting Rights Act was enacted to protect.

In sum, the citizenship question will produce a dis-
proportionate undercount of minority communities,
which will make it harder for them to claim the Voting
Rights Act protections. Thus, rather than aiding en-
forcement of the Voting Rights Act, addition of the cit-
izenship question will actually undermine the goal of
enhanced voting rights enforcement. The Secretary's
proffered justification thus provides no support for the
addition of the citizenship question.

23
CONCLUSION

For the foregoing reasons, the judgment of the dis-
trict court should be affirmed.

Respectfully submitted,

ELIZABETH B. WYDRA
BRIANNE J. GOROD*
DAVID H. GANS
CONSTITUTIONAL
ACCOUNTABILITY CENTER
1200 18th Street NW
Suite 501
Washington, D.C. 20036
(202) 296-6889
brianne@theusconstitution.org

Counsel for Amici Curiae
April 1, 2019 * Counsel of Record

1A

APPENDIX:
LIST OF AMICI

U.S. Senate

Schatz, Brian
Senator of Hawai'i

Bennet, Michael F.
Senator of Colorado

Blumenthal, Richard
Senator of Connecticut

Booker, Cory A.
Senator of New Jersey

Brown, Sherrod
Senator of Ohio

Cardin, Benjamin L.
Senator of Maryland

Coons, Christopher A.
Senator of Delaware

Dorgan, Byron

Former Senator of North Dakota

Duckworth, Tammy
Senator of Illinois

Durbin, Richard J.
Senator of Illinois

Feinstein, Dianne
Senator of California

2A
LIST OF AMICI — cont'd

Gillibrand, Kirsten
Senator of New York

Harris, Kamala D.
Senator of California

Hart, Gary

Former Senator of Colorado
Hirono, Mazie K.

Senator of Hawai'i
Kaine, Tim

Senator of Virginia

Kerry, John
Former Senator of Massachusetts

Klobuchar, Amy
Senator of Minnesota

Levin, Carl
Former Senator of Michigan

Merkley, Jeffrey A.
Senator of Oregon

Reed, Jack
Senator of Rhode Island

Udall, Mark
Former Senator of Colorado

Udall, Tom
Senator of New Mexico

3A
LIST OF AMICI — cont'd

Whitehouse, Sheldon
Senator of Rhode Island

Wirth, Timothy E.
Former Senator of Colorado

Wyden, Ron
Senator of Oregon

U.S. House of Representatives

Berman, Howard
Former Representative of California

Edwards, Mickey
Former Representative of Oklahoma

Morella, Constance
Former Representative of Maryland

Schneider, Claudine
Former Representative of Rhode Island

Smith, Peter
Former Representative of Vermont

Waxman, Henry A.
Former Representative of California

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0867%3A33. Public record. Not legal advice.