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

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No. 18-966

IN THE

Supreme Court of the United States

DEPARTMENT OF COMMERCE, ET AL.,

Petitioners,

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 DAVID J. ZIMMER

JANAI S. NELSON Counsel of Record

SAMUEL SPITAL JOSHUA J. BONE

LEAH C. ADEN GOODWIN PROCTER LLP

AARON SUSSMAN 100 Northern Ave.

J. ZACHERY MORRIS Boston, MA 02210

NAACP LEGAL DEFENSE & (617) 570-1000

EDUCATIONAL FUND, INC. dzimmer@goodwinlaw.com

40 Rector Street, 5th Floor Ti~rany MAHMOOD

New York, NY 10006 WILLIAM UHR

(212) 965-2200 MADELINE DiLASCIA

GOODWIN PROCTER LLP

Counsel for Amicus Curiae

April I, 2019

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE...............:c::cceccee00s l

INTRODUCTION AND SUMMARY OF

FIED pecsatesesorssceriencsomacisrmiortesesssrssenessvsessases 2

FPF EINED scvetnviscccssensssinscicceineiatsdiinioinsarstessossioscossions 4

1. Adding the Citizenship Status Question

would undermine racial equity by

exacerbating the Black population

I thnadaiamrcnaiininihadiind dnthablesctinssoversevsvtece 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. Acomplete and accurate count is

necessary for racial equity. ....................... 24

Il. LDF and other civil rights organizations’

vast experience litigating under the Voting

Rights Act confirms that the Citizenship

Status Question is unnecessary to enforce

I ads 30

RAD intctscestnsorsessesonssnssivvessscensesaniettivecisnanie 37

TABLE OF AUTHORITIES

Page(s)

Cases

Ala. Legis. Black Caucus v. Alabama,

I Ci, SE CI cana cis eisincaianedanadsnnienleals l

Baldridge v. Shapiro,

a hacen is hr emanicemiaa 24

Barnett v. City of Chicago,

141 F.3d 699 (7th Cir. 1998) .............ccccccceceeeeeerees 34

Beer v. United States,

ie i aces sentiianeans 1

Benavidez v. City of Irving, Tex.,

638 F. Supp. 2d 709 (N.D. Tex. 2009).................. 36

Bush v. Vera,

Be ts SE EE iscsi cisscnsccnsdeedotdenndedadiaadomnsndaddas l

Centro Presente v. Trump,

332 F. Supp. 3d 393 (D. Mass. 2018)................... 21

Chisom v. Roemer,

|” ___ ESESEENE ERs pme sree rE moray l

Corbett v. Sullivan,

202 F. Supp. 2d 972 (B.D. Mo. 2002) ........c0c000000. 34

Easley v. Cromartie,

Be ne TE TIT neciseciccniosvennusetnecindésetpededdeinienees 1

iil

Evenwel v, Abbott,

Se he Cele Ee IED cevesevincessocsvecscsssvosevenevii 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,

IE, EE ITD aici cnnccssininesianeaniennentunindanedel 1

Gomillion v. Lightfoot,

eT ITED sintadissarstmsiintinaeivaiondicevesedinisoveiiv’ 2

Houston Lawyers’ Ass'n v. Attorney Gen.

of Texas,

ee i: MD ciccssddisnniiedidisiiceitdadanintonabsnesindeoiias l

Kirksey v. Bd. of Supervisors,

564 F.2d 130 (Gth Cir. 1977) ........:00ccccsccscessrerreeseres 2

League of United Latin Am. Citizens v.

Clements,

900 F.2d 631 (Gth Cir. 1008) ......:cccccccssessorsssessoserees I

League of United Latin Am. Citizens v.

Perry,

Se Es SE IED sidlinedsidonesediocoddoncvcicdsenete 1, 32, 34

NAACP v. Bureau of Census,

No. PWB-18-891, 2019 WL 355743

Sh, Ey GE tis INI ccdscscoscdadonnsesiveddodoiessodsooes 6, 17

NAACP v, U.S. Dep't of Homeland Sec.,

No. DKC 18-0239, 2019 WL 1126386

Py ay Ms Se LIED cevsocccvecdscsescsvrvediectesseseocosess 21

Negron v. City of Miami Beach,

113 F.3d 1663 (11th Cir. 1997) ..................000000 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) ..00.0000000....... 34

Nw. Austin Mun, Util. Dist. No. One v.

Holder,

I a ae ]

Ramos v. Nielsen,

336 F. Supp. 3d 1075 (N.D. Cal.

Saget v. Trump,

No. 1:18-cv-01599, 345 F. Supp. 3d

287 (E.D.N.Y. Dec. 14, 2018),.......::ccccccccecccceerereenes 21

Schnell v. Davis,

EERE SREP DATE ve P Ea ee DOR on BE TODO 2

Shaw v. Hunt,

ERE RST ERE ere eee me aoe ]

Shelby Cnty. v. Holder,

IIE lanai sdanpinassnninnadeidtorinededinibeds ]

Smith v. Allwright,

I a i aa 2

State of California v. Ross,

Nos. 18-cv-01865-RS, 18-cv-02279-

RS, 2019 WL 1052434 (N.D. Cal.

SEEING, Gt TI hinccaditatendoduadeagineaiasssaeonpivesionsoand passim

Terrebonne Parish Branch NAACP v.

Jindal,

274 F. Supp. 3d 395 (M.D. La. 2017)................... 88

Terry v. Adams,

I I a ae cies reas 2

Thornburg v. Gingles,

I I isa raced cisrneridauaseneoiies 1, 31, 32

United States v. Hays,

NIE IEE I istics ais srcuinssasindsivenmedsibiedsiees ]

Utah v. Evans,

I a i all 6

Wesberry v. Sanders,

I I dial a ncansinhabantbesbinnpbidéed 6

White v. Regester,

EES EER ee eT appro POE Re 2

Wisconsin v. City of New York,

Sa Us ih IEE sidecsincdnedecetovsssotodesabvesovosavesed passim

Zimmer v. McKeithen,

485 F.2d 1207 (6th Cir. 1973) ..........cccccccceeeeeeeeeeeees 2

Statutes

I I sas oss aaa eesaespinssnsodinincnbnesesdioed 25

U.S. Constitution

Fe ns Sie Be We le Cle © sonectocsoccecccocotovetovsosossveses 5, 6

Other Authorities

2020 Census Fact Sheet, Census Accu-

racy and the Undercount: Why It

Matters; How It’s Measured, Funders

Comm. for Civic Participation (2017).......

Agency History - U.S. Census Bureau,

ROD nicccssnsdsecsdcasdieedadandteateamiisiddcnionte

American Community Survey Design

and Methodology, Chapter 11,

Weighting and Estimation, U.S. Cen-

sus Bureau (Rev. Dec. 2010).....................

Monica Anderson, A Rising Share of the

U.S. Black Population Is Foreign

Born, Pew Research Ctr. (Apr. 9,

Monica Anderson & Gustavo |4pez, Key

facts about black immigrants in the

U.S., Pew Research Ctr. Wan. 24,

Randy Capps, Kristen McCabe, & Mi-

chael Fix, Diverse Streams: African

Migration to the United States, Mi-

gration Policy Institute (Apr. 2012)..........

vii

Chand et al., Multi-Year Averages From

a Rolling Sample Survey, U.S. Cen-

sus Bureau (2000)................0....00ccc00e

Maryann M. Chapin, U.S. Census Bu-

reau, 2020 Census: Counting Every-

one Once, Only Once, and in the

Citizen Voting Age Population by Race

and Ethnicity, Census.gov (Feb. 1,

EG ERED Se ie PE ee

Lynette Clemetson, Homeland Security

Given Data on Arab-Americans, N.Y.

Times (July 30, 2004) ..............0000.0..0..

Josh Dawsey, Trump derides protections

for immigrants from ‘shithole’

countries, Wash. Post (Jan. 12, 2018)

Dep't of Justice, Smart on Crime: Re-

forming the Criminal Justice System

for the 21** Century (Aug. 2013)........

Melissa Etehad, The 2020 census could

undercount I million kids — which

means less money for California

schools, L.A. Times (July 9, 2018). ....

David A. Graham, The Unpredictable

Political Effects of 2020 Census

Tinkering, The Atlantic (June 25,

ay =

peanpaceeinenencen 35

cnbsntnpensesadess 27

Vill

John Iceland & Kyle Anne Nelson, The

Residential Segregation of Mixed-

Nativity Married Couples, Demogra-

phy Vol. 47, No. 4, 869-93 (Nov. 2010)

Samuel issacharoff & Allan J. Lichtman,

The Census Undercount and Minority

Representation: The Constitutional

Obligation of the States to Guarantee

Equal Representation, 13 Rev. Litig.

D GREED cenccscvenesssessnaporeeuicesnavenecsvesauseuse

Jolie Lee, Still apart: Map shows states

with most-segregated schools, USA

Today (May 15, 2014).....................::00

Letter from Asian Americans Advancing

Justice to Jennifer Jessup (Aug. 7,

Letter from Mexican American Legal

Defense & Educ. Fund to Jennifer

Jessup (Aug. 7, 2018) ....................000000

Letter from Native American Voting

Rights Coalition to Jennifer Jessup

I Fi See eceenteniseccantinsitinnccteneninvicneses

McGeeney et al., 2020 Census Barriers,

Attitudes, and Motivators Study

Survey Report (2019)...........................

Memorandum from the U.S. Census Bu-

reau, Ctr. For Survey Measurement

to Assoc. Directorate for Research &

Methodology (Sept. 20, 2017)...............

svinencweniunts 22

Mikelyn Meyers, Respondent

Confidentiality Concerns and

Possible Effects on Response Rates

and Data Quality for the 2020

Census, U.S. Census Bureau (Nov. 2,

Migration Policy Institute, A Demo-

graphic Profile of Black Caribbean

Immigrants in the United States

SEs SEITE ccncnachiniipentincipaittusibehaifapiaiunatacesinnases

Muslims in America: Immigrants and

those born in U.S. see life differently

in many ways, Pew Research Ctr.

GD. Boj TD cscncenennnntepasinnennesrecemsencswsvess

National Fair Housing Alliance, Zip

Code Inequality: Discrimination by

Banks in the Maintenance of Homes

in Neighborhoods of Color (Aug. 27,

Ashley Nellis, The Sentencing Project,

The Color of Justice: Racial and Eth-

nic Disparity in State Prisons 3 (Jun.

NYU Law Immigrant Rights Clinic, The

State of Black Immigrants Part 1:

Statistical Portrait of Black Immi-

grants in the United States ....................

NYU Law Immigrant Rights Clinic, The

State of Black Immigrants Part 2:

Black Immigrants in the Mass Crim-

inalization System.......................ccs00000000+

Race and Ethnicity in the 2020 Census:

Improving Data to Capture a Multi-

ethnic America, The Leadership Con-

ference & Educ. Fund (Nov. 2014)...........

Michael D. Shear & Julie Hirschfeld

David, Stoking Fears, Trump Defied

Bureaucracy to Advance Immigration

Agenda, N.Y. Times (Dec. 23, 2017) ........

Peter Skerry, Counting on the Census?:

Race, Group Identity and the Eva-

sion of Politics (2000) ..........................0000.

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,

Christopher M. Taylor, Vote Dilution

and the Census Undercount: A State-

by-State Remedy, 94 Mich. L. Rev.

ED GID erienesnnsnasonaisnespeemenensenmennenceoes

Testimony of Lawyers’ Committee for

Civil Rights Under Law Submitted

by Kristen Clark to the U.S. House of

Representatives Judiciary Commit-

tee Subcommittee on the Constitu-

tion and Civil Justice Hearing on

“Questions Regarding the U.S. Cen-

gh EE en a

The Leadership Conference Educ. Fund,

Factsheet: Will Your Kids Count?

Young children and their families in

the 2020 census (last updated Apr.

Why We Ask About... - Place of Birth,

Citizenship, Year of Entry —American

Community Survey, U.S. Census

Bureau, Census. Gov .................cccccceceeeeeeeee

David R. Williams & James S. Jackson,

Race/Ethnicity and the 2000 Census:

Recommendations for African Ameri-

can and Other Black Populations in

the United States, Am. J. Public

Health, Vol. 90, No. 11, 1728-30

INTEREST OF AMICUS CURIAE!

Amicus, the NAACP Legal Defense and Education-

al 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 constitu-

tional and statutory rights. Founded in 1940 under

the leadership of Thurgood Marshall, LDF focuses on

eliminating racial discrimination in education, eco-

nomic justice, criminal justice, and political partici-

pation, using various tools including census data.

LDF has been involved in numerous precedent-

setting cases relating to minority political represen-

tation 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 mone-

tary contribution to the preparation or submission of this brief.

The parties filed blanket consents to the filing of amici briefs.

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 Su-

pervisors, 554 F.2d 139 (5th Cir. 1977); Zimmer v.

MckKeithen, 485 F.2d 1297 (5th Cir. 1973). Specifical-

ly, LDF has successfully raised claims under the Vot-

ing 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 de-

cennial 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 Enumera-

tion.” The disproportionate undercounting of Black

people, which has persisted through the most recent

censuses, has enormous practical implications. Ac-

curate census data is essential to the equitable allo-

cation of political representation and government re-

sources. Any revision to the methods for conducting

the census should seek to remedy the racial disparity

in enumeration, and certainly not exacerbate it.

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 partici-

pation of vulnerable immigrant communities—which

Black people are both a part of and live in proximity

to—particularly given the hostile rhetoric that char-

acterizes contemporary immigration policy and esca-

lated efforts to identify and deport potentially re-

movable immigrants. Indeed, given that the makeup

of the immigrant population includes a sizeable pop-

ulation of Black immigrants and noncitizens, de-

creased 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 dis-

trict court found, other available data is more accu-

rate for these purposes than the new census data

sought through the inclusion of the Citizenship Sta-

tus Question. Fellow civil rights groups and the Jus-

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 un-

substantiated justification for the addition of the Cit-

izenship 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 exacer-

bating 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.? Black people

* Between 1970 and 2000, the U.S. Census Bureau used two

questionnaires. Most households received a short-form ques-

tionnaire. while selected households received a long-form ques-

tionnaire with additional questions. The 2010 Census had just

one questionnaire consisting of ten questions. See Question-

naires - 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 regard-

ing year of entry first appeared in the long-form 1890 Census.

These questions were moved to the American Community Sur-

vey 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,

will be both directly and indirectly harmed as noncit-

izens, a8 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 di-

rectly deprives Black people of equal political repre-

sentation 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 Conven-

tion of 1787, when the Framers established that

seats in the House of Representatives should be ap-

portioned to States on the basis of total population.

See U.S. Const., art. I, § 2, cl. 3; see also Evenwel v.

Abbott, 136 8. Ct. 1120, 1127 (2016) (outlining this

history). The Framers understood that this appor-

tionment created incentives for manipulating popu-

lation figures, and “that the calculation of popula-

tions could be and often were skewed for political or

Census.Gov, _ https://www_.census.gov/acs/www/about/why-we-

ask-each-question/citizenship/.

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 accura-

cy 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 be-

came concerned that undercounting might have

marred the results. See Christopher M. Taylor, Vote

Dilution and the Census Undercount: A State-by-

State Remedy, 94 Mich. L. Rev. 1098, 1101 (1996).

But these concerns did not extend to the undercount-

ing 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 Per-

sons” 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

people were “egregiously undercounted... but

lacked the political clout to secure a recount.” Sam-

uel Issacharoff & Allan J. Lichtman, The Census

Undercount and Minority Representation: The Con-

stitutional Obligation of the States to Guarantee

Equal Representation, 13 Rev. Litig. 1, 6 (1993). In-

stability 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.” /d. at 89-90.

Although policymakers were thus aware of system-

ic racial undercounting as early as the 1870 census,*

* Policymakers during this period exacerbated the harms of ra-

cial undercounting by ignoring census results that demonstrat-

ed 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 8. 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.” Jd. Thus, “many States ran elections into

the early 19608 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 con-

centrating 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 8. Ct. at 1124

(noting that the one-person, one-vote cases “instructed that ju-

the Census Bureau only began documenting the cen-

sus 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). The Census Bureau ultimately deter-

mined that the undercount for the entire population

in the 1940 census was 5.4 percent, but that the un-

dercount was only 5.0 percent for the white popula-

tion, as compared to 8.4 percent for the Black popu-

lation. Wisconsin v. City of New York, 517 U.S. 1, 7

(1996).

This 3.4 percent disparity between the census un-

dercount rates for the Black and white populations

widened over time. For example, by 1980, while the

overall population undercount had shrunk to an es-

timated 1.2 percent, the undercount for the Black

population was 3.7 percent higher than the under-

count for the non-Black population. See 1980 Over-

view — History — U.S. Census Bureau, Census.Gov.°

In the 1990 census, the disparity between the under-

count rates for the Black and white populations in-

creased yet again to 4.4 percent. See Peter Skerry,

risdictions must... regularly reapportion districts [based on

up-to-date data] to prevent malapportionment' ).

‘ Available at https://www.theatlantic.com/politics/archive/20 1 8/

06/the-unpredictable-political-effects-of-trumps-census-

moves/563645/.

° Available at https://www.census.gov/history/www/through_

the_decades/overview/1980. html

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 non-

Hispanic white people by 0.8 percent. See Census

Bureau Releases Estimates of Undercount and Over-

count in the 2010 Census — 2010 Census — Newsroom

~ U.S. Census Bureau, Census.Gov (May 22, 2012).’

As explained at pp. 25-26, infra, the persistent un-

dercount 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 be-

tween the Black population undercount and the

white population overcount, which results in an in-

equitable distribution of political and economic re-

sources, harming undercounted communities while

simultaneously over-resourcing overcounted commu-

nities. See 2020 Census Fact Sheet, Census Accura-

cy 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).®

° Specific events that happen shortly before a decennial census,

such as the 2008 economic crisis, disproportionately harm peo-

ple of color and can exacerbate the undercount.

’ Available at httpse://www.census.gov/newsroom/releases/

archives/2010_census/cb 12-95. html.

* Available at https://funderscommittee.org/wp-content/uploads/

2017/01/FC12020-F actSheet-Census-Accuracy-Undercount-

Fall2016.pdf.

The attempt to add the Citizenship Status Ques-

tion 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 decen-

nial 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 Ques-

tion in the census would particularly

harm Black people.

Adding the Citizenship Status Question threatens

to deepen the current and historical census under-

count of the Black population generally, and of the

Black immigrant and noncitizen populations specifi-

cally. These groups ar» already recognized as hard-

to-count populations. Given reasonable fears about

the abuse of census data to facilitate racially discrim-

inatory immigration enforcement, adding the Citi-

zenship Status Question would further chill census

participation rates among Black immigrant and

noncitizen persons. And given the prevalence of im-

migrant-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

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 Bu-

reau has struggled to enumerate hard-to-count popu-

lations, including Black people generally, as dis-

cussed below, as well as immigrant people, nonciti-

zen people, and other subgroups of which Black peo-

ple are an appreciable part. Approximately 42 per-

cent of Black immigrant persons do not hold U.S. cit-

izenship. 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) (“Cen-

sus 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 ques-

tion 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 un-

dercount would not work and may in fact exacerbate

the differential undercount of noncitizens. /d. at

585-86.

This significant decline among noncitizen commu-

nities is compounded by the national political envi-

ronment. As the district court recognized, “a higher

level of concern about using citizenship data for en-

forcement purposes ... could also exacerbate the ef-

fects of adding a citizenship question,” (id. at 579 (in-

ternal 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 de-

bate.”). Indeed, even before consideration of the Citi-

zenship Status Question, there had already been

documented distrust of the census among immigrant

communities and people of color, including confiden-

tiality 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 immi-

grant persons in the United States has increased

significantly in recent decades. See NYU Law Immi-

grant Rights Clinic, The State of Black Immigrants

Part 1: Statistical Portrait of Black Immigrants in

the United States 10 [hereinafter The State of Black

Immigrants Part 1]. Approximately one-in-ten

Black people in the United States are immigrants.

See Monica Anderson & Gustavo Lépez, Key facts

about black immigrants in the U.S., Pew Research

Ctr. (Jan. 24, 2018).'° Of this population, approxi-

mately 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 partic-

ular communities clustered around metropolitan ar-

eas. 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)'! [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.

‘© Available at https://)www.pewresearch.org/fact-tank/2018/

01/24/key-facts-about-black-immigrants-in-the-u-s/.

'! Available at https://www.pewsocialtrends.org/2015/04/09/a

rising-share-of-the-u-s-black-population-is-foreign-born/.

of all Black Caribbean immigrants lived in New York

and Florida). !2

The Black immigrant population is particularly

vulnerable to census undercounting. Not only are

racial and ethnic minority populations generally un-

dercounted, but the Black immigrant population is

disproportionately likely to belong to other groups

that the Census Bureau has identified as “hard-to-

count,” including non-English speakers,'* undocu-

mented immigrants, low-income persons, people who

distrust the government, and racial and ethnic mi-

norities.'® See Maryann M. Chapin, U.S. Census Bu-

reau, 2020 Census: Counting Everyone Once, Only

'2 Available at https://www.migrationpolicy.org/research/CBI-

demographic-profile-black-caribbean-immigrants.

'S Roughly a quarter of Black immigrant people ages five and

older are not proficient in English. See Anderson Pew Research

Ctr.

'4 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.

'* 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.

Once, and in the Right Place 42.'6 Thus, even com-

pared to the U.S. Black population as a whole, the

Black immigrant population—including the undocu-

mented Black immigrant population—faces a sub-

stantial risk of being undercounted by the census.

See, e.g., David R. Williams & James S. Jackson,

Race/Ethnicity and the 2000 Census: Recommenda-

tions for African American and Other Black Popula-

tions 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).'’7 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) Com-

munities for a Fair and Accurate 2020 Census. '*

These low census response rates—and the result-

ing 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 communi-

ties. See Randy Capps, Kristen McCabe, & Michael

‘6 Available at https://www2.census.gov/programs-surveys/

decennial/2020/program-management/pmr-materials/10-19-

2018/pmr-hard-to-count-2018-10-19.pdf.

'7 Available at https://ajph.aphapublications. org/doi/pdf/ 10.2105

/AJPH.90.11.1728.

'8 Available at https://www.censushardtocountmaps2020. us/.

Fix, Diverse Streams: African Migration to the Unit-

ed States, Migration Policy Institute 11-12 (Apr.

2012) (finding that Black African immigrants resided

in a heavily concentrated handful of areas, with dis-

tribution largely mirroring that of the overall Black

population in the United States)!®; 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 for-

eign-born and mixed-nativity Black households expe-

rienced high levels of segregation from non-Black ra-

cial and ethnic groups in metropolitan regions)”°; see

also Ross, 2019 WL 1052434, at *9 (noting the find-

ing that “the citizenship question will cause a signifi-

cant decline in self-response rates . . . particularly for

immigrants and immigrant-adjacent communi-

ties...” and defining “immigrant-adjacent commu-

nities’ as communities with mixed-status households,

where one family member is a U.S. citizen and an-

other family member is not, and communities in

which residents would interact with immigrants dai-

ly at work, school, or in other similar environ-

ments.”). It is also common for Black families to

have family members with different citizenship sta-

tuses. For example, a majority of African and Carib-

bean immigrants who obtained lawful permanent

resident status have been recorded as being immedi-

ate relatives of U.S. citizens or otherwise family-

sponsored. See The State of Black Immigrants Part

1, supra, at 14.

'° Available at https://www.migrationpolicy.org/research/CBI-

african-migration-united-states.

2” Available at https://www.ncbi.nlm. nih.gov/pmc/articles/PMC

3000034/pdf/dem-47-0869. pdf.

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-to-

count subpopulations: that they are hard to locate,

hard to contact, hard to persuade, and hard to inter-

view. For some hard-to-count subgroups, more than

one of these obstacles applies. Census Bureau re-

search 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 im-

migrants 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 cen-

sus, various factors threatened to reduce census par-

ticipation rates for immigrant populations and com-

munities of color, including concerns about insuffi-

cient 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

internet access); Mikelyn Meyers, Respondent Con/fi-

dentiality Concerns and Possible Effects on Response

Rates and Data Quality for the 2020 Census, U.S.

Census Bureau (Nov. 2, 2017) (“Findings across lan-

guages, regions of the country, from both pretesting

respondents and field staff point to an unprecedented

ground swell in confidentiality and data sharing con-

cerns, particularly among immigrants or those who

live with immigrants. ... Particularly troubling due

to the disproportionate impact on hard-to-count pop-

ulations.”)*!; 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 fur-

ther governmental discrimination. Data from the

1940 census was notoriously used by the Secret Ser-

vice 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 Contro-

versial, 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

2! Available at https://www?2.census.gov/cac/nac/meetings/2017-

11/Meyers-NAC-Confidentiality-Presentation.pdf.

2 Available at http://time.com/5217151/census-questions-

citizenship-controversy.

Lynette Clemetson, Homeland Security Given Data

on Arab-Americans, N.Y. Times (July 30, 2004).2°

These reasonable concerns about confidentiality al-

ready 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]Jespite Secretary Ross’s claim

to the contrary . . . there is no evidence in the Admin-

istrative Record supporting a conclusion that addi-

tion of the citizenship question will not harm the re-

sponse 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 omit-

ted)); 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 nonciti-

zens 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,

“8 ~Available at https://www.nytimes.com/2004/07/30/us/

homeland-security-given-data-on-arab-americans. html.

particularly the political environment around immi-

gration, has the potential to amplify the negative ef-

fect of the citizenship question on _ self-response

rates.”). Despite the radical shift in position of the

newest Secretary of Commerce, the staff of the Cen-

sus Bureau has continued to recognize that the in-

clusion 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 pro-

posal to add the Citizenship Status Question—

groups that include Afro-Latinx immigrants, who

comprise 11 percent of the Black immigrant popula-

tion. 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 immi-

grant people have been among the explicit targets of

these attacks. For example, the Temporary Protect-

ed Status (“TPS”) designation for Haitian immi-

grants—initiated by the U.S. government in re-

sponse to the 2010 earthquake, and maintained in

the wake of a subsequent cholera outbreak, and the

hurricanes that have devastated the Haitian popula-

tion—was terminated in November 2017. Four dis-

trict 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-

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 plain-

tiffs’ allegations that, prior to rescinding TPS status

for Haiti, the President reportedly stated that Hai-

tians “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 Immi-

gration Agenda, N.Y. Times (Dec. 23, 2017).24 The

President is further reported to have voiced a prefer-

ence for immigrants from countries “like Norway.”

See Josh Dawsey, Trump derides protections for im-

migrants from ‘shithole’ countries, Wash. Post (Jan.

12, 2018).25

This atmosphere of hostility—which has unques-

tionably 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

24 Available at https://www.nytimes.com/2017/12/23/us/politics/

trump-immigration html.

2° Available at https://www.washingtonpost.com/politics/trump-

attacks-protections-for-immigrants-from-shithole-countries-in-

oval-office-meeting/2018/0 1/1 1/bfc0725c-f711-' Le7-9laf-3lac72

9add94_story. html?utm_term=.3cal973048c5.

environment around immigration, has the potential

to amplify the negative effect of the citizenship ques-

tion on self-response rates....|A] hostile macro-

environment 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 offi-

cial action in multiple ways, causing immigrant pop-

ulations to have significant concerns about issues

such as the “Muslim Ban,” as well as a general wari-

ness 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 ex-

press new concerns about topics like the ‘Muslim

ban,’ discomfort ‘registering’ other household mem-

bers 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, par-

ticularly among immigrant respondents, have in-

creased markedly this year.”).2° 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

“6 Available at https://www2.census. gov/cac/nac/meetings/2017-

11/Memo-Regarding-Respondent-Confidentiality-Concerns. pdf.

U.S. see life differently in many ways, Pew Research

Ctr. (Apr. 17, 2018).?7

The chilling effect of the Citizenship Status Ques-

tion will be amplified not just by the national politi-

cal climate, but also by existing concerns regarding

surveillance and over-policing among Black immi-

grant 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 Ex-

ecutive 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 anti-

immigrant and anti-Black sentiment in the United

States. Given that Black people are situated at the

27 Available at https://www.pewforum.org/essay/m *t.ms-in-

america-immigrants-and-those-born-in-u-s-see-life-differently-

in-many-ways/.

% Available at http://www.stateofblackimmigrants.com/assets/

sobi-fullreport-jan22. pdf.

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 undocu-

mented—who are already at risk of being under-

counted by virtue of being Black, Black and immi-

grant, or Black and noncitizen. As a result, the Citi-

zenship Status Question would have a detrimental

impact on the Black population’s political represen-

tation and receipt of critical public resources.

C.A complete and accurate count is neces-

sary 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 Cit-

izenship 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 ad-

dress barriers to equal opportunity in areas such as

voting rights, employment, education, housing, lend-

ing, healthcare, and criminal justice, among others.

See Race and Ethnicity in the 2020 Census: Improv-

ing Data to Capture a Multiethnic America, The

Leadership Conference & Educ. Fund 9 (Nov. 2014)

{hereinafter Race and Ethnicity in the 2020 Cen-

sus].2° Fair political representation, access to gov-

ernment 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 de-

press response rates for the Black population while

further entrenching the discrimination that Black

people already experience in contexts that span eve-

ry facet of life.

1. Political Representation

Because of the key role that census data plays in

political redistricting, the Black population under-

count deprives Black people of fair and equal repre-

sentation. By April 1 of the year following a census

year, the Census Bureau sends to each State a “re-

districting file” or “P.L. 94-171 file,” which includes

data on population counts and selected characteris-

tics for that State. 13 U.S.C. § 141(c); Race and Eth-

nicity in the 2020 Census, supra, at 9. The redis-

tricting file includes information on race and the oc-

cupancy status of housing units. States use this data

to draft redistricting plans for congressional and

state legislative seats, as well as for local govern-

ment 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 hav-

ing larger numbers of people per representative, di-

2” Available at http://civilrightsdocs.info/pdf/reports/Census-

Report-2014-WEB.pdf.

rectly contravening the principle of “equality of rep-

resentation,” which underlies the one-person, one-

vote 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 dis-

tricts “promotes equitable and effective representa-

tion”). 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, earn-

ings, 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 gov-

ernment 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 ena-

bling 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 em-

ployment opportunity for racial and ethnic minori-

ties.

3. Education

Accurate census data is also crucial to safeguard-

ing 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 To-

day (May 15, 2014)*®; Chandi Wagner, School Segre-

gation Then & Now: How to Move Toward a More

Perfect Union 6 (Jan. 2017).*! Accurately identifying

schoo) district populations allows local governments

to accurately direct education funding. Specifically,

census data ensures that inequities in teaching, facil-

ities, academic programs, and other school resources

can be identified and addressed, including by facili-

tating the use of supplemental programs to remedy

the disadvantages facing schools in distressed areas.

See Melissa Etehad, The 2020 census could under-

count 1 million kids — which means less money for

California schools, L.A. Times (July 9, 2018, 3:00

AM).*2. The use of this data ensures that all stu-

dents, 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/nation-

now/2014/05/15/school-segregation-civil-rights-project/9 1 15823/.

3! Available at http://www centerforpubliceducation.org/system/

files/School% 20Segregation%20F ull% 20Report_0.pdf.

82 Available at https://www.latimes.com/nation/la-na-counting-

children-census-20180709-story. html.

Conference Educ. Fund, Factsheet: Will Your Kids

Count? Young children and their families in the

2020 census 1, 3 (last updated Apr. 17, 2018).*°5 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 sys-

tem from receiving federal funds when such an enti-

ty is found to be discriminating based on race or eth-

nicity). For example, census data can help identify

situations in which local or state education policy-

makers 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 pub-

lic enforcement agencies, researchers, and fair hous-

ing 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 practic-

es, denial of credit, and predatory lending practices

in communities of color. See generally National Fair

Housing Alliance, Zip Code Inequality: Discrimina-

tion by Banks in the Maintenance of Homes in

Neighborhoods of Color (Aug. 27, 2014).54

88 Available at http://civilrightsdocs. info/pdf/census/F act-Sheet-

Undercount-of- Young-Children. pdf.

‘4 Available at https://nationalfairhousing.org/wp-content/

uploads/2017/04/2014-08-27_NFHA_REO_report.pdf.

5. Criminal Justice

Census-based research has directly supported poli-

cymakers in addressing racial and ethnic disparities

in the criminal justice system, including, for exam-

ple, 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)*5; see generally Dep't of

Justice, Smart on Crime: Reforming the Criminal

Justice System for the 21* Century (Aug. 2013).

Civil rights activists have also relied on research in-

corporating census data to continue to push for legis-

lative 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 dis-

proportionately affect Black people.

***

The varied ways that census data is used to deter-

mine political structure and government policy illus-

trate the importance of an accurate census. Given

that the census has historically been inaccurate be-

cause of its systematic undercount of the Black popu-

lation, it is particularly urgent to avoid any modifica-

tion to the 2020 census that could exacerbate this

36 Available at https://www.sentencingproject.org/wp-content/

uploads/2016/06/The-Color-of-Justice-Racial-and-Ethnic-

Disparity-in-State-Prisons. pdf.

% Available at https://www.justice.gov/sites/default/files/ag/

legacy/2013/08/12/smart-on-crime. pdf.

well-documented historical undercounting. Any

change that creates a risk of increasing such under-

counting—as the Citizenship Status Question un-

questionably does, see pp. 11-24, supra—should be

reviewed with particular care and caution, as it risks

further depriving the Black population of fair repre-

sentation, 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 se-

verely jeopardizing accurate enumeration, Petition-

ers 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 long-

established experience bringing Section 2 cases un-

der 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

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 plain-

tiffs 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 ma-

jority votes sufficiently as a bloc to enable it... usu-

ally 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 deter-

mine “whether as a result of the challenged practice

or structure plaintiffs do not have an equal oppor-

tunity to participate in the political processes and to

elect candidates of their choice.” /d. at 44 (internal

citation and quotation omitted). This analysis is in-

formed 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 ex-

tent to which minority group members bear the ef.-

fects of past discrimination in areas such as educa-

tion, employment, and health, which hinder their

ability to participate effectively in the political pro-

cess.” Id. at 44-45."

Citizenship data is one piece of evidence relevant

to one aspect of this multi-stage, multi-factor in-

quiry: whether the minority group's eligible voter

population is large enough to allow minority voters

to elect their candidates of choice. See League of Lat-

in Am. Citizens (LULAC) v. Perry, 548 U.S. 399, 429

(2006) (calling citizenship data a “starting point” for

the Section 2 inquiry).** Existing data sources, in-

cluding citizenship data obtained through the census

long-form questionnaire, have proven more than suf-

ficient for this threshold purpose. For the entire his-

tory of the Voting Rights Act, the Census Bureau has

*’ The other “objective factors’ are:

the extent to which voting in the elections of the

State or political subdivision is racially polar-

ized; the extent to which the State or political

subdivision has used voting practices or proce-

dures that tend to enhance the opportunity for

discrimination against the minority group, such

as unusually large election districts, majority

vote requirements, and prohibitions against bul-

let voting; the exclusion of members of the mi-

nority group from candidate slating process-

es;... the extent to which members of the mi-

nority group have been elected to public office in

the jurisdiction ... evidence demonstrating that

elected officials are unresponsive to the particu-

larized 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).

Citizenship data may also be relevant in Section 2 vote dilu-

tion litigation to evaluate the sufficiency of remedial maps.

collected citizen voting-age population (““CVAP”) da-

ta, first through the long-form census—a longer ver-

sion of the standard census form sent to a subset of

households—and more recently through the Ameri-

can Community Survey (“ACS”), which is a monthly

long-form survey issued to a representative statisti-

cal 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).*°

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 Educa-

tional Fund (“MALDEF”), have used the existing da-

ta 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 ‘.D.

” Available at https://www.census.gov/content/dam/Census/

library/working-papers/2000/acs/2000_Chand_01.pdf.

Ga. 2015); Testimony of Lawyers’ Committee for Civ-

il Rights Under Law Submitted by Kristen Clarke to

the U.S. House of Representatives Judiciary Com-

mittee Subcommittee on the Constitution and Civil

Justice Hearing on “Questions Regarding the U.S.

Census” at 3-4 (June 8, 2018); MALDEF Letter, su-

pra, at 4. Far from calling the sufficiency of this da-

ta 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 (find-

ing 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 ad-

equate 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 sta-

tistical 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 politica! participation

data in evaluating redistricting proposals for compli-

ance 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

enforcement purposes, new citizenship data collected

from _..» decennial census in response to the Citizen-

ship Status Question would be /ess, not more, accu-

rate. 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 con-

trast, data derived from statistical sampling is cor-

rected to account for disparate response rates, dimin-

ishing undercounting concerns. See American Com-

munity Survey Design and Methodology, Chapter 11,

Weighting and Estimation, U.S. Census Bureau 10

(Rev. Dec. 2010) [hereinafter Weighting and Estima-

tion].*° 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 col-

lect with the Citizenship Status Question. See, e.g.,

id.; MALDEF Letter, supra, at 6-7. Moreover, de-

cennial census data captures only a snapshot of the

U.S. population every ten years.*! By contrast, ACS

” Available at https://www.census.gov/content/dam/Census/

library/publications/2010/acs/Chapter_11_RevisedDec2010.pdf.

*! 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 pro-

duced 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 Popu-

lation by Race and Ethnicity, Census.gov (Feb. 1, 2018),

https://www.census. gov/programs-surveys/decennial-

census/about/voting-rights/cvap.2019. html (identifying the Cen-

sus Bureau's data on citizen voting age population by race and

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., Be-

navidez v. City of Irving, Tex., 638 F. Supp. 2d 709,

730 (N.D. Tex. 2009) (relying on ACS data to deter-

mine 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 Citizen-

ship Status Question would help, rather than hurt,

the Census Bureau’s ability to obtain accurate citi-

zenship data, further supports Judge Furman’s as-

sessment that the “evidence suggest[s] that Secre-

tary Ross’s stated rationale for adding the |[citizen-

ship 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... demon-

strate that Secretary Ross’s reliance on VRA en-

forcement to justify inclusion of the citizenship ques-

tion was mere pretext|.]”). This pretextual justifica-

tion, part of a long and shameful history of manipu-

lating the census to avoid an accurate enumeration

of the Black population, should be rejected.

ethnicity as “sourced from the Americe 1 Community Survey

(ACS) 5-year estimates’).

**k

Simply put, the civil rights organizations that have

successfully enforced Section 2 of the Voting Rights

Act since its inception are nearly unanimously op-

posed to the addition of the Citizenship Status Ques-

tion. See, e.g., MALDEF Letter, supra; NAVRC Let-

ter, supra. There is no evidence supporting Petition-

ers’ 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 discrimina-

tory, government action.

CONCLUSION

The judgment of the district court should be

affirmed.

Respectfully submitted.

SHERRILYN A. IFILL DAVID J. ZIMMER

JANAI S. NELSON Counsel of Record

SAMUEL SPITAL JOSHUA J. BONE

LEAH C, ADEN GOODWIN PROCTER LLP

AARON SUSSMAN 100 Northern Ave.

J. ZACHERY MORRIS Boston, MA 02210

NAACP LEGAL DEFENSE & dzimmer@goodwinlaw.com

EDUCATIONAL FUND, INC.

40 Rector Street, 5th Floor bsives UHR =

New York, NY 10006 MADELINE DILASCIA

(212) 965-2200 GOODWIN PROCTER LLP

Counsel for Amicus Curiae

April 1, 2019

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