Monday, April 15, 2019
The United States Supreme Court hear oral arguments in Iancu v. Brunetti, a First Amendment facial challenge to Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), which prohibits the Patent and Trademark Office from registering “immoral” or “scandalous” trademarks.
Recall that Brunetti's apparel line, named "fuct," was denied a trademark and a divided Federal Circuit Court panel held the provision unconstitutional. Recall also that the United States Supreme Court in Matal v. Tam (2017) held that the disparagement provision in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a) violated the First Amendment, but despite the unanimous conclusion there were fractured rationales.
Indeed, whether or not Tam resolved the issue in Brunetti was a centerpiece of the oral argument, with Justice Sotomayor essentially asking the Deputy Solicitor General, Malcolm Stewart, to distinguish Tam within the first few minutes. Moreover, some of the unresolved issues in Tam — including the actual role of trademark registration, how trademark registration differs from direct prohibition, whether there could be any content (or viewpoint) basis on which to deny a trademark, and how the trademark program differs from other programs such as municipal advertising or government grants — reappeared in the Brunetti argument.
The Justices seemed troubled by any argument that the Patent and Trademark Office (PTO) could reject a trademark on the basis that a majority or "substantial segment" of people might find it objectionable, especially given changing morals and issues about which segments of the population (as Justice Ginsburg asked, would this include a composite of 20 year olds).
Justice Breyer was particularly interested in whether the PTO could reject racist trademarks. For Breyer, certain racial slurs are "stored in a different place in the brain. It leads to retention of the word. There are lots of physiological effect with very few words." While Malcolm Stewart stated that he thought racial slurs were taken off the table by Tam, in his rebuttal he stated that " with respect to the single-most offensive racial slur, the PTO is currently holding in abeyance applications that incorporate that word" pending the possibility that the present decision could leave open the possibility that that word might be viewed as scandalous.
While many of the other hypotheticals involved profanity, obscenity, or "dirty words" (FCC v. Pacifica), Justice Breyer's concern will surely be addressed by at least one opinion when the decision is rendered in Brunetti.
Saturday, April 13, 2019
United States District Judge for the Southern District of Mississippi Carlton Reeves in a speech at the University of Virginia School of Law addressed the critiques of the judiciary and the lack of diversity in judicial appointments. Judge Reeves recounts a history of the federal bench and equality, with some progress in diversifying the bench, but naming the present state of affairs as the "third great assault on our judiciary."
The written version of the speech includes footnotes, including references to presidential tweets. In speaking about "this Administration’s judicial nominations, especially those confirmed with the advice and consent of the Senate," Judge Reeves noted:
Of the Article III judges confirmed under the current Administration, 90% have been white. Just one of those judges is black. Just two are Hispanic. It’s not just about racial diversity. Barely 25% of this Administration’s confirmed judges are women. None have been black or Latina. Achieving complete gender equality on the federal bench would require us to confirm only 23 women a year. How hard could that be? . . . . Think: in a country where they make up just 30% of the population, non-Hispanic white men make up nearly 70% of this Administration’s confirmed judicial appointees. That’s not what America looks like. That’s not even what the legal profession looks like.
In addition to commenting on the lack of diversity on the United States Supreme Court ("We have as many justices who have graduated from Georgetown Prep as we have Justices who have lived as a non-white person") and the duty of judges to diversify their own hiring of law clerks, Judge Reeves spoke to access to justice issues:
Courts must do more than denounce and diversify. For the attack on the judiciary aims to close the courthouse doors to those who most need justice by shrinking the size, resources, and jurisdiction of courts. Over the last 30 years,while the U.S. population has increased by over 30%; Congress has increased the number of Article III judges by just 3%. Meanwhile, there are continued attempts to close the doors to our own courtrooms. I think of heightened pleading standards, the rise of mandatory arbitration, and judges who proclaim that “prisoner civil rights cases should be eliminated from federal dockets.” Defending the judiciary requires judges to demand, not diminish, the resources they need to find truth. We must expand the reach and power of our courts, offering justice to all who claim the promise of America.
The speech is worth listening to in full:
Monday, March 18, 2019
The United States Supreme Court heard oral argument in Virginia House of Delegates v. Bethune-Hill involving the ultimate issue of whether the redistricting plan of Virginia is racial gerrymandering in violation of the Equal Protection Clause of the Fourteenth Amendment. Like many states, the redistricting legal landscape in Virginia is complex; a good explainer from Loyola-Los Angeles Law School is here.
Recall that two years ago, in March 2017, the Court in Bethune-Hill v. Virginia State Board of Elections, the Court clarified the standard for deciding whether racial considerations in reapportionment violate the Equal Protection Clause. It affirmed the three-judge court's decision as to one of the districts as constitutionally considering race, but remanded the determination of the constitutional status of the other eleven districts.
On remand, the three-judge court divided, with the detailed and extensive opinion authored by Judge Barbara Milano Keenan for the majority ultimately concluding that the "Commonwealth of Virginia's House of Delegates Districts numbers 63, 69, 70, 71, 74, 77, 80, 89, 90, 92, and 95 as drawn under the 2011 Redistricting Plan, Va. Code Ann. § 24.2—3o4.03, violate the Equal Protection Clause. "
During that proceeding, the Virginia House of Delegates — one house of the Virginia legislature — was allowed to intervene, but a question on appeal to the United States Supreme Court is whether the House of Delegates, represented by Paul Clement, has standing to appeal, especially given that the Virginia Board of Elections, represented by Toby Heytens, the appellate the first time the case reached the United States Supreme Court, is now the appellee in agreement with Bethune-Hill, represented by Marc Elias. Morgan Ratner, an assistant Solicitor General, appeared on behalf of the United States and fully supported neither party, but did argue that the House of Delegates lacked standing, because "the House as an institution isn't harmed by changes to individual district lines, and while states can authorize legislatures to represent them in court, Virginia hasn't done so." While Justice Alito seemed to take the position that all the House of Delegates needed to establish was some injury on fact, such as the cost of publishing a new map showing the new districts, with Justice Sotomayor labeling Clement's statement that Virginia had "forfeited" the ability to object to the appeal as an "extreme" view. There was seemingly some sympathy to Toby Heytens' view that the Court was essentially being asked to referee a dispute between branches of the Virginia state government, with Justice Alito also asking whether or not the question of which entity may represent the state is not a question that should be certified to the Virginia Supreme Court. The precedential value and applicability of Minnesota State Senate v. Beens (1972), which Justice Ginsburg pointed out has not been cited in 30 years and was from an era in which standing was more "relaxed" and which others distinguished in terms of the impact on the legislative body.
On the merits, one issue was credibility of witnesses and deference to the court's factual determinations, especially given that the first three judge court had reached some opposite conclusions, including in some districts whether or not racial considerations predominated (and thus strict scrutiny would apply). This might seemingly be explained by the different standard articulated by the Court's previous decision in Bethune-Hill before remand, but this did not seem to be addressed. As typical, the precise facts in the map-making and the interplay between the Voting Rights Act and the Equal Protection Clause made the argument exceedingly detailed. For example, there are particular questions about the BVAP [Black Voting Age Population] in specific districts and what percentage is acceptable in each district as individualized or as comparative to other districts.
If the Court does not resolve the case on lack of standing, one can expect another highly specific opinion regarding racial gerrymandering in the continuing difficult saga of racial equality in voting.
[image: Virginia House of Delegates 2012 via]
Wednesday, March 6, 2019
In his 126 page opinion in California v. Ross, United States District Judge Richard Seeborg has found the decision of Secretary of Commerce Wilbur Ross to add a citizenship question to the 2020 census unlawful under the Administration Procedure Act and unconstitutional under the Enumeration Clause.
Recall that California filed its complaint in March 2018, including a claim that the Constitution requires the “actual Enumeration” of all people in each state every ten years for the sole purpose of apportioning representatives among the states. U.S. Const. art. I, § 2, cl. 3, and amend. XIV, § 2, and that by including the citizenship question on the 2020 Census, Defendants are in violation of the “actual Enumeration” clause of the Constitution because the question will diminish the response rates of non-citizens and their citizen relatives.
Recall also that New York filed a similar complaint, which led to the 277 page decision in New York v. United States Department of Commerce rendered in January 2019, which is now scheduled for oral arguments at the United States Supreme Court on April 23 on the issue of whether the Secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq. An additional issue in the New York litigation — and the issue on which the United States Supreme Court first granted certiorari — involves the refusal of Secretary Ross to be deposed regarding his rationales for adding the citizenship question.
In California v. Ross, Judge Seeborg's opinion concluded that the plaintiff state of California, as well as plaintiff counties and cities in California, and the organization, Black Alliance for Just Immigration, satisfied the requirements for Article III standing. Important to this determination are questions of whether there would be actual injury in fact if a citizenship question were added to the census. Judge Seeborg extensively discussed the affidavits and experts regarding the relationship between the question and people responding to the census, an issue that dovetails with the constitutional Enumeration Clause claim. Judge Seeborg generally concluded there was Article III standing.
The major portion of Judge Seeborg's opinion is devoted to the Administrative Procedure Act. Judge Seeborg's concluded that "one need look no further than the Administrative Record to conclude that the decision to include the citizenship question was arbitrary and capricious, represented an abuse of discretion, and was otherwise not in accordance with law." However, Judge Seeborg's opinion also separately analyzed "extra-record" including
the absence of any effort to test the impact of the addition of the citizenship question to the census, the deviation from the Census Bureau’s usual process for adding new questions to the census, the troubling circumstances under which the DOJ’s request letter was drafted and procured, and Sessions’ order prohibiting DOJ staff from meeting with Census Bureau officials to discuss alternative sources of data that could meet DOJ’s VRA [Voting Rights Act] enforcement needs.
As to the Enumeration Clause, Judge Seeborg wrote:
The analysis of the Enumeration Clause claim similarly involves evidence beyond the four corners of the Administrative Record. As a general proposition, the decision to include a specific question on the census is committed to the discretion of the Commerce Secretary and does not implicate the constitutional command that all persons in each state be counted every ten years. However, if the Secretary’s decision to include a question affirmatively interferes with the actual enumeration and fulfills no reasonable governmental purpose, it may form the basis for a cognizable Enumeration Clause challenge.
Importantly, in finding the Enumeration Clause violation, Judge Seeborg concluded that the inclusion of a citizenship question
will materially harm the accuracy of the census without advancing any legitimate governmental interest. This is no ordinary demographic inquiry. The record reveals that the inclusion of the citizenship question on the upcoming census will have a unique impact on the Census Bureau’s ability to count the public, to the point where the inclusion of this question is akin to a mechanics-of-counting-type issue. In short, Secretary Ross’s decision to add the citizenship question to the 2020 Census undermines the “strong constitutional interest in [the] accuracy” of the census, and does so despite the fact that adding this question does not advance any identifiable government purpose.
[citation omitted]. The remedy for this constitutional violation is not a simple vacatur as it is for the APA injunction, but a nationwide injunction against including the citizenship question on the 2020 Census:
The record in this case has clearly established that including the citizenship question on the 2020 Census is fundamentally counterproductive to the goal of obtaining accurate citizenship data about the public. This question is, however, quite effective at depressing self-response rates among immigrants and noncitizens, and poses a significant risk of distorting the apportionment of congressional representation among the states. In short, the inclusion of the citizenship question on the 2020 Census threatens the very foundation of our democratic system—and does so based on a self-defeating rationale. In light of these findings, Defendants do not get another bite at the apple. Defendants are hereby enjoined from including the citizenship question on the 2020 Census, regardless of any technical compliance with the APA.
Given the nationwide injunction, the fast approaching deadlines for preparation of the 2020 Census, and the already-scheduled April arguments before the United States Supreme Court, the DOJ attorneys will probably act quickly to seek review of this decision.
[image: Los Angeles Census materials, 1920, via]
Monday, February 25, 2019
In a complaint filed in United States District Court for the Middle District of Florida against Donald Trump and the Donald Trump Campaign, former campaign staffer Alva Jones seeks relief on three counts: battery as against Trump in his individual capacity for a forcible kiss; unequal pay based on gender under the Unequal Pay Act against the Campaign organization; and unequal pay based on race under 42 USC §1981 against the Campaign organization.
The 39 page complaint in Jones v. Trump is filled with factual allegations, embedded tweets and photographs, and numerous footnotes. The allegations substantiating the battery claim include recitations regarding previous allegations and statements regarding similar actions.
Like the ongoing suit in New York state courts, Zervos v. Trump, for defamation linked to sexual harassment, one issue that defendant Trump could raise would be presidential immunity. But the argument for any immunity is exceedingly weak given the United States Supreme Court's unanimous 1997 decision of Clinton v. Jones holding that then-President Clinton was subject to suit in federal court. And any immunity does not extend to the campaign organization.
And as Ronan Farrow writes in the New Yorker:
The most legally significant aspect of Johnson’s suit may ultimately be something the complaint does not explicitly address: the pervasive use of nondisclosure agreements by Trump during his campaign and in his Administration. Johnson’s suit is at least the sixth legal case in which Trump campaign or Administration employees have defied their nondisclosure agreements.
This will definitely be a case to watch, even if the constitutional issues are not the primary ones it certainly has constitutional dimensions.
Wednesday, February 13, 2019
In his essay review of the new book Separate: The Story of Plessy v. Ferguson, and America's Journey from Slavery to Segregation by Steve Luxenberg, critic Louis Menand retells the history of the Plessy v. Ferguson decision: infamous in hindsight but unnoticed in its time. Menand remarks, “even when principal figures in the case died, years later, their obituaries made no mention of it.” Menand contextualizes the case within the post-Reconstruction Jim Crow south and examines Plessy’s role in enshrining white supremacy.
Menand provides a rich discussion of Luxenberg’s hefty book (at 624 pages) which focuses its narrative on three key players in Plessy v. Ferguson: “Albion Tourgée, one of Plessy’s lawyers; Henry Billings Brown, the Justice who wrote the majority opinion; and John Marshall Harlan, who filed the lone dissent.” Menand’s assessment of the book is mixed. For example, Menand writes that the book is
deeply researched, and it wears its learning lightly. It’s a storytelling kind of book, the kind of book that refers to Albion Tourgée as Albion and John Harlan as John, and that paints the scene for us (“On a bright and beautiful night in late October 1858 . . . ”). Luxenberg does not engage in psychological interpretation. He doesn’t mention, for instance, that [Justice Henry Billings] Brown’s Yale classmates called him Henrietta because they thought he was effeminate—which might have contributed to Brown’s eagerness not to appear like a man who didn’t belong. And he dismisses in a footnote speculation that Robert Harlan, a man of mixed race who grew up as a member of John Harlan’s family, might have been a half brother. Even if he wasn’t in fact related to John, however, it might have mattered if John believed otherwise.
In short, Menand concludes that while the book is a "different way to tell the story," it "does not give us a new story," and observes that it "does seem a misjudgment to tell the story of an important civil-rights case as the story of three white men."
But while Menand argues that the book doesn't ultimately help with "the big historical questions," it is clear from Menand's review that the book offers deep insights into the case that constitutionalized racial segregation as equality. In Plessy, the United States Supreme Court betrayed the promise — and meaning — of the the Fourteenth and Thirteenth Amendments to the Constitution. By focusing at the legal actors who participated in the case, including Tourgée who argued for Plessy, Luxenberg's book is sure to attract attention from constitutional scholars and students. I look forward to reading it.
Tuesday, January 15, 2019
In its 277 page Opinion in New York v. United States Department of Commerce, United States District Judge Jesse Furman concludes by vacating and enjoining the implementation of the decision of Department of Commerce Secretary Wilbur Ross (pictured below) adding a citizenship question to the 2020 census questionnaire.
Recall that this challenge is one of several to the proposal to add a citizenship question to the 2020 census. Recall also that in July, Judge Furman denied in part motions to dismiss and allowed the case to proceed. Judge Furman also allowed discovery in the form of a deposition of Wilbur Ross, an order which was stayed and is now before the United States Supreme Court: oral argument in Department of Commerce v. USDC Southern District of New York is scheduled for February 19, 2019, with the question presented as under the Administrative Procedure Act.
Here New York joins seventeen other state plaintiffs, the District of Columbia, as well as six cities and the United States Conference of Mayors, and the case is consolidated with New York Immigration Coalition v. United States Department of Commerce, with NGO plaintiffs. The claims involve the "actual enumeration" requirements in the Constitution, Art. I, § 2, cl. 3, and Amend. XIV, § 2, as well as the Administration Procedure Act, with the NGO plaintiffs also raising a Due Process/Equal Protection claim which Judge Furman considered. The case was heard by Judge Furman in an eight day bench trial, despite, as Judge Furman's opinion phrases it the Defendants who have "tried mightily to avoid a ruling on the merits of these claims."
Judge Furman's lengthy opinion helpfully contains a table of contents which serves as an outline for the complicated facts and process involved in the case.
A large portion of Judge Furman's opinion is devoted to the constitutional question of standing. This Article III issue — requiring an injury in fact, fairly traceable to the challenged conduct of the defendant, and that is likely to be redressed by a favorable judicial decision — is in essence a question of the Enumeration Clause problem. In other words, to prove injury in fact, the Plaintiffs must prove that the addition of the citizenship question would impact enumeration in a particular way, or "cause a differential decline" in self-response rates which would not be cured, and which would effect apportionment and other matters. For Judge Furman, these and other claims, including a diversion of resources, harm to the quality of data used in intrastate policies, were sufficient to confer standing to the states. Additionally, Judge Furman addressed and found for the most part associational standing for the NGO plaintiffs.
On the merits, Judge Furman rested his decision on the APA claims, including that the decision violated provisions of the APA, was arbitrary and capricious, and most unusually, pretextual.
The evidence in the Administrative Record and the trial record, considered separately or together, establishes that the sole rationale Secretary Ross articulated for his decision — that a citizenship question is needed to enhance DOJ’s VRA enforcement efforts — was pretextual.
Judge Furman found that the "presumption of regularity" was rebutted here.
However, Judge Furman found that the equal protection claim (as part of Due Process Clause of the Fifth Amendment) as pressed by the NGO plaintiffs could not be sustained. Essentially, Judge Furman found that there was not sufficient proof that the pretextual decision was a pretext for discriminatory intent necessary under equal protection, as had been alleged and survived the motion to dismiss, but which now — without the deposition of Wilbur Ross — was not possible to prove, at least not yet.
Judge Furman justified the remedy of injunction thusly:
Measured against these standards, Secretary Ross’s decision to add a citizenship question to the 2020 census — even if it did not violate the Constitution itself — was unlawful for a multitude of independent reasons and must be set aside. To conclude otherwise and let Secretary Ross’s decision stand would undermine the proposition — central to the rule of law — that ours is a “government of laws, and not of men.” John Adams, Novanglus Papers, No. 7 (1775). And it would do so with respect to what Congress itself has described as “one of the most critical constitutional functions our Federal Government performs.” 1998 Appropriations Act,
§ 209(a)(5), 111 Stat. at 2480-81.
The government is sure to appeal.
Monday, January 14, 2019
Congressman Bobby Rush of Illinois District 1 has introduced a Resolution in the House of Representatives to censure Congressman Steve King of Iowa, listing specific incidents beginning in 2006 and ending with the January 10 remark by Steve King to the New York Times: "White nationalist, White supremacist, Western civilization—how did that language become offensive?’’ Interestingly, the NYT article was profiling King as a precursor of the president's current demand for a "wall" on the southern border of the nation. In a subsequent television interview Steve King stated he rejected white supremacy.
In November, a coalition of civil rights groups wrote a letter to the then-Speaker of the House and the then-House Majority Leader seeking censure of Representative King, detailing some of the same incidents in the Rush Resolution (and providing citations) as well as including others.
Wednesday, January 2, 2019
In a column at The Atlantic, "The Path to Give California 12 Senators, and Vermont Just One," subtitled "Maybe the two-senators-per-state rule isn’t as permanent as it seems," Political Science Professor Eric Orts agrees with many others that the Senate is essentially anti-democratic and that the time has come to change the 2 senators from every state rule.
Orts recognizes that the 2 Senators per state rule is doubly-demanded by the text of the Constitution: Not only does Article I §3 provide that "The Senate of the United States shall be composed of two Senators from each State," but Article V respecting the amendment process specifically provides "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."
Orts proposes that a way around these Constitutional commands — at least "arguably"— is through Congressional action. Orts contends that Congress could pass a law restructuring Senate representation like this:
Start with the total U.S. population, then divide by 100, since that’s the size of the current, more deliberative upper chamber. Next, allocate senators to each state according to their share of the total; 2/100 equals two senators, 3/100 equals three, etc. Update the apportionment every decade according to the official census.
Congressional power to do so, he seems to contend, would be grounded most obviously in the Reconstruction Amendments. He cites Equal Protection Clause cases such as Reynolds v. Sims (1964) and Bush v. Gore (2000), and argues that although
the Court trimmed a portion of the Voting Rights Act in Shelby County v. Holder in 2013, Chief Justice John Roberts, in his majority opinion, reaffirmed the authority of Congress to regulate in this field and endorsed a forward-looking orientation. “The Fifteenth Amendment commands that the right to vote shall not be denied or abridged on account of race or color, and it gives Congress the power to enforce that command," he wrote. “The Amendment is not designed to punish for the past; its purpose is to ensure a better future.”
Thus, inherent in Orts's argument is not simply that the Senate does not adequately represent the population of the United States but that this inadequacy is racialized. As he notes, under the current configuration it is states with small predominantly white populations that benefit: "in California, 38 percent of citizens are white. In Texas, that figure is 43 percent," while in the two smallest states, "Vermont is 94 percent white, and Wyoming is 86 percent white."
Indeed, Orts states that his proposal
corrects a heavy, unjustified bias favoring white citizens in the Senate. It doesn’t go too far to describe the current Senate apportionment as a vehicle entrenching white supremacy.
Would the Supreme Court uphold such a statute? Orts suggests that the Court could "stay out of the mix" by deferring to Congress or invoking the political question doctrine.
Would Congress ever pass such a statute? Orts admits that it is unlikely in large part because a more democratic Senate is a more Democratic party Senate. But, he ends, "who knows" what 2020 will bring.
[image: United States Capitol by C. E. Loven after photograph of drawing by Thomas U. Walter, via]
Friday, November 2, 2018
In an Order in Georgia Coalition for the People's Agenda v. Kemp, United States District Judge Eleanor Ross has found that the challengers would be likely to succeed on the merits of their constitutional claim regarding Georgia's flagging of potential voters as noncitizens ineligible to vote. Recall that a different district judge recently issued an injunction against Secretary of State Kemp — who is also a candidate for Governor — in a challenge to the "mismatch" of voter names.
Here, Judge Ross articulated the appropriate framework as:
When deciding whether a state election law violates First and Fourteenth Amendment associational rights, we weigh the character and magnitude of the burden the State’s rule imposes on those rights against the interests the State contends justify that burden, and consider the extent to which the State’s concerns make the burden necessary.
Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997).
Judge Ross first found that the burden was "severe for those individuals who have been flagged and placed in pending status due to citizenship." Discussing one particular person, Judge Ross stated that
it was not a nominal effort for him to vote; it was a burdensome process requiring two trips to the polls, his own research, and his hunting down a name and telephone number to give to election officials so that his citizenship status could be verified, all after he had already submitted proof of citizenship with his voter registration application. This is beyond the merely inconvenient.
Relying on Timmons, Judge Ross continued with a strict scrutiny analysis, finding that while the State's interest in ensuring only citizens vote was compelling, the specific means chosen were not narrowly tailored. Here, the focus was on the fact that 4 of the 5 ways in which the State proposed that persons could verify their citizenship required a "deputy registrar," which were derived from a previous settlement. However, Judge Ross declared that the court's hands were not tied as to this matter, and ultimately all 5 of the options "for allowing individuals with flags for citizenship to vote in the upcoming election, sweep broader than necessary to advance the State's interest, creating confusion as Election Day looms."
Judge Ross directed Brian Kemp in his official capacity as Secretary of State to:
Allow county election officials to permit eligible voters who registered to vote, but who are inaccurately flagged as non-citizens to vote a regular ballot by furnishing proof of citizenship to poll managers or deputy registrars.
Update the “Information for Pending Voters” on the Secretary of State’s website so that it provides (a) clear instructions and guidance to voters in pending status due to citizenship and (b) a contact name and telephone number that individuals may call with questions about the pending status due to citizenship.
Direct all county registrars, deputy registrars, and poll managers on how to verify proof of citizenship to ensure that they can properly confirm citizenship status consistent with this order. Issue a press release (a) accurately describing how an individual flagged and placed in pending status due to citizenship may vote in the upcoming election, as set forth herein; and (b) providing a contact name and telephone number that individuals may call with questions about the pending status due to citizenship.
Issue a press release (a) accurately describing how an individual flagged and placed in pending status due to citizenship may vote in the upcoming election, as set forth herein; and (b) providing a contact name and telephone number that individuals may call with questions about the pending status due to citizenship.
- Direct the county boards of elections to post a list of acceptable documentation to prove citizenship, which includes a naturalization certificate, birth certificate issued by a state or territory within the United States, U.S. passport, and other documents or affidavits explicitly identified by Georgia law and listed on the Georgia Secretary of State’s website, at polling places on Election Day.
Wednesday, October 10, 2018
In his opinion in Brackeen v. Zinke, United States District Judge for the Northern District of Texas, Reed O'Connor, entered summary judgment for the plaintiffs and found that portions of the Indian Child Welfare Act, ICWA are unconstitutional, specifically violating equal protection, the non-delegation doctrine of Article I, and the commandeering principle of the Tenth Amendment. Passed in 1978, the general purpose of ICWA is to prevent Native children from being removed from their families and tribes based on a finding that "an alarmingly high percentage of Indian families [were being] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies” as Judge O'Connor's opinion acknowledged, quoting Adoptive Couple v. Baby Girl (2013) (quoting 25 U.S.C. § 1901(4)).
Judge Reed O'Connor, however, accepts an argument that was sidestepped by the United States Supreme Court in Baby Girl: that ICWA violates equal protection (applied to the federal government through the Fifth Amendment) by making a racial classification that does not survive strict scrutiny. Recall that in some briefs as well as in the oral argument, the specter of the racial classification was raised. In United States District Judge O'Connor's opinion, that specter is fully embodied. Judge O'Connor found that ICWA does make a racial classification, rejecting the government's view that the classification at issue was a political category. Judge O'Connor reasoned that ICWA defines Indian child not only by membership in an Indian child, but extends its coverage to children "simply eligible for membership who have a biological Indian parent." Thus, Judge O'Connor reasoned, ICWA's definition "uses ancestry as a proxy for race" and therefore must be subject to strict scrutiny. Interestingly, the United States government did not offer any compelling governmental interest or argued that the classification is narrowly tailored to serve that interest. Judge O'Connor nevertheless credited the Tribal Defendants/Intervenors assertion of an interest in maintaining the Indian child's relationship with the tribe, but found that the means chosen was overinclusive, concluding that
The ICWA’s racial classification applies to potential Indian children, including those who will never be members of their ancestral tribe, those who will ultimately be placed with non-tribal family members, and those who will be adopted by members of other tribes.
On the non-delegation claim, Judge Reed O'Connor found it fatal that ICWA allows Tribes to change the child placement preferences selected by Congress and which then must be honored by the states in child custody proceedings.
On the Tenth Amendment claim, Judge Reed O'Connor relied on the Court's recent decision in Murphy v. NCAA holding unconstitutional a federal law prohibiting states from allowing sports gambling regarding anti-commandeering, concluding that
Congress violated all three principles [articulated in Murphy] when it enacted the ICWA. First, the ICWA offends the structure of the Constitution by overstepping the division of federal and state authority over Indian affairs by commanding States to impose federal standards in state created causes of action. See 25 U.S.C. § 1915(a). Second, because the ICWA only applies in custody proceedings arising under state law, it appears to the public as if state courts or legislatures are responsible for federally-mandated standards, meaning “responsibility is blurred.” Third, the ICWA shifts “the costs of regulations to the States” by giving the sole power to enforce a federal policy to the States. Congress is similarly not forced to weigh costs the States incur enforcing the ICWA against the benefits of doing so. In sum, Congress shifts all responsibility to the States, yet “unequivocally dictates” what they must do.
[citations to Murphy omitted].
October 10, 2018 in Congressional Authority, Courts and Judging, Due Process (Substantive), Equal Protection, Family, Federalism, Fifth Amendment, Fundamental Rights, Nondelegation Doctrine, Opinion Analysis, Race, Tenth Amendment | Permalink | Comments (0)
Thursday, October 4, 2018
In his opinion in Ramos v. Nielsen, United States District Judge Edward Chen of the Northern District of California enjoined the federal government's termination of TPS — Temporary Protected Status — designations for Haiti, Sudan, Nicaragua, and El Salvador.
As we previously discussed related to the NAACP complaint filed in January in Maryland and related only to Haiti, one argument is that the termination is a violation of equal protection, springing from an intent to discriminate on the basis of race and/or ethnicity.
Judge Chen's opinion finds that the preliminary injunction is warranted based on a likelihood of prevailing on the merits of an Administrative Procedure Act claim, but also on the merits of the equal protection claim. Judge Chen applied the factors from Village of Arlington Heights v. Metro. Hous. Development Corp., 429 U.S. 252 (1977), and concluded that there was sufficient evidence to
raise serious questions as to whether a discriminatory purpose was a motivating factor in the decisions to terminate the TPS designations. In particular, Plaintiffs have provided evidence indicating that (1) the DHS Acting Secretary or Secretary was influenced by President Trump and/or the White House in her TPS decision-making and (2) President Trump has expressed animus against non-white, non-European immigrants.
there were departures from the normal procedural sequence during the TPS decision-making process; that is, instead of considering all current country conditions as had been done in previous administrations, the DHS political appointees in the current administration made TPS decisions turn on whether the originating condition or conditions directly related thereto continued to exist, disregarding all other current conditions no matter how bad. Moreover, at the apparent behest of then-DHS Secretary Kelly, there was an effort to gather negative information about Haitian TPS beneficiaries prior to the decision on Haiti’s TP designation – in particular, whether Haitian TPS beneficiaries had been convicted of crimes or were on public or private relief. See Degen Decl., Ex. 84 (email). There is no indication that these factors had previously been considered by DHS in making TPS decisions; indeed, the email indicated that the request for the information should be kept quiet. See Degen Decl., Ex. 84 (email) (“Please keep the prep for this briefing limited to those on this email. If you need a specific data set and need to ask someone to pull it, please do not indicate what it is for. I don’t want this to turn into a big thing were people start prodding and things start leaking out.”). The information sought by the Secretary coincides with racial stereotypes – i.e., that non-whites commit crimes and are on the public dole.
This is yet another judicial finding that the administration has acted with racial animus and the administration is sure to appeal it.
[image: Kirstjen Nielsen, current Secretary of Department of Homeland Security]
Friday, September 28, 2018
In a Memorandum & Order in Students For Fair Admissions (SFFA) v. Harvard, United States District Judge Allison D. Burroughs has denied the cross-motions for summary judgment in this closely-watched case challenging affirmative action admissions at Harvard as discriminating against Asian-American applicants.
Although Harvard is a private university and the claim is under Title VI of the 1964 Civil Rights Act, 42 U.S.C. §2000d et. seq., the applicable precedent involves the constitutionality of affirmative action in higher education under the Equal Protection Clause. As Judge Burroughs explained in footnote 16 of the opinion:
[Defendant] Harvard notes that the Supreme Court has only addressed race-conscious admissions policies of public universities, and suggests that there are “good reasons to think that” the applicable Supreme Court precedent does not apply in the same manner to private universities like Harvard that are subject to Title VI. Because Harvard does not identify any specific reasons for distinguishing public universities from federally-funded private universities, or explain how the analytical framework would differ for private versus public litigants, the Court at this stage places Harvard on equal footing with a public university in applying Grutter [ v. Bollinger (2003)] and its progeny. See Grutter, 539 U.S. at 343 (“[T]he Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. Consequently, petitioner’s statutory claims based on Title VI . . . also fail.”); id. (“Title VI . . . proscribe[s] only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment” (citing Regents of Univ. of California v. Bakke, 438 U.S. 265, 287 (1978))).
Thus, relying on Fisher v. University Texas at Austin (2013) (Fisher I) and Fisher v. University of Texas at Austin (2016) (Fisher II), as well as Grutter, Judge Burroughs held that strict scrutiny should apply.
After detailing the Harvard admissions policy as implemented and concluding that the case is not moot, Judge Burroughs considered the four claims by SFFA: intentional discrimination, racial balancing, race as a plus factor, and race-neutral alternatives.
First, Judge Burroughs concluded that the dueling reports by experts regarding the presence or absence of a negative effect of being Asian-American on the likelihood of admission essentially precluded summary judgment. The experts' contradictory conclusions derived in part from their "divergent modeling choices" and the "credibility of the expert witnesses in making these critical modeling and analytical choices is best evaluated at the upcoming bench trial." Moreover, "stray" positive and negative remarks were also best evaluated at trial.
Second, Judge Burroughs states that while "racial balancing" has been deemed unconstitutional, the parties present "plausible but conflicting interpretations" of Harvard's use of its own admissions data from previous years. Again, the matter of credibility would be paramount.
Third, SFFA argued that Harvard was not specifically employing the notion of "critical mass" and Harvard was not considering race as a mere "plus factor." Judge Burroughs concludes that there is no requirement of "critical mass" to satisfy strict scrutiny — the use of "critical mass" was simply part of the admissions policies of the universities in Michigan (in Grutter) and Texas (in Fisher). However, as to the use of race as a plus factor, Judge Burroughs noted that under Fisher II (and Fisher I), the university is entitled to no deference in whether its means chosen is narrowly tailored and thus again the issue of credibility and fact were best determined at trial.
Fourth and finally, SFFA's argument that Harvard has failed to consider race-neutral alternatives, there was a factual dispute regarding the timing of Harvard's reconsideration of such alternatives which coincided with the imminence of the lawsuit in 2014. SFFA's expert argued that Harvard "can easily achieve diversity by increasing socioeconomic preferences; increasing financial aid; reducing or eliminating preferences for legacies, donors, and relatives of faculty and staff; adopting policies using geographic diversity; increasing recruitment efforts; increasing community college transfers; and/or eliminating early action." The Harvard Committee reached the opposite conclusion.
In short, the litigation seems set to proceed to trial perhaps with a path to the United States Supreme Court.
Thursday, July 26, 2018
In an extensive and scholarly opinion in New York v. United States Department of Commerce consolidated with New York Immigration Coalition v. United States Department of Commerce, federal judge Jesse Furman has denied in part motions to dismiss and allowed the case to proceed.
Recall that the United States Commerce Department's announcement that the 2020 Decennial Census Questionnaire will include a citizenship question, which the census has not included since 1950, has provoked several challenges including the one filed in the Southern District of New York, New York v. United States Department of Commerce, raising constitutional objections on behalf of seventeen state plaintiffs, the District of Columbia, as well as six cities and the United States Conference of Mayors. The first count of the complaint is based on the "actual enumeration" requirement and avers that adding a citizenship question will "deter participation." The allegations in the complaint regarding the link between a citizenship demand and lower participation interestingly rely on the Census Bureau's own arguments and findings. The complaint alleges that consequences of lower participation is "an undercount" that will not reflect the accurate population of the plaintiffs, effecting their representation in the House of Representatives and the Electors. Two additional counts are based on the Administration Procedure Act.
The New York Immigration Coalition complaint has "five nongovernmental organizations" as plaintiffs, challenging the Secretary’s decision on the same grounds as the states' complaint but importantly on the additional ground of equal protection.
Judge Furman first found that the "government plaintiffs" and well as the "NGO plaintiffs" had standing and then rejected that the lawsuits were political questions barred from judicial review. As Judge Furman concluded:
the Court rejects Defendants’ attempts to insulate Secretary Ross’s decision to reinstate a question about citizenship on the 2020 census from judicial review. Granted, courts must give proper deference to the Secretary, but that does not mean that they lack authority to entertain claims like those pressed here. To the contrary, courts have a critical role to play in reviewing the conduct of the political branches to ensure that the census is conducted in a manner consistent with the Constitution and applicable law.
However, Judge Furman concluded that the Plaintiffs' claims under the Enumeration Clause must be dismissed. For Judge Furman, the constitutional text's broad language combined with a historical practice that has allowed many demographic questions and once included citizenship questions leads to the result that the Secretary has power to include a citizenship query. But as Judge Furman repeatedly emphasized, this does not end the issue. For example, as Judge Furman wrote:
to say that the Secretary has authority under the Enumeration Clauseto ask about citizenship on the census is not to say that the particular exercise of that authority here was constitutional or lawful. The Secretary cannot exercise his authority in a manner that would violate individual constitutional rights, such as the right to equal protection of the laws. [citations omitted]. Nor, under the APA, may he exercise his authority in a manner that would be “arbitrary” and “capricious.” 5 U.S.C. § 706(2)(A);[citation omitted]. Plaintiffs here make both kinds of claims, and the Court’s holding that the Secretary’s decision was consonant with the Enumeration Clause does not resolve those claims.
In his discussion of the equal protection claim (under the Fifth Amendment's inclusion of equal protection), Judge Furman relegated the animus argument to a footnote stating that it need not be discussed because he found that there was a sufficient claim for a denial of equal protection on the basis of Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1997). Judge Furman concluded that the allegations of discriminatory effect — that inclusion of the citizenship question for all respondents will bear, in the form of diminished political representation and reduced federal funding, more heavily on “Latinos, Asian-Americans, Arab-Americans, and other immigrant communities of color” because the non-response rate is likely to be higher in such communities — were sufficient.
As to the required intent, Judge Furman listed the Arlington Heights factors:
(1) “[t]he historical background of the decision . . . particularly if it reveals a series of official actions taken for invidious purposes”; (2) “[t]he specific sequence of events leading up the challenged decision”; (3) “[d]epartures from the normal procedural sequence”; (4) “[s]ubstantive departures . . . , particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached”; and (5) “[t]he legislative or administrative history . . . especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports.”
and then discussed each one, focusing on departures from normal procedures (which "include overruling career staff who strongly objected to including the citizenship question, failing to extensively test reintroduction of the question, and ignoring the recommendation of the Census Bureau’s advisory committee") and specific statements, including statements of the President. Judge Furman rejected the federal goverment's argument that consideration of such statements was improper after Trump v. Hawaii, writing that the government's invocation of the case "falls somewhere between facile and frivolous," especially given its practice of truncated quotation. Instead, Judge Furman found
There is nothing in the Court’s opinion [in Trump v. Hawaii] to indicate that its deferential review applies outside of the “national security and foreign affairs context,” let alone that the Court meant to unsettle decades of equal protection jurisprudence regarding the types of evidence a court may look to in determining a government actor’s intent. In fact, even with its “circumscribed judicial inquiry,” the Hawaii Court itself considered “extrinsic evidence” — namely, President Trump’s own statements. If anything, therefore, Hawaii cuts against Defendants’ arguments rather than in their favor.
Judge Furman thus directed the parties to proceed with discovery, inform the court whether the cases should be consolidated, and whether a trial or summary judgment would be more appropriate.
Wednesday, July 25, 2018
In its opinion in Lewis v. Governor of Alabama, a unanimous panel of the Eleventh Circuit has reversed the dismissal of a claim that the Alabama Minimum Wage and Right to Work Act, preempting the City of Birmingham's ordinance raising the minimum wage to $10.10, violated the Equal Protection Clause.
After considering standing and Eleventh Amendment arguments, the panel's opinion, authored by Judge Charles Wilson, proceeded to the "heart of the matter" involving the district judge's dismissal of the plaintiffs' equal protection claims that the Minimum Wage Act purposely discriminates against Birmingham’s black citizens by denying them economic opportunities on account of their race; and the Act violates the political-process doctrine by transferring control from the majority-black Birmingham City Council to the majority-white Alabama Legislature.
The court found that plaintiffs stated a claim on the intentional discrimination claim, applying the factors of Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1997). The court found that there was definitely a racial impact and that the Act "bears more heavily on one race than another.”The court also considered "the rushed, reactionary, and racially polarized nature of the legislative process; and Alabama’s historical use of state power to deny local black majorities authority over economic decision-making." The court noted that the state's Act "responded directly to the legislative efforts of the majority-black Birmingham City Council, which represents more black citizens (and more black citizens living in poverty) than any other city in Alabama" and was "introduced by a white representative from Alabama’s least diverse area, with the help of fifty-two other white sponsors, and was objected to by all black members of the House and Senate. And it was accelerated through the legislative process in sixteen days with little or no opportunity for public comment or debate." The court concluded that these facts "plausibly imply discriminatory motivations were at play." Moreover, the court found that the district judge applied the incorrect legal standard when evaluating plaintiffs' complaint, a "clearest proof" standard "[r]ecklessly plucked from an unrelated line of precedent" and "contrary to decades of established equal protection jurisprudence."
However, the court affirmed the dismissal of plaintiffs' equal protection claim based on political process, despite the facts, because "to the extent that the plaintiffs allege that the minimum wage policy was 'racialized' because the 'Birmingham African-American community strongly favored' it, that argument clashes with the Supreme Court’s clear instructions" in Schuette v. BAMN (2014).
Thus, the case was remanded and can move forward on the "plausible claim that the Minimum Wage Act had the purpose and effect of depriving Birmingham’s black citizens equal economic opportunities on the basis of race, in violation of the Equal Protection Clause of the Fourteenth Amendment."
Monday, July 9, 2018
The Fourteenth Amendment was ratified on July 9, 1868.
Here's the text:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
[images National Archives via]
July 9, 2018 in Due Process (Substantive), Equal Protection, Fourteenth Amendment, Fundamental Rights, History, Privileges or Immunities: Fourteenth Amendment , Procedural Due Process, Race, Reconstruction Era Amendments | Permalink | Comments (0)
Wednesday, April 25, 2018
In a 60 page Memorandum Opinion in NAACP v. Trump, United States District Judge for the District of Columbia, Judge John Bates "vacated" the Department of Homeland Security's decision to rescind the DACA program, but stayed its order of vacatur for 90 days "to afford DHS an opportunity to better explain its view that DACA is unlawful."
Recall that in February Judge Nicholas Garaufis of the Eastern District of New York granted a preliminary injunction against the rescission of DACA and also recall that Judge Alsup of the Northern District of California issued a preliminary injunction in January which the government is appealing.
Judge Bates' decision rests on an application of the Administrative Procedure Act (APA), finding that the decision by DHS to rescind DACA, the Deferred Action for Childhood Arrivals program, covering 800,000 people in the United States who are not citizens but who have been residents since childhood., was "arbitrary and capricious" because the Department failed adequately to explain its conclusion that the program was unlawful. Judge Bates stated that "neither the meager legal reasoning nor the assessment of litigation risk provided by DHS to support its rescission decision is sufficient to sustain termination of the DACA program."
Judge Bates held that the "litigation risk" argument, which would would render the decision to rescind presumptively unreviewable, was not independent of the reality that the "rescission was a general enforcement policy predicated on DHS’s legal determination that the program was invalid when it was adopted." This legal determination is what raises the constitutional issue: DHS determined that DACA lacked constitutional authority. Although, as Judge Bates noted, "it seems that no court has yet passed judgment on DACA’s constitutionality."
Thus, Judge Bates gave DHS more time to make it arguments that DACA lacked constitutional (and statutory) authority to support its rescission decision, and also deferred ruling on the plaintiffs' constitutional challenges to the rescission as violating due process and equal protection.
Tuesday, April 24, 2018
The United States Supreme Court heard oral arguments in Abbott v. Perez, regarding the constitutionality under the Equal Protection Clause and the validity under the Voting Rights Act of the redistricting plan enacted by the Texas Legislature in 2013. Recall that in an extensive opinion in August 2017, the three judge court made detailed findings, one of which was that the Texas legislature engaged on intentional racial discrimination violating the Fourteenth Amendment.
Much of the argument centered on the acts of the Texas legislature in 2013 adopting maps which had previously been found invalid because of racial discrimination. Arguing for Texas, Scott Keller, the Texas Solicitor General, argued that the Texas legislature was entitled to a presumption of good faith and that the "taint" did not carry forward, and Edwin Kneedler, from the United States Solicitor General's Office, likewise stressed that the "taint" should not carry forward. Arguing for various challengers to the redistricting, Max Hicks and Allison Riggs, both stressed the standard of Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1997), contending that the taint does not end, and stressing the extensive findings by the three judge court.
The question of how long a discriminatory intent taint persists sometimes seemed as if it was a preview of the next oral argument, that in Hawai'i v. Trump.
Yet the oral arguments in Abbott v. Perez were also preoccupied with the "jurisdictional" question; Chief Justice Roberts at several points directed the parties to move to the merits. This jurisdictional question involves the status of the three judge court order and whether it is actually a reviewable order. Recall that the order was not a preliminary injunction, but instead the court directed the Texas Attorney General to provide a "written advisory within three business days stating whether the Legislature intends to take up redistricting in an effort to cure these violations and, if so, when the matter will be considered." Justice Breyer suggested that the operable "piece of paper" in the case was not a judgment or preliminary injunction, but only a direction to come to court.
While jurisdictional issues are always important to the Court, when the jurisdiction involves appeals as of right from three judge court decisions, the stakes are higher in terms of workload. As Justice Sotomayor asked, what distinguishes this case from the "millions of others - - - not millions, I'm exaggerating greatly - - - the hundreds of these . . . ."
April 24, 2018 in Courts and Judging, Elections and Voting, Equal Protection, Fourteenth Amendment, Oral Argument Analysis, Race, Recent Cases, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0)
Wednesday, April 4, 2018
The United States Commerce Department's announcement that the 2020 Decennial Census Questionnaire will include a citizenship question, which the census has not included since 1950, continues to provoke litigation. Recall that soon after the late March announcement, California v. Ross challenged the constitutionality of the change as violating the Constitution's requirement of “actual Enumeration” of all people in each state every ten years for the sole purpose of apportioning representatives among the states. U.S. Const. art. I, § 2, cl. 3, and amend. XIV, § 2.
An additional complaint filed in the Southern District of New York, New York v. United States Department of Commerce, raises the same constitutional objection on behalf of seventeen state plaintiffs, the District of Columbia, as well as six cities and the United States Conference of Mayors. The first count of the complaint is based on the "actual enumeration" requirement and avers that adding a citizenship question will "deter participation." The allegations in the complaint regarding the link between a citizenship demand and lower participation interestingly rely on the Census Bureau's own arguments and findings. The complaint alleges that consequences of lower participation is "an undercount" that will not reflect the accurate population of the plaintiffs, effecting their representation in the House of Representatives and the Electors. Two additional counts are based on the Administration Procedure Act, with the second count regarding the government's decision as contrary to the constitution and law including arguments regarding the "actual enumeration" requirement.
Additionally, the NAACP has filed a complaint in the District of Maryland, NAACP v. Bureau of the Census, with one count based on the "actual enumeration" requirement. The NAACP complaint stresses the risks of an undercount of racial and ethnic minorities, and opens thusly:
Article I, Section 2 of the United States Constitution imposes one of the few affirmative obligations on the federal government: to conduct an “actual Enumeration” of all residents every ten years. Despite this duty, the United States has undercounted people of color since the nation’s founding, starting with the decision to treat African American slaves as only three-fifths of a person. The Three-Fifths Clause appeared in the same constitutional provision that mandates a decennial census.
Tuesday, March 27, 2018
The Commerce Department has announced that the 2020 Decennial Census Questionnaire will include a citizenship question, which the census has not included since 1950. Commerce Secretary Wilbur Ross announced the change of policy in a letter which states the change is at the request of the Department of Justice (DOJ) in order to gather data regarding the "citizenship voting age population" (CVAP) to determine violations of section 2 of the Voting Rights Act (VRA).
The first count of the complaint in California v. Ross alleges a constitutional violation:
- The Constitution requires the “actual Enumeration” of all people in each state every ten years for the sole purpose of apportioning representatives among the states. U.S. Const. art. I, § 2, cl. 3, and amend. XIV, § 2.
- By including the citizenship question on the 2020 Census, Defendants are in violation of the “actual Enumeration” clause of the Constitution. Because the question will diminish the response rates of non-citizens and their citizen relatives, California, which has the largest immigrant population in the country, will be disproportionately affected by the census undercount. Inclusion of the question thus directly interferes with Defendants’ fulfillment of their constitutional responsibility, as delegated by Congress, to conduct an “actual Enumeration” of the U.S. population.
- This Violation harms the State of California and its residents, given that the State is entitled under the Constitution to a proportionate share of congressional representatives based on its total population.
In support of diminished response rates and the resultant undercount, the complaint includes in its allegations statements from the letter of Secretary Ross (as well as attaching the letter) in which Ross states that he
"carefully considered the argument that the reinstatement of the citizenship question on the decennial census would depress response rate. Because a lower response rate would lead to increased non—response follow—up costs and less accurate responses,this factor was an important consideration in the decision-making process. I find that the need for accurate citizenship data and the limited burden that the reinstatement of the citizenship question would impose outweigh fears about a potentially lower response rate."
In other words, a lower response rate is acceptable. Although the Ross letter continues that "limited empirical evidence exists about whether adding a citizenship question would decrease response rates materially." Exhibit 2 to the Complaint is a Memorandum from the Center for Survey Measurement (CSM), a division within the Census Bureau, which raised concerns in September 2017 regarding response rates in current conditions even before the citizenship question would be added.
The Constitution Accountability Center's David Gans has a rather extensive memo posted last week, The Cornerstone of Our Democracy: The Census Clause and the Constitutional Obligation to Count All Persons, which uses originalist and practical rationales to argue that a citizenship question on the census is unconstitutional.
[image: Norman Rockwell, The Census Taker]