Kravitz et al v. United States Department of Commerce et al

Filing 84

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 12/28/2018. Associated Cases: 8:18-cv-01041-GJH, 8:18-cv-01570-GJH(jf3s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
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ROBYN KRAVITZ, et al.,
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Plaintiffs,

Case No.: GJH-18-1041
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v.

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UNITED STATES DEPARTMENT OF
COMMERCE, et al.,

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Defendants.
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LA UNIÓN DEL PUEBLO ENTERO, et al.,
Plaintiffs,

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v.

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WILBUR ROSS, et al.,

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Defendants.

Case No.: GJH-18-1570

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MEMORANDUM OPINION
Plaintiffs in two related cases, Kravitz et al. v. United States Dep’t of Commerce et al.,
18-1041 and LUPE et al. v. Ross et al., 18-1570, challenge the U.S. Census Bureau’s decision to
include a citizenship question on the 2020 Census. Plaintiffs contend that the addition of a

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citizenship question violates the Administrative Procedures Act (APA) and the Constitution.1
The LUPE Plaintiffs also allege that the question was added as part of a conspiracy to violate
their civil rights in violation of 42 U.S.C. § 1985. The Defendants moved for summary judgment
with respect to all claims asserted against them by both the Kravitz and LUPE Plaintiffs. ECF
Nos. 67 (18-1041) and 82 (18-1570).2 After a hearing, ECF No. 79 (18-1041), the Court entered
an order on December 19, 2018, denying Defendants’ Motions for Summary Judgment and
permitting the parties to present evidence outside the administrative record at trial, ECF No. 80
(18-1041). This Memorandum Opinion explains that December 19, 2018 order and addresses the
Kravitz Plaintiffs’ Motion for Leave to File Third Amended Complaint, ECF No. 71 (18-1041),
which is currently pending before the Court.

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The Kravitiz Individual named Plaintiffs are: Diana Alexander (Houston, Texas); Lauren Rachel Berman (Dallas,
Texas); Sarah Bryan (Edinburg, Texas); Alejandro Chavez (Phoenix Arizona); Virginia Garcia (Laredo, Texas);
Michael Kagan (Las Vegas, Nevada); Robyn Kravitz (District Heights, Maryland); Michael Kravitz (District
Heights, Maryland); Yamile Labori (West Palm Beach, Florida); Lazara Yoelvis Magadan (Miami, Florida);
Richard McCune (Nogales, Arizona); Jose Moreno (Somerton, Arizona); Catherine Nwosu (Langley Park,
Maryland); Nnabugwu Nwosu (Langley Park, Maryland); Linda Rivas (El Paso, Texas); T. Carter Ross (Hyattsville,
Maryland); Martha Sanchez (McAllen, Texas); Sonia Casarez Shafer (Pharr, Texas); and Joanne Wilson (Bowie,
Maryland). The LUPE Individual named Plaintiffs are: Juanita Valdez-Cox (Texas), Gene Wu (Texas), Mia
Gregerson (Washington), Cindy Ryu (Washington), Sharon Tomiko Santos (Washington), Raj Mukherji (New
Jersey), OJ Semans (South Dakota). The LUPE Organizational named Plaintiffs are: La Unión del Pueblo Entero
(LUPE), Texas Senate Hispanic Caucus, Texas House of Representatives Mexican American Legislative Caucus,
Southwest Voter Registration Education Project, California Latino Legislative Caucus, Coalition for Humane
Immigrant Rights, Dolores Huerta Foundation, Mi Familia Vota Education Fund, Somos Un Pueblo Unido, Georgia
Association of Latino Elected Officials, Labor Council for Latin American Advancement, Promise Arizona, El
Pueblo, Inc., Maryland Legislative Latino Caucus, Asian Americans Advancing Justice-Chicago, Asia Services in
Action, Inc., Minkwon Center for Community Action Inc., Chelsea Collaborative, Chicanos por La Causa, Latino
Community Fund of Washington, Arizona Legislative Caucus, California Asian Pacific Islander, Legislative
Caucus, California Legislative Black Caucus, Oca-Greater Houston, Friendly House, Four Directions, Inc.
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The named Defendants in the Kravitz case are the United States Department of Commerce, United States Census
Bureau, and the following officials sued in their official capacity: Wilbur L. Ross, Jr., Secretary of Commerce (the
“Secretary”), Karen Dunn Kelley, Under Secretary for Economic Affairs, Ron Jarmin, Director of the Census
Bureau, and Enrique Lamas, Deputy Director of the Census Bureau. The named Defendants in the LUPE case are
Wilbur L. Ross in his official capacity as Secretary of Commerce, Ron Jarmin in his official capacity as Director of
the Census Bureau, the United States Department of Commerce, and the United States Census Bureau.

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I.

BACKGROUND
The factual background, as alleged in Plaintiffs’ Complaints, is set forth in the

Memorandum Opinions issued supporting the Court’s Orders Denying Defendants’ Motions to
Dismiss. ECF No. 48 (18-1041); ECF No. 80 (18-1570). For efficiency sake, the Court in this
Opinion will only highlight facts supported by record evidence that bare on the question of
whether there are genuine disputes of material fact precluding summary judgment.
II.

STANDARD OF REVIEW
Summary judgment is proper if there are no issues of material fact and the moving party

is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
When ruling on a motion for summary judgment, “[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986).
Summary judgment is often an appropriate mechanism for deciding claims arising under
the APA. Audubon Naturalist Soc’y of The Cent. Atl. States, Inc. v. U.S. Dep’t of Transp., 524 F.
Supp. 2d 642, 660 (D. Md. 2007). However, summary judgment will be inappropriate where
resolution of a claim requires the fact-finder to make credibility determinations or inferences in
favor of the moving party. See Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645
(4th Cir. 2002) (courts must review summary judgment motions “without weighing the evidence
or assessing the witnesses’ credibility”); see also Buffalo Cent. Terminal v. United States, 886 F.
Supp. 1031, 1047–48 (W.D.N.Y. 1995) (denying summary judgment on an APA claim because
of credibility issues related to bad faith and pretext).

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III.

DISCUSSION
In its Motions for Summary Judgment, Defendants argued that Plaintiffs lack standing,

that the Court should not review evidence outside the administrative record to evaluate Plaintiffs’
APA claims, and that, even considering extra-record evidence, no genuine disputes of material
fact exist on the merits of Plaintiffs’ claims and Defendants are entitled to judgment as a matter
of law. Defendants also oppose the Kravitz Plaintiffs’ Motion for Leave to File a Third Amended
Complaint because they allege Plaintiffs acted with dilatory motive. Each of these arguments are
addressed below.
A. Standing
The Article III standing doctrine requires a plaintiff, as the party invoking the Court’s
jurisdiction, to establish three elements at trial: (1) a concrete and particularized injury-in-fact,
either actual or imminent; (2) a causal connection between the injury and defendants’ challenged
conduct, such that the injury is “fairly trace[able] to the challenged action of the defendant”; and
(3) a likelihood that the injury suffered will be redressed by a favorable decision. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560–61 (1992); see also Spokeo, Inc. v. Robbins, 136 S. Ct.
1540, 1547 (2016). At the summary judgment stage, Plaintiffs must “set forth by affidavit or
other evidence specific facts” that support a finding of standing, which the Court will view in the
light most favorable to the non-movant, but which may be challenged at trial. 504 U.S. at 561.
This Court previously concluded that Plaintiffs’ Complaints included sufficient factual
allegations for the Individual and Organizational Plaintiffs to meet the requirements of standing.
ECF No. 48 (18-1041) at 10–17; ECF No. 80 (18-1570) at 9–13. Now, the Individual Plaintiffs
have supported their factual allegations—that a citizenship question is substantially likely to lead
to a disproportionate undercount, harming Plaintiffs’ communities by reducing their political

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power and federal funding—with evidence. Similarly, the Organizational Plaintiffs have
introduced sufficient evidence, viewed in the light most favorable to them as the non-movant, to
support their standing allegations.
1. Concrete injury-in-fact
To establish standing’s injury-in-fact element, a plaintiff must show it “has sustained or is
immediately in danger of sustaining a direct injury” as a result of the challenged action. Spokeo,
136 S. Ct. at 1552 (quotation omitted). A plaintiff’s injury or threat of injury must be “concrete
and particularized,” not conjectural or hypothetical. Lujan, 504 U.S. at 560. If standing is based
upon an alleged future injury, the plaintiff must demonstrate a substantial risk the harm will
occur. See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013).
a. Injury to the Individual Plaintiffs
The Kravitiz Individual Plaintiffs point to evidence that a citizenship question will cause
a disproportional undercount, harming their communities because they live in areas with a higher
percentage of those likely to be undercounted. By a conservative estimate the citizenship
question will reduce response rates to the 2020 Census among households with a noncitizen by
5.1 percentage points, relative to households with only U.S. citizens. ECF No. 70 (18-1041) at
774. Further, there is evidence that a citizenship question will cause a decline in responses by
Hispanic households. Id. at 629, 630, 724–25, 745; see also ECF No. 70-6 (18-1041) at 36, 75–
76; ECF No. 70-1 (18-1041) at 8, 43. Additionally, Plaintiffs’ expert Dr. Nancy Mathiowetz
explains that a citizenship question is likely to lead to so-called roster omissions where, fearing
the consequences of providing sensitive information about noncitizen household members,
households respond to the Census questionnaire but conceal individual members. ECF No. 70-6
(18-1041) at 34, 73. Specifically, Dr. Mathiowetz writes: “[i]n light of the empirical evidence

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concerning rostering errors, it is reasonable to estimate that rostering errors motivated by the
addition of the citizenship question will be on the order of five percent and these rostering errors
will impact both households with noncitizens as well as households with Hispanic members.” Id.
at 73.3
Defendants’ argument that corrective measures will undisputedly remedy an undercount,
ECF No. 67-1 (18-1041) at 16–18, is unconvincing at this stage. These corrective measures
include non-response follow up (NRFU) with households that do not initially respond to the
Census, attempts to contact a nearby proxy (i.e. neighbor or building manager), and use of
administrative records to supplement data where households are nonresponsive. ECF No. 67-1
(18-1041) at 15–18. However, at the very least, it is disputed whether NRFU efforts will be
successful because “[t]hose refusing to self-respond due to the citizenship question are
particularly likely to refuse to respond in NRFU as well,” ECF No. 70 (18-1041) at 652, and
NRFU cannot remedy expected roster omissions, id. at 862. Individuals choosing not to respond
to the Census out of fear are not likely to be reassured by someone intrusively showing up at
their homes. See id. at 652.
Defendants next argument, that the undisputed facts show an alleged undercount would
not dilute Plaintiffs’ votes or affect their communities’ federal funding, is also flawed. To the
contrary, evidence exists that the Kravitz Individual Plaintiffs will be harmed by a differential

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The Defendants’ argument that the Court should disregard this estimate as unreliable is unconvincing. ECF No. 79
(18-1041) at 25. Dr. Mathiowetz’s conclusion is consistent with deposition testimony by Defendants’ expert Dr.
Abowd that a citizenship question will cause at least an incremental increase in the number of households that
respond to the census but do not provide a response for every member of the household. ECF No. 70 (18-1041) at
861. That consistency suggests that Dr. Mathiowetz’s estimate should not be dismissed as plainly unreliable.
Further, even if Dr. Mathiowetz’s five percent estimate were excluded as evidence, the data she considered to arrive
at this conclusion would not be. Thus, at the summary judgment stage, where evidence is viewed in the light most
favorable to the non-movant, Defendants cannot defeat the showing that roster omissions are likely to occur at a
potentially significant rate. To be sure, a dispute may exist about the magnitude of the problem, but that dispute can
only be resolved through the weighing of evidence—a step that the Court is precluded from taking at the summary
judgment stage.

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undercount through vote dilution and loss of federal funding. E.g., ECF No. 70-2 (18-1041) at
12; ECF No. 70-3 (18-1041) at 11. Specifically, Plaintiffs point to an expert opinion that a
differential undercount of noncitizens and Hispanics will lead to vote dilution from
malapportionment of congressional seats in California, Texas, and Arizona. ECF No. 70-2 (181041) at 11. Plaintiffs’ expert found that a disproportionate undercount will result in vote
dilution from intra-state redistricting because states use Census data to draw districts of equal
population. Id. at 13. Further, Plaintiffs’ experts opine that a disproportionate undercount will
result in a loss of Medicaid, transportation, and Title I funding to Plaintiffs’ communities. See
ECF No. 70-5 (18-1041) at 6, 12, 14–15; ECF No. 70-7 (18-1041) at 5–6, 11–14.
Because evidence exists to support the Kravitz Plaintiffs’ claim that a citizenship question
will lead to a disproportionate undercount, vote dilution, and loss of funding, Defendants in that
case are not entitled to summary judgment on standing’s injury-in-fact element. Further, the
LUPE Individual Plaintiffs point to essentially the same evidence discussed above to establish a
substantial risk of a disproportionate undercount, differential vote dilution, and funding losses.
See ECF No. 85 at 11–17. Thus, the LUPE Individual Plaintiffs have also demonstrated that
genuine disputes of material fact remain as to standing’s injury requirement.
b. Injury to the Organizational Plaintiffs
Although “the presence of one party with standing is sufficient to satisfy Article III’s
case-or-controversy requirement,” Rumsfeld v. Forum for Academic & Institutional Rights, Inc.,
547 U.S. 47, 52 n. 2 (2006), the LUPE Organizational Plaintiffs have also introduced evidence
that they or their members will sustain a direct injury because of a citizenship question, see e.g.,
ECF No. 82-2 (18-1570) ¶¶ 61–62 & n. 52; ECF No. 85-9 (18-1570) ¶¶ 4, 10 & 12–15. An
organizational plaintiff may establish standing’s injury-in-fact element under the representational

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standing doctrine by showing that its members have sustained an injury. Am. Humanist Ass’n v.
Maryland-Nat’l Capital Park & Planning Comm’n, 874 F.3d 195, 203–04 (4th Cir. 2017).
Alternatively, organizations may establish associational standing injuries by showing “(1)
frustration of its organizational mission; and (2) diversion of its resources” to mitigate the effects
of the challenged action. Smith v. Pac. Properties & Dev. Corp., 358 F.3d 1097, 1105 (9th Cir.
2004); see also Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982).
The Census Bureau relies on “Trusted Voices”—organizations that help the Bureau to
reach communities that are typically reluctant to respond to the Census. ECF No. 82-2 (18-1570)
¶¶ 61–62 & n. 62. Defendants’ expert Dr. Abowd confirmed that the Census Bureau will rely
more heavily on these Trusted Voices, including some of the LUPE Organizational Plaintiffs,
because a citizenship question will make traditionally hard-to-count populations even more
reluctant to respond to the Census. Id. Plaintiffs also present evidence that several Organizational
Plaintiffs have already begun or will imminently be forced to divert resources to help the
communities they serve understand that being included in the final census count is critical. See,
e.g., ECF No. 85-9 (18-1570) ¶¶ 4, 10 & 12–15; ECF No. 85-10 (18-1570) ¶¶ 3–4, 6–11; ECF
No. 85-11 (18-1570) ¶¶ 3, 11–16; ECF No. 85-12 (18-1570) ¶¶ 3–4, 8, 10–11 & 13–14; ECF No.
85-13 18 (18-1570) ¶¶ 3, 11–13; ECF No. 85-14 (18-1570) ¶¶ 3–4, 6–7, 9–12.
For example, according to the Executive Director of LUPE, the organization began its
Census outreach and advocacy at least a year early. ECF No. 85-9 ¶ 12. The organization’s
“mission is to build strong, healthy communities in the Texas Rio Grande Valley through
community organizing and civic engagement,” and it carries out this mission through “knowyour-rights discussions and membership meetings,” “issue-focused advocacy,” connecting “its
members to social services,” “Census outreach,” and “voter registration, education, and non-

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partisan get-out-the-vote campaigns.” Id. ¶ 5. According to the Executive Director, many LUPE
members will be harmed by a citizenship question because an undercount of immigrant
communities in Texas will diminish their members’ political power relative to others in the state
and country. Id. ¶ 6. Ultimately a disproportionate undercount would harm LUPE’s mission by
diluting the political power of the communities that LUPE seeks to organize and civically
engage. Id. Thus, in response to this threat, LUPE is diverting financial and staffing resources
from helping low-income families access social, economic, and legal services to enhancing its
Census outreach efforts. Id. ¶¶ 12–15.
This evidence—typical of the support provided by the Organizational Plaintiffs—is
sufficient, at this stage, to establish the injuries required under either the representational or
associational theories of standing. Accordingly, the Defendants are not entitled to summary
judgment of the Organizational Plaintiffs’ claims based on a failure to establish an injury-in-fact.
2. Causation and Redressability
Defendants argue that while any depressed response rates may be traceable to the current
political climate, they could not specifically be traced to the addition of a citizenship question.
ECF No. 67-1 (18-1041). But record evidence creates a dispute of fact as to this claim. ECF No.
70 (18-1041) at 862. Despite Defendants’ contention that any respondent who is reluctant to
answer a citizenship question will also be reluctant to respond to the Census if a citizenship
question is not included, the Census Bureau’s study shows that a citizenship question is likely to
further depress response rates among non-citizens and their relatives. ECF No. 70 (18-1041) at
738, 774.
Defendants have also argued that Plaintiffs’ alleged injuries are not traceable to a
citizenship question because for the injuries to occur, state governments, localities, and schools

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must “make their own independent decisions about funding” that leave Plaintiffs’ communities
with less than they would otherwise enjoy. ECF No. 79 (18-1041) at 35. This argument that
third-party decisions might prevent some of Plaintiffs’ injuries is unavailing. First, it is purely
speculative. The Defendants do not point to any record evidence that suggests third parties will
remedy the anticipated harms. Further, even if third parties could resolve Plaintiffs’ loss-offunding concerns, they cannot address the malapportionment of congressional seats that will
occur.
In sum, Plaintiffs have set forth sufficient evidence to support a finding of standing and
therefore defeat Defendants’ motion for summary judgment on this issue.
B. Enumeration Clause Claims4
Moving to Defendants’ request for summary judgment on Plaintiffs’ claims that the
addition of a citizenship question violates the Enumeration Clause challenges, the Court
considers whether evidence supports Plaintiffs’ position that a citizenship question would
unreasonably compromise the distributive accuracy of the census. Kravitz v. United States Dep’t
of Commerce, No. GJH-18-1041, 2018 WL 4005229, *13 (D. Md. August 22, 2018) (citing
Wisconsin v. City of New York, 517 U.S. 1, 19–20 (1996)). For the same reasons that issues of
material fact remain regarding Plaintiffs’ Article III standing, Plaintiffs’ Enumeration Clause
claims will survive summary judgment. As previously discussed, evidence exists to support the
conclusion that a citizenship question will lead to a disproportionate undercount, compromising
the distributive accuracy of the census. E.g., ECF No. 70 (18-1041) at 629, 630, 724, 745; see
also ECF No. 70-6 (18-1041) at 36, 75–76; ECF No. 70-1 (18-1041) ¶ 18, 85.

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Because there is substantial overlap between the arguments and evidence presented by the Kravitz and LUPE
Plaintiffs in support of their Enumeration Clause and APA claims, the Court treats Plaintiffs arguments jointly in
Section B and C and cites to the Kravitz Plaintiffs’ docket entries.

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Defendants argue that even to the extent a differential undercount will result, this
inaccurate enumeration will not unreasonably compromise the Census’s distributive accuracy.
However, this argument is unconvincing because Plaintiffs have introduced evidence that the
citizenship question does not bear “a reasonable relationship to the accomplishment of an actual
enumeration of the population.” Wisconsin v. City of New York, 517 U.S. 1, 19 (1996). Evidence
supports a finding that there is no genuine need for the data the DOJ purportedly seeks, ECF No.
70-4 (18-1041) at 5–6, and that the Census Bureau believes a citizenship question will not only
have a “negative impact on voluntary cooperation with the census” but also will result in “poorer
quality” data for DOJ’s purposes “than would be available through administrative records,” ECF
No. 70 (18-1041) at 609.
In light of Plaintiffs’ evidence that a citizenship question will impact the distributive
accuracy of the final enumeration for no reasonable purpose, there is a material dispute of fact
regarding whether the decision to add a citizenship question violates the Enumeration Clause,
and Defendants are not entitled to summary judgment on these claims.
C. APA Claims5
As a preliminary matter, Defendants argue that the Court may not consider evidence
outside the administrative record when reviewing Plaintiffs’ APA claims even though the Court
previously ruled that Plaintiffs were entitled to limited extra-record discovery. ECF No. 48 (181041) at 33; ECF No. 80 (18-1570) at 24. Ultimately, it is not necessary for the Court to decide
whether extra-record evidence is admissible in order to determine if summary judgment is
appropriate because the Administrative Record alone creates genuine disputes of material fact as
to whether the decision to include the citizenship question was arbitrary and capricious.

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The CM/ECF citations in this section are to docket entries in the Kravitz (18-1041) case and are all references to
the Administrative Record.

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Nonetheless, as the Court ordered on December 19, 2018, the parties will be permitted to present
evidence outside of the administrative record at trial, and the Defendants will be permitted to
argue at the close of trial that such evidence should not be considered in the Court’s final
decision. ECF No. 80 (18-1041).
Turning to the merits of Plaintiffs’ APA claims, Plaintiffs argue that the Defendants’
decision was arbitrary and capricious or otherwise not lawful in violation of § 706(2)(A) and
made “without observance of procedure required by law” in violation of § 706(2)(D). Under 5
U.S.C § 706(2)(A) of the APA, final agency action that is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law” must be held unlawful and set aside. 5
U.S.C. § 706(a). Agency action is arbitrary and capricious “if the agency has relied on factors
which Congress has not intended it to consider, entirely failed to consider an important aspect of
the problem, offered an explanation for its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to a difference in view or the product of
agency expertise.” Motor Vehicle Manufacturers Association v. State Farm, 463 U.S. 29, 43
(1983).
The Administrative Record suggests that Secretary Ross’s stated reasoning and factual
assumptions ran counter to all the Census Bureau’s unvarnished analysis and expert advice and
was based instead on manufactured support created to mask an impermissible, predetermined
political motivation. Compare, for example, the Secretary’s inaccurate conclusion that “no one
provided evidence that there are residents who would respond accurately to a decennial census
that did not contain a citizenship question but would not respond if it did,” ECF No. 70 (181041) at 689, with the Census Bureau’s unwavering position that a citizenship question would
lead to a decline in self-response among noncitizen households, id. at 629–30. The contradictions

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between the evidence before the Secretary and his proffered explanation do not end there.
Compare id. at 689 (Secretary concluding that “Alternative D”—a proposal he designed to
combine a citizenship question addition with administrative records—would maximize accuracy
and “the Census Bureau’s ability to match the decennial census responses with administrative
records”) with id. at 652–53 (Census Bureau’s analysis that Alternative D would reduce Bureau’s
ability to match data with administrative records and would cause further inaccuracies);
Compare id. at 686 (Secretary’s assertion that the citizenship question had been “well tested”
based on its inclusion in the American Community Survey (ACS)) with id. at 630–31 (the
Census Bureau’s conclusion that a significant percent of ACS respondents may be providing
inaccurate answers to the ACS citizenship question). Taken together, this Administrative Record
evidence suggests the Secretary’s decision was not “the product of agency expertise.” State
Farm, 463 U.S. at 43.
Administrative Record evidence also supports a finding that the agency “relied on factors
which Congress has not intended it to consider.” Id. Specifically, the Record suggests that the
Secretary relied on improper political influence as opposed to views on how best to obtain an
accurate enumeration. Months before the Secretary solicited DOJ to request citizenship data and
the DOJ ultimately submitted that request, administration officials appear to have been in
communication about adding a citizenship question for politically-motivated reasons different
from those reflected in the Secretary’s official memoranda. ECF No. 70 (18-1041) at 500–02,
582, 586–87. On March 10, 2017, Director of Policy and Strategic Planning Earl Comstock sent
Secretary Ross an email with the subject line “Your Question on the Census” that alerted Ross
that “all people (citizens and noncitizens)” are counted in the Census and included a 2010
opinion article titled “the Pitfalls of Counting Illegal Immigrants.” Id. at 500–01. Comstock

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highlighted for Ross that “[n]o major government survey, including the decennial census . . .
asks Americans about their citizenship status” and that “[m]any more foreign-born residents
were counted in 2000 than was expected based on annual estimates produced by the bureau.” Id.
This email, along with other evidence, at least raises a genuine dispute regarding whether the
Secretary was interested in a citizenship question to depress response rates by non-citizens rather
than to obtain an accurate enumeration of the population or even to support a DOJ request to
assist in enforcement of the Voting Rights Act. Secretary Ross’s communications with Kris
Kobach about adding a citizenship question further indicates that the Secretary’s true motive
may have been unrelated to the DOJ’s request. Id. at 582, 586–87. Specifically, Mr. Kobach
advised the Secretary to address the “problem” that “aliens who do not actually ‘reside’ in the
United States are still counted for congressional apportionment purposes.” Id. at 587.6 Viewing
this evidence in the light most favorable to the Plaintiff, Mr. Kobach was suggesting that a
citizenship question be added to reduce the political power of individuals who are intended to be
counted in an accurate enumeration. The Secretary launched his campaign to add a citizenship
question and to find a permissible reason for such action around the same time that he
communicated with Mr. Kobach about the Census. ECF No. 70 (18-1041) at 586–87, 694
Defendants point to the DOJ’s request, which Secretary Ross solicited, as Administrative
Record evidence that purportedly favors the Secretary’s decision. ECF No. 67-1 (18-1041) at
25–26. However, there is, at the very least, a dispute as to whether any evidence supports the
notion that a citizenship question would be an effective method for collecting the data that DOJ
requested. Further, even if the Court ultimately considers the DOJ request to be support for the
Secretary’s decision, at this stage, it only shows that Plaintiffs and Defendants have warring

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Notably, the subject line of Mr. Kobach’s email to the Secretary reads “Follow up on our phone call,” suggesting
prior communication on this topic. ECF No. 70 (18-1041) at 587.

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evidence that support different conclusions about whether the Secretary’s decision and reasoning
was permissible.
To support a finding that Defendants’ decision violated §706(2)(A) as “otherwise not in
accordance with law,” Plaintiffs also point to evidence that the citizenship question was added
despite no new circumstance necessitating the Secretary’s decision contrary to 13 U.S.C. §
141(f)’s congressional reporting instructions. Per § 141(f)(2), the Secretary of Commerce must
submit to Congress “not later than 2 years before the appropriate census date, a report containing
the Secretary's determination of the questions proposed to be included in such census.” §
141(f)(2). If, after submission of this report, the Secretary “finds new circumstances exist which
necessitate that the subjects, types of information, or questions contained in reports” be modified,
he or she must submit a new report describing these modifications. § 141(f)(3). Although
congressional reporting requirements such as § 141(f) are typically not judicially reviewable, see
e.g., Guerrero v. Clinton, 157 F.3d 1190, 1196 (9th Cir. 1998), the Court may consider the lack
of new circumstances necessitating a modification as evidence that the agency’s decision was
arbitrary and capricious. While a failure to comply with § 141(f) may not on its own trigger legal
consequences, it may serve as circumstantial evidence that the Secretary’s decision was not
legitimate.7

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Plaintiffs also argue that Defendants’ decision to add a citizenship question was made “without observation of
procedure required by the law” in violation of § 706(2)(D) because the Secretary did not adhere to Office of
Management and Budget guidelines and the Census Bureau’s testing and statistical standards. ECF No. 69 at 45–51.
Just as noncompliance with congressional reporting requirements does not alone trigger an APA violation, violations
of OMB statistical guidelines are not enough to demonstrate a §706(2)(D) violation. However, as with evidence of
the Secretary’s failure to comply with congressional reporting instructions, evidence that the Secretary did not meet
OMB or Census Bureau standards provides further support for Plaintiffs broader claim that the Secretary’s final
action was arbitrary and capricious.

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Ultimately, resolution of Plaintiffs’ APA claims, requires a factfinder to weigh opposing
evidence in the Administrative Record, meaning summary judgment is not proper. Given the
foregoing, Plaintiffs’ APA claims will proceed to trial.
D. LUPE Plaintiffs’ Equal Protection Claim8
For the LUPE Plaintiffs to establish their Equal Protection claim, they must prove that
Defendants’ decision was motivated by discriminatory animus and its application has an adverse
effect on a protected group. Arlington Heights, 429 U.S. 252, 264–65 (1977). The Fourth Circuit
instructs that we look to the following non-exclusive list of probative factors to determine
whether discriminatory intent motivated defendants:
(1) evidence of a “consistent pattern” of actions by the decisionmaking body
disparately impacting members of a particular class of persons; (2) historical
background of the decision, which may take into account any history of
discrimination by the decisionmaking body or the jurisdiction it represents; (3) the
specific sequence of events leading up to the particular decision being challenged,
including any significant departures from normal procedures; and (4) contemporary
statements by decisionmakers on the record or in minutes of their meetings.
Central Radio Company v. City of Norfolk, 811 F.3d 625, 635 (4th Cir. 2016) (quoting Sylvia
Development v. Calvert County, 48 F.3d 810, 819 (4th Cir.1995)). As the Court noted when
denying Defendants’ Motion to Dismiss this claim, the Administrative Record supports
Plaintiffs’ allegations that the decisionmaking body engaged in “significant departures from
normal procedures.” The Court will not repeat that discussion here, but points the parties to that
previous ruling, LUPE v. Ross, No. GJH-18-1570, 2018 WL 5885528, at *8 (D. Md. Nov. 9,
2018). Similarly, that opinion discusses the “contemporary statements by decisionmakers” that
support a finding of discriminatory animus. Id.9

8

The CM/ECF citations in this section refer to docket entries in the LUPE, 18-1570 case.
Although Defendants dispute the relevance of statements made by President Trump and other administration
officials, they do not dispute the content of those statements. See ECF No. 89 (18-1570) at 12–13.
9

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Although Defendants seek to narrow the Court’s attention to only those statements made
by the Secretary as the so-called “sole-decisionmaker,” that approach ignores the evidence
showing that Secretary Ross did not act alone. In fact, Defendants themselves emphasize that
Secretary Ross received advice, requests, and recommendations from various administration
officials and from Mr. Kobach, labeling this the “normal give-and-take of the agency process.”
ECF No. 82-1 (18-1570) at 24. It is also non-sensical to assume as a matter of law that public
statements alleged to have been made by the President regarding immigration had no bearing on
the Secretary’s decision.
Defendants also argue unsuccessfully that “Plaintiffs fail to identify a protected class
against which the Secretary allegedly discriminated.” LUPE, ECF No. 89 (18-1570) at 11 n. 3.
This argument fails because Plaintiffs point to evidence that inclusion of a citizenship question in
the decennial Census is motivated by racial animus towards Hispanics and non-white
immigrants. Specifically, as previously described in Section III.A.1, the evidence before the
Secretary demonstrated that a citizenship question would depress response rates by Hispanic
households, and as detailed in the Court’s earlier opinion, 2018 WL 5885528 at *9,
contemporary statements by those advising the Secretary support a finding of animus towards
non-white immigrants.
Ultimately, evidence supporting the LUPE Plaintiffs’ Equal Protection claim creates a
genuine dispute of material fact, and Defendants are not entitled to summary judgment on this
count.
E. LUPE Plaintiffs’ Conspiracy to Violate Civil Rights Claim
An actionable conspiracy under 42 U.S.C. § 1985(3) requires “an agreement or a
‘meeting of the minds’ by defendants to violate the claimant’s constitutional rights.” Simmons v.

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Poe, 47 F.3d 1370, 1377 (4th Cir. 1995). This Court previously found that the LUPE Plaintiffs
had sufficiently pled a § 1985(3) claim, 2018 WL 5885528 at *11, based on factual allegations in
the Complaint. These same factual allegations have now been supported with evidence.
As previously discussed, Mr. Kobach’s interest in a citizenship question stemmed from
his view that states like California have had “congressional seats inflated by counting illegal
aliens.” ECF No. 85-5 (18-1570) at 45; see also Administrative Record (AR) 763–64.10 Drawing
all reasonable inferences in Plaintiffs’ favor, Mr. Kobach was motivated to reduce immigrant
response rates to achieve the unconstitutional goal of reducing their political power. Mr. Kobach
pitched the citizenship question idea to administration officials beginning around January 2017.
Id.
In light of the evidence that the DOJ’s voting-rights-act rationale was pretextual, the
clearest indications about the Secretary’s actual purpose come from the exchanges between Mr.
Kobach and administration officials, Mr. Comstock’s email response to the Secretary’s question
about the Census, and the contemporary statements by decisionmakers discussed at the Motion to
Dismiss stage. Taken together, this evidence suggests that the Secretary’s true purpose for
adding a citizenship question was to depress noncitizen response rates. During the same period
that Mr. Kobach pushed for a citizenship question, Earl Comstock responded to the Secretary’s
question about the Census with his email highlighting that undocumented residents are counted
for Congressional apportionment and pointing the Secretary to a blog about the “pitfalls of
counting illegal immigrants.” ECF No. 85-7 (18-1570) at 13–15.
Plaintiffs’ demonstration of consistency between the Secretary’s actual purpose and Mr.
Kobach’s articulated intent is not a mere showing of parallel conduct. Instead, the record allows
10

The Administrative Record was filed in the Kravitz case (18-1041), ECF Nos. 25 &
26, and incorporated into the LUPE Plaintiffs’ Opposition, ECF No. 85 (18-1570) at 11 n. 6.

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for an inference that Mr. Kobach and administration officials achieved a “meeting of the minds”
because it demonstrates coordination between Mr. Kobach, those advising the Secretary, and the
Secretary. Over a period of months, Mr. Kobach spoke with Steve Bannon, President Trump,
Secretary Ross, and Attorney General Sessions to persuade them to add a citizenship question for
the express purpose of reducing the number of immigrant respondents. ECF No. 85-5 (18-1570)
at 45, 52–53; see also AR 763–64. Secretary Ross and Mr. Kobach spoke at the direction of Mr.
Bannon before the Secretary generated the DOJ voting-rights-act rationale. ECF No. 85-5 (181570) at 53. After the Secretary communicated with Mr. Kobach about adding a citizenship
question, he pursued creating the DOJ voting-rights-act rationale and worked to find someone at
DOJ willing to make the request for a citizenship question. Id. at 53, 58, 61, 79, 154–157; ECF
No. 85-7 at 12, 18, 19; see also AR 11646–49, 11634–45, 11193, 12476, 1277–85 1525–27,
2651–52.
In sum, genuine disputes of material fact remain as to whether the requisite meeting of
minds existed between Mr. Kobach and administration officials, and the LUPE Plaintiffs § 1985
claim may proceed to trial.
F. Kravitz Plaintiffs’ Motion for Leave to File Third Amended Complaint
The Kravitz Plaintiffs wish to amend their Complaint to add an Equal Protection claim,
which is substantively identical to the Equal Protection claim alleged by the LUPE Plaintiffs.
ECF No. 71 (18-1041). Federal Rule of Civil Procedure 15(a) governs amendments to pleadings
before trial. At this stage of the litigation, the parties may amend their pleadings “only with the
opposing party's written consent or the court's leave.” Fed. R. Civ. P. 15(a)(2). Courts are to
“freely give leave when justice so requires.” Id. Under this directive, a court should grant leave
to amend unless a reason exists to deny leave, such as “undue delay, bad faith or dilatory motive

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on the part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or]
futility of amendment . . .” Foman v. Davis, 371 U.S. 178, 182 (1962).
Defendants do not argue (nor could they) that Plaintiffs’ proposed amendment would
cause undue prejudice or that the amendment would be futile—the Kravitz and LUPE cases have
now been consolidated, a trial date is already set at which Defendants will defend against an
identical Equal Protection claim, and the Court has already denied a Motion to Dismiss based on
substantively identical allegations. However, Defendants oppose Plaintiffs’ Motion for Leave
because they claim that Plaintiffs acted with a dilatory motive when they waited until the Court
had ruled on the Defendants’ Motion to Dismiss the LUPE Plaintiffs’ Equal Protection claim
before requesting to amend their Complaint. ECF No. 77 (18-1041). But rather than achieving a
goal of delay, the Kravitz Plaintiffs’ decision to wait on the Court’s earlier ruling in the LUPE
case, avoided consuming the parties’ and the Court’s resources with duplicative motions. Both
parties seek efficient resolution of the Plaintiffs’ claims, and the addition of an Equal Protection
claim to the Kravitz case will not cause any delay. As a result, Plaintiffs’ Motion for Leave to
File Third Amended Complaint, ECF No. 71, will be granted.
IV.

CONCLUSION
For the foregoing reasons, the Court denied Defendants’ Motions for Summary Judgment

in a separate order issued on December 19, 2018. A separate order will issue granting the Kravitz
Plaintiffs’ Motion for Leave to Amend.

Dated: December 28, 2018

/s/
GEORGE J. HAZEL
United States District Judge

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