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Posted on March 27 2018

September 25th Update: 

Second Circuit Court of Appeals:


..discovery in two consolidated district court cases. Upon due consideration, it is hereby ORDERED that the mandamus petitions are DENIED, and the stay of the district court’s order compelling the deposition of Acting Assistant Attorney General John Gore is LIFTED.

The 2ndCCOAs concluded the District Court did NOT abuse it’s power:

The district court applied controlling case law and made careful factual findings supporting its conclusion that the initial administrative record was incomplete and that limited extra-record discovery was warranted.

...not warranted here because [p]etitioners have not persuaded us that their ‘right to issuance of the writ is clear and indisputable.’ The district court’s discovery orders do not amount to “a judicial usurpation of power or a clear abuse of discretion.'”


Commerce Sec Ross

Census will include citizenship question


In February of 2018  the following Attorneys General of New York, Massachusetts, California, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Mississippi, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington, as well as the Governor of Colorado…sent a strongly worded letter to Commerce Secretary Wilbur Ross, voicing grave concern about the process and a reversal in previous Census questionnaire.

Highlights of their letter below:

…write to oppose the recent request by the Department of Justice to add a question on citizenship to the questionnaire for the 2020 decennial Census…” 

…”Constitution to determine “the whole number of persons in each state,”2 threaten our states’ fair representation in Congress, dilute our states’ role in the Electoral College, and deprive our states of their fair share of hundreds of billions of dollars in federal funds that are allocated in part on decennial Census data.

Indeed, as the Census Bureau has itself previously explained, “any effort to ascertain citizenship” in the decennial Census “will inevitably jeopardize the overall accuracy of the population count.”

Indeed, in a brief filed with the Supreme Court less than three years ago, four former Directors of the Census Bureau…“a one-by-one citizenship inquiry would invariably lead to a lower response rate to the Census in general,”

And would “seriously frustrate the Census Bureau’s ability to conduct the only count the Constitution expressly requires: determining the whole number of persons in each state in order to apportion House seats among the states.”

The former Directors explained that “[r]ecent experience demonstrates lowered participation in the Census and increased suspicion of government collection of information in general. Particular anxiety exists among non-citizens. There would be little incentive for non-citizens to offer to the government their actual status; the result [of inquiring about citizenship status] would be a reduced rate of response overall and an increase in inaccurate responses.”


Conclusion reads in part:


Fair, proportionate electoral representation in our democracy depends on valid Census data. The proposal to add a citizenship question to the 2020 Census questionnaire would defeat that goal.. (emphasis added)

“violate the Constitution, and undermine the purposes of the Voting Rights Act that the Justice Department claims it wants to protect.”

...”inclusion of a citizenship question would threaten the Census Bureau’s ability to conduct its constitutionally- mandated role, and would be arbitrary and capricious under the Administrative Procedure Act….” (emphasis added)....causing significant, direct harm to our states and residents – we urge you to reject the Justice Department’s request.” (emphasis added)


Link to the AGs letter to Sec Ross, 2020 US Census Letter from AGs


Senate Democrats Step in.. 


In kind, today Senator Feinstein issued a press release, which largely echos the previous arguments outlined in the February 2018 letter from the State AGs to Sec Ross and cc’d the Justice Department. In Senator Feinstein’s Press Release this particular paragraph stood out:


Given President Trump’s toxic rhetoric and aggressive policies toward immigrants, it’s clear his administration wants to include this question to discourage participation in immigrant communities. Individuals living in mixed-status households may be afraid to participate, fearing their responses would be used to target them or their families.” (emphasis added)


Link to Senator Feinstein’s March 27, 2018 Senator Feinstein 2020 Census Question


State of California v Sec Ross


AG Becerra lawsuit effectively argues that the inclusion of a “citizenship question” violates the mandated processes as prescribed by the Administrative Procurement Act. Which expressly states, prohibit of “arbitrary and capricious” actions:


“It is long settled that all persons residing in the United States — citizens and non-citizens alike — must be counted to fulfill the Constitution’s ‘actual Enumeration’ mandate“

We’re prepared to do what we must to protect California from a deficient census…”

”Including a citizenship question on the 2020 census is not just a bad idea — it is illegal.”


Candidly AG Becerra may have a solid a argument, given what is stated in the Constitution “actual enumeration”.

Link to AG Becerra Lawsuit here CA v Sec Ross 2020 Original Complaint Census


On May 4, 2018 the plaintiff’s filed a second amended compliant , which the plaintiffs cured the deficiencies indentified by The Court and Defendants. One of the remedies I noticed was the staggering numerosity and thr scope of the potential injury, particularly as it relates to privacy concerns:


“would likely exacerbate privacy concerns and lead to inaccurate responses from non-citizens worried about a government record of their immigration status

State of California and its counties, cities, and residents stand to lose if the citizenship question is included on the 2020 Census. According to 2016 figures from the Bureau’s American Community Survey (ACS), California has more foreign-born residents (over 10 million) and non-citizens (over 5 million) than any other state.]

And a recent study from the University of Southern California’s Center for the Study of Immigrant Integration found that California has the highest number of U.S.-born citizens who live with at least one undocumented family member.

Undercounting the sizeable number of Californian non-citizens and their citizens...State’s fair share of congressional seats and Electoral College electors and will cost Plaintiffs billions of dollars in federal funding over the next decade.

 citizenship question on the 2020 Census violates the Constitution’s “actual Enumeration” mandate and the Administrative Procedure Act’s (APA) prohibition against “arbitrary and capricious” agency action...(emphasis added)

Further, to avoid irreparable harm, Plaintiffs seek an injunction prohibiting the Bureau from including the citizenship question on the 2020 Census. 


Shortly there after Just a short whNew York Attorney General Schneiderman issued the following statement.

Link to Press Release here NY AG to lead MultiState Lawsuit re 2020 US Census


To Lead Multistate Lawsuit

To Preserve Fair And Accurate Census

In Case No: Case 1:18-cv-02921-JMF goes in to much greater detail and adds much stringer arguements, notwithstanding this Complaint includes 20+ states along with Commonwealths and numerous Cities and Counties. It’s essentially 2/3 of the States Against the Fed Government. The one glaring commonality that I and other continue to see, the Trump Administration either does not understand federal laws or the mandatory requirements/processes. 

This is a data point that I see over and over again, the APA has mandatory processes and every time, it’s as if the Trump Administration says: yea no, I’m a Mango Grandpa and I’m king, I can do what ever I want...the frightening part is it’s obvious that Trump surrounds himself with 3rd or 5th rate Public Policy staffers. Let be real, it’s not like Trump is attracting the best and brightest. When you go to work for the Trump Administration you are literally strapping on a suicide vest and with zero warning Trump will blow you the ___ up or at the minimum fire you via twitter. No that’s really a thing, he fired Sec of State Tillerson, EPA Administrator Pruitt, Sec of HHS Dr Price, NSA Gen McMasters all via twitter. Hell he fired White House Counsel Don McGahn via a interview with a paper.

At any rate in reading the NYAG’s multi coaltion Complaint, it’s a well written and well argued complaint:


the allocation of electors to the Electoral College, and the distribution of hundreds of billions of dollars in federal funds to states, local governments, and other grantees.

As Defendants’ own research shows, this decision will “inevitably jeopardize the overall accuracy of the population count” by significantly deterring participation in immigrant communities, because of concerns about how the federal government will use citizenship information. 

Defendants will not only fatally undermine the accuracy of the 2020 Census, but will jeopardize critical federal funding needed by states and localities to provide services and support for millions of residents.


On September 21, 2018, the SDNY Court issued an Order compelling discovery even though the Defedants requested the Court delay, to say the Judge found the Government’s arguments unpersuasive, might be an understatement (given FOIA materials showed Sec Ross lied to Congress), the Court was having none of the Government’s hogwash argument:


burdens that a deposition will impose on Secretary Ross and the scope of the existing record (including the fact that Secretary Ross has already testified before Congress about his decision to add the citizenship question), the Court limits the deposition to four hours in length, 

 The Court, however, rejects Defendants’ contention that the deposition “should be held only after all other discovery is concluded...

Court declines Defendants’ request to “stay its order for 14 days or until Defendants’ anticipated mandamus petition is resolved, whichever is later.” ] Putting aside the fact that Defendants do not even attempt to establish that the circumstances warranting a stay are present,

Documents show Sec Ross lied



A partial list of various Supreme Court cases re US Census:

New York v. Department of Commerce, 1989 – “undercount urban residents and minorities thereby denying New York residents their fair share of federal representation and funding”

U. S., Department of Commerce v. Montana, 1990 – “Montana lost one of its two congressional seats after 1990”

Franklin v. Massachusetts, 1992, 2000 & 2010 “citizens and non-citizens plus United States persons serving overseas in the military or working for the State Department”

U. S., Department of Commerce v. U. S. House of Representative, 1999 – “plaintiffs sought to force the Bush Administration and the Census Bureau to adjust the census count for undercount”

UTAH v. EVANS I & UTAH v. EVANS II 2000 & 2002 – “Utah challenged the use of “imputation” in the decennial census.”


Conversly Secretary Ross stated in a letter to California:

  • “Citizenship questions have been included on prior decennial censuses,”
  • “Between 1820 and 1950, almost every decennial census asked a question on citizenship in some form.”


In predictable fashion and perhaps in an attempt to buttress the rational of including the citizenship question, Sec Ross squarely put the responsibility  on the Department of Justice to “assist with enforcement of the Voting Rights Act.”   It’s a classic Trump-ian move, of political hot potato and once again lacking in due diligence. Suffice to say the legal battle has just begun. So I would definitely watch this issue, the consequences could be…interesting 


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