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Judicial Watch • Dept Commerce v NY SCOTUS Amicus 2020 Census 18-966

Dept Commerce v NY SCOTUS Amicus 2020 Census 18-966

Dept Commerce v NY SCOTUS Amicus 2020 Census 18-966

Page 1: Dept Commerce v NY SCOTUS Amicus 2020 Census 18-966

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Date Created:February 13, 2019

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No. 18-966 THE
g,upreme Qtourt tbe Wniteb g,tates
UNITED STATES DEPARTMENT OMMERCE AL.,
Petitioner,
STATE NEW ORK, AL.,
Respondents. Petition for Writ Certiorari the United
States Court Appeals for the Second Circuit
BRIEF AMICI CURIAE JUDICIAL
WATCH, INC. AND ALLIED EDUCATIONAL
FOUNDATION SUPPORT PETITIONER
Robert Popper
Counsel Record
Eric Lee
JUDICIAL WATCH, INC.
425 Third Street
Washington, 20024
(202) 646-5172
rpopper@judicialwatch.org
Counsel for Amici Curiae
Dated: February 11, 2019
LEGAL PRINTERS LLC, Washington 202-747-2400 legalprinters.com
TABLE CONTENTS
TABLE AUTHORITIES ......................................
INTERESTS THE AMICI CURIAE .....................
SUMMARY ARGUMENT .....................................
ARGUMENT ...............................................................
Citizenship Data Critical the Efforts Private Parties Like Judicial Watch Enforce Section the NVRA ....................
II. Citizenship Question the Decennial
Census Would Improve the Quality
Available Data ..................................................
III.
The Court Should Grant the Petition and Rule Time Allow the Citizenship Question Included the 2020 Census .................
CONCLUSION ..........................................................
TABLE AUTHORITIES
Cases
Am. Civ. Rights Union Martinez-Rivera,
166 Supp. 779 (W.D. Tex. 2015) ...............
Bartlett Strickland, 556 U.S. (2009) ....................
Bellitto Snipes,
No. 16-cv-61474-BLOOMNalle,
2018 U.S. Dist. LEXIS 103617
(S.D. Fla. March 30, 2018) ...............................
Judicial Watch, Inc. Grimes,
No. 3:17-cv-94 (E.D. Ky. July 2018) .......
Judicial Watch, Inc. Husted,
No. 2:12-cv-792-EAS-TPK
(S.D. Oh. Jan. 13, 2014) .....................................
Judicial Watch, Inc. King,
993 Supp. 919 (S.D. Ind. 2012) .............
Judicial Watch, Inc. Logan,
No. CV-17-8948-R,
2018 U.S. Dist. LEXIS 151333
(C.D. Cal. Sep. 2018) ..........................
Pender County Bartlett,
361 N.C. 491 (N.C. 2007) ....................................
United States America Eastpointe,
No. l:06cv86 (E.D. Mich. Jan. 10, 2017) ............
111
U.S. State Maine, No. 1:06-cv-86-JAW
(D. Me. July 28, 2006) .................................... 6-7
Voter Integrity Project NC, Inc.
Wake Cnty. Ed. Elections,
301 Supp. 612 (E.D.N.C. 2017) .................
Federal Statutes U.S.C. 10301 ........................................................ U.S.C. 10503 ........................................................ U.S.C. 20507(a)(3) ........................................... 3-4 U.S.C. 20507(a)(4) ............................................... U.S.C. 20508(a)(3) .............................................. U.S.C. 20510(b) .................................................... C.F.R. 9428.7 ......................................................
Other Authorities
2020 Census Operational Plan 135 (Dec. 2018)
(available https://www2.census.gov/
programs-surveys/decennial/2020/programmanagement/planning-docs/2020-operplan4.pdf) ..........................................................
Press Release, Judicial Watch,
Judicial Watch Warns California Clean
Voter Registration Lists Face Federal
Lawsuit (Aug. 2017) (available
https ://www .judicialwatch.org/pressroom/press-releases/judicial-watch-warnscalifornia -clean -voter-registration -lists-facefederal- lawsuit/) ..................................................
Press Release, Judicial Watch,
Judicial Watch Warns States Clean
Voter Registration Lists Face Federal
Lawsuit (Apr. 11, 2017) (available
https ://www .judicialwatch.org/pressroom/press-releases/judicial-watch-warns-11sta tes-clean -voter-registration -lists-facefederal-lawsuit/) ..................................................
Press Release, U.S. Census Bureau,
Nation Achieves Percent Final Mail
Participation 2010 Census (Oct. 21, 2010)
(available https://www.census.gov/
newsroom/releases/archives/201 O_census/
cb10-cn81.html) ................................................
Robert Popper, Testimony before the
Presidential Advisory Commission Election
Integrity (Sep. 12, 2017), available
https://www.whitehouse.gov/sites/w hitehouse.
gov /files/docs/pacei-written -statement-robertp~pm ...........................................................5
Top Questions About the Survey,
U.S. Census Bureau,
https ://www.census.gov/programssurveys/acs/about/top-questions-about-thesurvey .html .......................................................
U.S. Census Bureau,
Understanding
and
Using
American
Community Survey Data: What All Data Users
Need Know (2018),
https://www.census.gov/content/dam/Census/lib
rary /publica tions/2018/acs/acs_general_handbo
ok_2018.pdf .......................................................
INTERESTS THE AMICI CURIAE
Judicial Watch, Inc. (Judicial Watch) nonpartisan, public interest organization headquartered Washington, D.C. Founded 1994, Judicial
Watch seeks promote accountability, transparency
and integrity government, and fidelity the rule law. furtherance these goals, Judicial Watch committed the enforcement the National
Voter Registration Act (NVRA). Judicial Watch
regularly files amicus curiae briefs and lawsuits
related its enforcement. See, e.g., Judicial Watch,
Inc. Logan, No. CV-17-8948-R, 2018 U.S. Dist.
LEXIS 151333 (C.D. Cal. Sep. 2018) (NVRA
Section lawsuit against the State California);
Judicial Watch, Inc. Grimes, No. 3:17-cv-94, 2018
(E.D. Ky. Nov. 14, 2017) (NVRA Section lawsuit
against the State Kentucky); Judicial Watch, Inc. King, 993 Supp. 919 (S.D. Ind. 2012) (NVRA
Section lawsuit against the State Indiana).
The Allied Educational Foundation (AEF)
501(c)(3) nonprofit charitable and educational
foundation based Englewood, New Jersey.
Founded 1964, AEF dedicated promoting
education diverse areas study. AEF regularly
files amicus curiae briefs means advance its
Judicial Watch states that counsel for party this case
authored this brief whole part; and person entity,
other than amici and its counsel, made monetary contribution
intended fund the preparation and submission this brief.
Judicial Watch sought and obtained the consent all parties
the filing this amicus brief more than ten days prior the
date was due.
purpose and has appeared amicus curiae
this Court number occasions.
Together, amici share interest the
enforcement the NVRA.
Amici believe that
including citizenship question the decennial
census would materially assist the enforcement
Section the NVRA. Amici urge this Court
grant the petition for writ certiorari before
judgment.
SUMMARY ARGUMENT
Citizenship data critical the enforcement Section the National Voter Registration Act
1993 (NVRA).
The first step investigating
compliance with Section compare the number voter registrations that jurisdiction admits
with the number citizens that jurisdiction who
are old enough vote.
Where the resulting
registration rate high-and certainly where
exceeds 100%-there good basis for believing
that the voter rolls contain significant number
outdated ineligible registrations. The relevance
this approach has been acknowledged private
litigants, the Department Justice, and
federal courts.
Adding citizenship question the decennial
census would generate massive amount new
data concerning the numbers citizens and
noncitizens U.S. states and counties. quibble
about potential limitations the data that would
collected miss the point. cannot the case
that are somehow better off with less
information. The mountain new data generated the decennial census question will assist private
litigants and the Department Justice their
efforts enforce the NVRA. Indeed, this data will
overcome limitations identified federal court
concerning the current data citizenship from the
American Community Survey.
Amici respectfully submit that, unless the
Court acts now, the enforcement Section the
NVRA will materially impaired for the next ten
years.
ARGUMENT
Citizenship Data Critical the Efforts Private Parties Like Judicial Watch
Enforce Section the NVRA.
Amicus Judicial Watch interprets its core
mission promoting accountability, transparency
and integrity government and fidelity the rule law include the pursuit election integrity.
Toward this end, Judicial Watch has active
program enforce the voter list maintenance
provisions the NVRA.
Section the NVRA requires each state
conduct general program that makes reasonable
effort remove the names ineligible voters from
the official lists eligible voters reason ... the
death the registrant; change the
residence the registrant. U.S.C. 20507(a)(4). also provides for removals the request the
registrant, under state law concerning
disqualifying criminal conviction mental
incapacity. Id., 20507(a)(3). Private parties may
sue enforce the NVRA. Id., 20510(b).
Judicial Watchs efforts enforce Section
begin anew June each odd-numbered year,
when the U.S. Election Assistance Commission
(EAC) required law release report
regarding state voter registration practices.
U.S.C. 20508(a)(3). The EAC report based
state-by-state survey voter registration practices
and statistics. Federal regulations require states
provide information responsive this survey.
C.F.R. 9428.7.
Judicial Watch compares the EACs survey
results data from the American Community
Survey (ACS) determine whether states
counties have excessive registration rates, which
may indicate that their voter rolls contain significant
numbers ineligible registrants. Judicial Watch
particularly interested identifying jurisdictions
that have more voter registrations than resident
citizens voting age-in other words, registration
rates exceeding 100% those who lawfully could
register and vote. Although any registration rate
higher than national historical averages
noteworthy, registration rates greater than 100% are
intuitively understood excessive, courts,
the public, and even states and counties, which
hesitate defend them. such study important compare
registration
rates
the
citizen voting-age
population (CVAP).
Relying voting-age
population (VAP) instead, without qualifying for
citizenship, inadequate. VAP includes noncitizens
over the age who cannot lawfully register
vote.
Because VAP larger denominator,
comparing the number voter registrations VAP
makes high registration rates appear lower, and
hence more reasonable, than they are. both 2015 and 2017, following the release
the EACs biennial report, Judicial Watch hired
professional demographer compare the number
registrations the CVAP every county and state
covered the NVRA for which registration data
was available.2 The results these studies strongly
suggest that there need for better enforcement
Section the NVRA. Judicial Watchs last study 2017, for example, revealed that 462 U.S.
counties-about one out every six counties where
data was available-had voter registration rates
exceeding 100% the age-eligible citizenry.
After reviewing the results these studies,
Judicial Watch sends letters states and counties
notifying them potential violations Section
and seeking further information about their list
maintenance practices. Following their 2017 study,
Judicial Watch sent such notice letters states Judicial Watch plans repeat this study when the new EAC
report release June 2019. Robert Popper, Testimony before the Presidential Advisory
Commission Election Integrity (Sep. 12, 2017), available https://www.whitehouse.gov/sites/whitehouse.govlfiles/docs/p
acei-written-statement-robert-popper.pdf.
containing 114 counties with registration rates
exceeding 100%.4 Where responses such letters
are deemed inadequate, Judicial Watch will
commence private lawsuit enforce Section
The citizen registration rate constitutes
important fact any lawsuit. Judicial Watchs
complaints typically include allegations that voter
registrations exceed CVAP. See Complaint
26, Judicial Watch, Inc. Logan, No. CV-17-8948-R,
(C.D. Cal. Dec. 13, 2017), ECF No. (according
data provided and published the EAC, Los
Angeles County has registration rate 112% its
adult citizen population.); id., (The entire
State California has registration rate about
101 its age-eligible citizenry.); Complaint
1[16-17, Judicial Watch, Inc. Grimes, No. 3:17-cv94 (E.D. Ky. Nov. 14, 2017), ECF No. (the number voter registrations exceeds the number ageeligible citizens Kentucky counties, 40%
all Kentucky counties). The Department Justice
makes similar allegations its own Section
complaints. See Complaint 17, U.S. State Maine, Case 1:06-cv-86-JAW (D. Me. July 28,
Press Release, Judicial Watch, Judicial Watch Warns
California Clean Voter Registration Lists Face Federal
Lawsuit
(Aug.
2017)
(available
https://www.judicialwatch.org/press-room/pressreleases/j udicial -watch -warns-california -clean -voterregistration -lists-face-federal -lawsuit/); Press Release, Judicial
Watch, Judicial Watch Warns States Clean Voter
Registration Lists Face Federal Lawsuit (Apr. 11, 2017)
(available https://www.judicialwatch.org/press-room/pressreleases/j udicial -watch -warns-11-states-clean -voterregistration -lists-face-federal -lawsuit/).
2006), ECF No. (In over half Maines 503 voting
jurisdictions, the number registered voters exceed
the number citizens voting age.). Federal
courts have recognized that such allegations form
part valid claim for violation Section See
Am. Civ. Rights Union Martinez-Rivera, 166
Supp. 779, 793 (W.D. Tex. 2015) (upholding
denial motion dismiss NVRA complaint
alleging, among other things, that voter rolls
maintained the Defendant contain more voters
registered vote than there are citizens eligible
vote); Voter Integrity Project NC, Inc. Wake Cnty.
Ed. Elections, 301 Supp. 612, 618 (E.D.N.C.
2017) (denying motion dismiss where complaint
alleged voter rolls contained more registrants than
eligible voting-age citizens).
Judicial Watchs program enforce Section
has achieved notable successes.
Judicial Watch
remains the only private litigant enter into
statewide settlement agreement enforce Section the NVRA, which has done three times, Ohio,
Kentucky, and California (also settling with Los
Angeles County). Joint Stipulation Dismissal,
Judicial Watch, Inc. Husted, No. 2:12-cv-792-EASTPK (S.D. Oh. Jan. 13, 2014), ECF No. 245; Consent
Judgement, Judicial Watch, Inc. Grimes, No. 17cv-94 (E.D. Ky. July 2018), ECF No. 39; Plaintiffs
Notice Final Settlement Settlement Agreement,
The text the Ohio settlement agreement available here:
Judicial Watch, Inc. Husted, No. 2:12-cv-792-EAS-TPK (S.
Oh.
Jan.
13,
2014),
available
https://www.scribd.com/document/198544915/0H-FinalAgreement-Signed-by-JC-Ohio.
Judicial Watch, Inc. Logan, No. CV-17-8948-R
(C.D. Cal. Dec. 13, 2017), ECF Nos. 96, 96-1.
addition, Judicial Watch lawsuit against Indiana
became moot virtue the States list
maintenance efforts during the course the lawsuit.
See Plaintiffs Motion for Voluntary Dismissal With
Prejudice, Judicial Watch, Inc. King, No. l:12-cv800-WTL-TAB (S.D. Ind. June 2014), ECF No. 90.
While effective, Judicial Watchs Section
program costly. The demographic study Judicial
Watch sponsors every other year costs thousands
dollars.
NVRA lawsuits are fact- and witnessintensive. Judicial Watch paid for expert reports
Ohio and Indiana. California, Judicial Watch
retained three experts anticipation trial,
reviewed tens thousands pages documents
produced during discovery, and, the time the case
was settled, had filed motion for leave take fact depositions. See Plaintiffs Notice Motion
and Motion for Leave Take Additional
Depositions, Judicial Watch, Inc. Logan, No. CV17-8948-R (C.D. Cal. Aug. 14, 2018), ECF No. 83.
Judicial Watchs investment enforcing the
NVRA considerable.
Notwithstanding the
expense, however, the program necessary.
Judicial Watchs biennial studies concerning
national
registration
rates
regularly
show
widespread noncompliance with Section More
data regarding citizenship rates would ensure that
money and time are used most efficiently enforce
Section Including citizenship question the
decennial census would help provide such data
potential Section plaintiffs, including Judicial
Watch.
II. Citizenship Question the Decennial
Census Would Improve the Quality
Available Data. Petitioners point out, the Department
Justice stated that citizenship data was critical
its efforts enforce Section the Voting Rights
Act and that the decennial census was the most
appropriate vehicle for asking question about
citizenship.
Cert. Pet.
The Secretary
Commerce agreed. Id. acting, the
Secretary rejected the argument that including
citizenship question would reduce the response rate
for noncitizens. Id. The Secretary found that the The Department unquestionably correct that, matter law and practice, CVAP data critical enforcing Section the Voting Rights Act 1965, U.S.C. 10301. See
Bartlett Strickland, 556 U.S. (2009) (plurality opinion)
(upholding North Carolina Supreme Courts determination that
plaintiffs did not meet the preconditions for vote-dilution
claim under Section where their minority group did not
(/constitute numerical majority citizens voting agd
proposed district), quoting Pender County Bartlett, 361 N.C.
491, 507 (N.C. 2007) (emphasis added); see also Complaint 18, United States America Eastpointe, No. 1:06cv86 (E.D.
Mich. Jan. 10, 2017), ECF No. (Departments latest Section
complaint alleging that the black community Eastpointe
sufficiently numerous and geographically compact constitute majority the citizen voting-age population one singlemember district). Accurate citizenship data also vital
enforcing the language-minority provisions Section 203 the
Act, which may apply where 10,000 jurisdictions
(/citizens voting age are (/limited-English proficient.
U.S.C. 10503.
available data did not support this suggestion, and
added that the value more complete and
accurate
citizenship
data
outweighed
the
disadvantages that might arise from lower
response rate. Id.
Petitioners
have
pointed
out
that
determination about what include census
questionnaire committed agency discretion and
unreviewable
under
the
Administrative
Procedures Act (AP A). Cert. Per. 19. They also
note that court determining whether agency
action arbitrary and capricious under the APA
may not substitute its judgment for that the
agency. Id. 21. Amici join these arguments.
But amici also submit that the Secretarys
judgments were surely correct.
The decennial
census generates enormous number responses. the last census, percent households the
United States filled out and mailed back their 2010
Census questionnaire.7 The million households
that did not mail back census form the deadline
were visited census takers person, and,
ultimately, the Census Bureau either received
form attempted repeated visits 100 percent
the identified housing units the country. Id.
Press Release, U.S. Census Bureau, Nation Achieves
Percent Final Mail Participation 2010 Census (Oct. 21, 2010)
(available
https://www.census.gov/newsroom/releases/archives/2010_cens
us/cbl O-cn81.html).
Id. present, Judicial Watch relies for its
citizenship data the American Community
Survey, which just that-a yearly survey about
3.5 million households across the country.9 Data
from the ACS broken down into 1-year estimates
for geographic areas with populations 65,000
more, and 5-year estimates [fJor geographic areas
with smaller populations.10
Enlarging the available citizenship data with
many tens millions additional data points from
the decennial census must the great benefit
everyone who relies that information. All data,
course, has limitations, which must understood
and accounted for. suggest, however, that
possible limitations concerning such vast quantity new data means that should never collected the first place wrong-headed. involves the
curious assumption that are somehow better off
with less data. Indeed, betrays lack faith
the scientific method.
This new data, properly
understood, should provide wealth information
about citizenship rates the United States. But
will also useful ways not now anticipate. nothing else, will useful compare this data
with that from the ACS and other sources see
Top Questions About the Survey, U.S. Census Bureau,
https://www.census.gov/programs-surveys/acs/about/topquestions-about-the-survey.html (last visited Feb. 11, 2019). U.S. Census Bureau, Understanding and Using American
Community Survey Data: What All Data Users Need Know (2018), https://www.census.gov/content/dam/Census/
library/publications/2018/acs/acs_general_handbook_2018.pdf.
whether, and how, they corroborate conflict with
one another. addition, data from the decennial census
would address specific concerns about ACS data that
have been raised federal court. Bellitto
Snipes, No. 16-cv-61474-BLOOM/Valle, 2018 U.S.
Dist. LEXIS 103617 *29-30 (S.D. Fla. March 30,
2018), the district court expressed concern that the
ACS excludes individuals living overseas ... college
students well other seasonal residents
registered Broward County.
Because the
decennial census will sent every household,
will more likely reach college students
seasonal residents wherever they reside.
The
decennial census also includes particular program,
the Federally Affiliated Count Overseas (FACO)
Operation which obtains counts home state
U.S. military and federal civilian employees
stationed assigned overseas and their dependents
living with them. frequent litigants NVRA
cases, amici naturally would like present the best
possible data federal courts. They could avoid the
criticisms the ACS raised Bellitto presenting
census data.
For all these reasons, the citizenship
question should included the decennial census. 2020 Census Operational Plan 135 (Dec. 2018) (available
https://www2.census.gov/programssurveys/decennial/2020/program -management/planningdocs/2020-oper-plan .pdf).
III. The Court Should Grant the Petition and
Rule Time Allow the Citizenship
Question Included the 2020
Census.
Judicial Watch respectfully submits that the
Court should grant the petition order permit
the resolution this controversy prior June 2019.
Simply put, the petition denied, Judicial Watch
and other private litigants will compelled rely the limited data collected the ACS for the next
ten years.
This would impair the private
enforcement Section the NVRA, compared
what could have been achieved with more complete
data, for the next decade.
CONCLUSION
For the foregoing reasons, amici Judicial Watch
and AEF respectfully request that the Court grant
the petition for writ certiorari.
Respectfully submitted,
Robert Popper
Counsel Record
Eric Lee
JUDICIAL WATCH, INC.
425 Third Street
Washington, 20024
(202) 646-5172
rpopper@judicialwatch.org
Counsel for Amici Curiae
February 11, 2019