New York v. Trump
New York v. Trump
Plaintiffs,
v.
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Defendants.
INTRODUCTION
“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.”
U.S. Const. amend. XIV, § 2. The Framers of the Fourteenth Amendment deliberately chose the
phrase “whole number of persons” to refer to all persons living in each State—including the
“entire immigrant population not naturalized.” Cong. Globe, 39th Cong., 1st Sess. 432 (1866)
2. For 150 years—since the United States recognized the whole personhood of those
formerly bound in slavery—the unambiguous requirement that all persons be counted for
apportionment purposes, regardless of immigration status, has been respected by every executive
Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census.” 85 Fed.
Reg. 44,679 (July 23, 2020) (attached as Ex. 1). For the first time in our history, the
Memorandum announces a “policy of the United States to exclude from the apportionment base
aliens who are not in a lawful immigration status.” Id. at 44,680. It directs the Secretary of
Commerce to provide the President with information to carry out this policy. And it declares the
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President’s intent to make a determination of the “whole number of persons in each State” that
will in fact exclude the undocumented immigrants he has targeted throughout his administration.
4. The President’s new policy and any actions Defendants take to implement it
apportionment on “the whole number of persons in each State” could hardly be clearer, and the
Supreme Court has long recognized that undocumented immigrants are “persons” under the
Fourteenth Amendment, Plyler v. Doe, 457 U.S. 202, 210 (1982). The Memorandum’s open
disregard of the Constitution’s plain text is reason enough to invalidate it and to prevent
apportionment also violates the Constitution and federal statutes in multiple additional ways.
color in violation of the Due Process Clause of the Fifth Amendment. By explicitly targeting
and punishing States that refuse to assist in this administration’s enforcement of federal
immigration law, Defendants’ decision violates the Tenth Amendment. And Defendants’
decision to exclude undocumented immigrants from apportionment—as well as any action they
take to implement or further that decision—is both contrary to law and arbitrary and capricious,
apportionment, some Plaintiffs will suffer severe injury to their most basic rights under our
Constitution’s representational form of government: they will improperly lose one or more
Members in the House of Representatives and one or more corresponding electors in the
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Electoral College. And removing undocumented immigrants from the apportionment base will
further harm Plaintiffs by, for example, undermining their ability to conduct congressional and
state-level redistricting, depriving them of critical federal funding, and eroding the quality of
7. Plaintiffs the State of New York, State of Colorado, State of Connecticut, State of
of New Jersey, State of New Mexico, State of North Carolina, State of Oregon, Commonwealth
Washington, City of Central Falls, City of Chicago, City of Columbus, City of New York, City
of Philadelphia, City of Phoenix, City of Pittsburgh, City of Providence, City and County of San
Francisco, City of Seattle, Cameron County, El Paso County, Hidalgo County, and Monterey
County therefore bring this action seeking declaratory and injunctive relief to hold Defendants to
their obligation to base apportionment on “the whole number of persons in each State” and to
forbid them from excluding undocumented immigrants—or any other person—from the
apportionment base.
8. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and
2201(a).
2202.
10. Venue is proper in this judicial district under 28 U.S.C. §§ 1391(b)(2) and (e)(1).
Defendants are United States agencies or officers sued in their official capacities. Plaintiffs the
State of New York and the City of New York are residents of this judicial district, and a
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substantial part of the events or omissions giving rise to this Complaint occurred and are
PARTIES
11. Plaintiff the State of New York, represented by and through its Attorney General,
is a sovereign state of the United States of America. The Attorney General is New York State’s
chief law enforcement officer and is authorized under N.Y. Executive Law § 63 to pursue this
action.
12. Plaintiff the State of Colorado is a sovereign state of the United States of
America. The State of Colorado brings this action by and through its Attorney General, Philip J.
Weiser. The Attorney General has authority to represent the state, its departments, and its
agencies, and “shall appear for the state and prosecute and defend all actions and proceedings,
civil and criminal, in which the state is a party.” Colo. Rev. Stat. § 24-31-101.
13. Plaintiff the State of Connecticut, represented by and through its Attorney
General, William Tong, is a sovereign state of the United States of America. The Attorney
General brings this action as the state’s chief civil legal officer under Conn. Gen. Stat. § 3-124 et
seq.
14. Plaintiff the State of Delaware is represented by and through its Attorney General
Kathleen Jennings, and is a sovereign state of the United States of America. Attorney General
Jennings is Delaware’s chief law enforcement officer, see Del. Const., art. III, and is authorized
and be sued, and is the local government for the territory constituting the permanent seat of the
federal government. The District brings this case through the Attorney General for the District
of Columbia, who is the chief legal officer for the District and possesses all powers afforded the
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Attorney General by the common and statutory law of the District. The Attorney General is
responsible for upholding the public interest and has the authority to file civil actions in order to
16. Plaintiff the State of Hawai‘i, represented by and through its Attorney General, is
a sovereign state of the United States of America. Attorney General Clare E. Connors is the
chief legal officer of the State of Hawai‘i and is authorized to appear, personally or by deputy, on
behalf of the state in all courts and in all cases in which the state is a party. Haw. Const. art. V,
17. Plaintiff the State of Illinois, represented by and through its Attorney General,
Kwame Raoul, is a sovereign state of the United States of America. The Attorney General is
Illinois’s chief law enforcement officer and is authorized under 15 ILCS 205/4 to pursue this
action.
18. Plaintiff the State of Maryland, by and through its Attorney General, Brian E.
Frosh, is a sovereign state of the United States of America. The Attorney General is Maryland’s
chief legal officer with general charge, supervision, and direction of the State’s legal business.
The Attorney General’s powers and duties include acting on behalf of the State and the people of
Maryland in the federal courts on matters of public concern. Under the Constitution of
Maryland, and as directed by the Maryland General Assembly, the Attorney General has the
authority to file suit to challenge action by the federal government that threatens the public
interest and welfare of Maryland residents. Md. Const. art. V, § 3(a)(2); 2017 Md. Laws, Joint
Resolution 1.
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Attorney General, is a sovereign state of the United States of America. The Attorney General is
authorized to pursue this action under Mass. Gen. Laws ch. 12, §§ 3 and 10.
20. Plaintiff the State of Michigan, represented by and through its Attorney General,
is a sovereign state of the United States of America. The Attorney General is Michigan’s chief
law enforcement officer and is authorized under Michigan law, Mich. Comp. Laws §§ 14.28 and
21. Plaintiff the State of Minnesota, represented by and through its Attorney General,
is a sovereign state of the United States of America. The Attorney General is Minnesota’s chief
legal officer and is authorized to pursue this action on behalf of the State. Minn. Stat. § 8.01.
22. Plaintiff the State of Nevada, represented by and through its Attorney General, is
a sovereign state of the United States of America. Attorney General Aaron D. Ford is the chief
legal officer of the State of Nevada and has the authority to commence actions in federal court to
protect the interests of Nevada. Nev. Rev. Stat. § 228.170. Governor Stephen F. Sisolak is the
chief executive officer of the State of Nevada. The Governor is responsible for overseeing the
operations of the State and ensuring that its laws are faithfully executed. Nev. Const., art. 5, § 1.
23. Plaintiff the State of New Jersey, represented by and through its Attorney General
Gurbir S. Grewal, is a sovereign state of the United States of America. The Attorney General is
New Jersey’s chief legal officer and is authorized to pursue this action on behalf of the State.
24. Plaintiff the State of New Mexico, represented by and through its Attorney
General Hector Balderas, is a sovereign state of the United States of America. The Attorney
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General is authorized to bring an action on behalf of New Mexico in any court when, in his
judgment, the interests of the State so require, N.M. Stat. Ann. § 8-5-2.
25. Plaintiff the State of North Carolina, represented by and through Attorney General
Joshua H. Stein, is a sovereign state of the United States of America. The Attorney General is
the State of North Carolina’s chief law enforcement officer and brings this challenge pursuant to
26. Plaintiff the State of Oregon, acting by and through the Attorney General of
Oregon, Ellen F. Rosenblum, is a sovereign state of the United States of America. The Attorney
General is the chief law officer of Oregon and is empowered to bring this action on behalf of the
State of Oregon, the Governor, and the affected state agencies under Or. Rev. Stat. §§ 180.060,
States of America. This action is brought on behalf of the Commonwealth by Attorney General
Josh Shapiro, the “chief law officer of the Commonwealth.” Pa. Const. art. IV, § 4.1. Attorney
General Shapiro brings this action on behalf of the Commonwealth pursuant to his statutory
28. Plaintiff the State of Rhode Island, represented by and through its Attorney
General, is a sovereign state of the United States. Attorney General Peter F. Neronha is the chief
legal advisor to the State of Rhode Island and is authorized to pursue this action pursuant to his
constitutional, statutory, and common law authority. R.I. Const. art. IX § 12, R.I. Gen. Laws
§§ 42-9-1 et seq.
29. Plaintiff the State of Vermont, represented by and through its Attorney General,
Thomas J. Donovan, is a sovereign state in the United States of America. The Attorney General
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is the state’s chief law enforcement officer and is authorized to pursue this action pursuant to Vt.
30. Plaintiff the Commonwealth of Virginia brings this action by and through its
Attorney General, Mark R. Herring. The Attorney General has the authority to represent the
Commonwealth, its departments, and its agencies in “all civil litigation in which any of them are
31. Plaintiff the State of Washington, represented by and through its Attorney
General, Robert W. Ferguson, is a sovereign state of the United States of America. The Attorney
General is the chief legal adviser to the State of Washington and is authorized to pursue this
action pursuant to RCW 43.10.030. The Attorney General’s powers and duties include acting in
32. Plaintiff the City of Central Falls is a municipal corporation organized pursuant to
33. Plaintiff the City of Chicago is a municipal corporation and home rule unit
organized and existing under the constitution and laws of the State of Illinois.
34. Plaintiff the City of Columbus is a municipal corporation and home rule unit
organized and existing under the constitution and laws of the State of Ohio and the City’s Home
Rule Charter.
35. Plaintiff the City of New York is a municipal corporation organized pursuant to
the laws of the State of New York. New York City is a political subdivision of the State and
derives its powers through the New York State Constitution, New York State laws, and the New
York City Charter. New York City is the largest city in the United States by population.
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the laws of the Commonwealth of Pennsylvania. The City is a political subdivision of the
Commonwealth with powers derived from the Pennsylvania Constitution, Commonwealth law,
37. Plaintiff the City of Phoenix is a municipal corporation organized pursuant to the
the laws of the Commonwealth of Pennsylvania. The City is a political subdivision of the
Commonwealth with powers derived from the Pennsylvania Constitution, Commonwealth law,
40. Plaintiff the City and County of San Francisco, represented by and through its
City Attorney, is a municipal corporation organized and existing under and by virtue of the laws
41. Plaintiff the City of Seattle is a first-class charter city, incorporated under the laws
of the State of Washington, empowered to sue and be sued, and represented by and through its
42. Plaintiff Cameron County, Texas is a political subdivision of the State of Texas.
43. Plaintiff El Paso County, Texas is a political subdivision of the State of Texas.
44. Plaintiff Hidalgo County, Texas is a political subdivision of the State of Texas.
California.
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46. Plaintiffs are aggrieved by Defendants’ decision and conduct and have standing to
bring this action because Defendants’ decision and actions to exclude undocumented immigrants
from the apportionment base harm Plaintiffs’ sovereign, quasi-sovereign, economic, and
proprietary interests and will continue to cause injury unless and until the challenged decision
responsible for the actions and decisions that are being challenged by Plaintiffs in this action and
48. Defendant the United States Department of Commerce is a cabinet agency within
the executive branch of the United States government. The Commerce Department is
responsible for planning, designing, and implementing the 2020 Census. 13 U.S.C. § 4.
for overseeing the Census Bureau, conducting the decennial census of the population, and
reporting to the President the tabulation of total population by States for the apportionment of
50. Defendant Bureau of the Census is an agency within, and under the jurisdiction
of, the Department of Commerce. 13 U.S.C. § 2. The Census Bureau is responsible for planning
51. Defendant Steven Dillingham is Director of the Census Bureau. He is sued in his
official capacity.
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ALLEGATIONS
52. The Constitution requires that the Members of the House of 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.” U.S. Const. amend.
53. The number of Representatives apportioned to each State, along with the two
Senators given to each State, determines the allocation among the States of electors in the
allocate electors among the States properly) the Constitution requires an “actual Enumeration” of
55. “By its terms, therefore, the Constitution mandates that every ten years the federal
government endeavor to count every single person residing in the United States, whether citizen
or noncitizen, whether living here with legal status or without,” and to use that enumeration of
the total population “to apportion Representatives among the states.” New York v. Dep’t of
56. More than two hundred years of history, practice, and judicial and administrative
precedents establish that the apportionment of Representatives must be based on all persons
57. During the country’s founding, the Framers debated the proper basis on which to
apportion Representatives and declared that Representatives “shall be apportioned among the
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several States which may be included within this Union, according to their respective Numbers.”
U.S. Const. art. I, § 2, cl. 3 (emphasis added). The Framers repeatedly made clear that the basis
for apportionment of Representatives was thus all persons. For example, as James Madison
explained in 1788, the “fundamental principle of the proposed constitution” ensured that “the
aggregate number of inhabitants.” The Federalist No. 54, p. 284 (G. Carey & J. McClellan eds.
2001).
58. The original Apportionment Clause provided for only two exceptions to the use of
total population for apportionment. First, “Indians not taxed” were excluded from the
apportionment base. U.S. Const. art. I, § 2, cl. 1, § 3. Second, slaves were counted as only
three-fifth of a person. Id. No other exceptions were provided, making clear that all other
persons living in the United States needed to be counted by the decennial enumeration and
59. When debating what is now the Fourteenth Amendment, Congress reconsidered
the proper basis for apportioning House seats among the States and reaffirmed that
apportionment must be based on all persons living in each State—citizens and noncitizens alike.
The Framers of the Fourteenth Amendment rejected numerous proposals to change the basis of
apportionment from total population to voter population. See, e.g., Cong. Globe, 39th Cong., 1st
Sess. 10 (1865) (proposal to apportion representatives among the States “according to their
60. Instead, the Framers amended the Constitution to remove the provision that
must be based on the “whole number of persons in each State.” U.S. Const. amend. XIV, § 2.
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As the Fourteenth Amendment’s Framers explained, “numbers,” i.e., all persons living in each
State, is “the most just and satisfactory basis, and this is the principle upon which the
Constitution itself was originally framed, that the basis of representation should depend upon
numbers; and such . . . is the safest and most secure principle upon which the Government can
rest. Numbers, not voters; numbers, not property; this is the theory of the Constitution.” Cong.
61. Basing apportionment on all persons, the Framers further emphasized, ensured
that each State’s representation in the House reflected all persons regardless of whether they
could then vote, including women, children, and the “entire immigrant population not
naturalized.” Id. at 432 (Rep. John Bingham); see, e.g., id. at 411 (representation based on
number of voters improperly “takes from the basis of representation all unnaturalized foreigners”
62. Since 1790, in accordance with the Constitution’s express requirement to base
apportionment on all persons living in each State, the decennial actual enumeration has always
counted all persons living in the United States based on where they “usually reside[].” See
Census Act of 1790, § 5, 1 Stat. 101 (1790); 2020 Decennial Census Residence Rule and
Residence Situations, 80 Fed. Reg, 28,950, 28,950 (May 20, 2015) (“The Census Act of 1790
established the concept of ‘usual residence’ as the main principle in determining where people
are to be counted. This concept has been followed in all subsequent censuses.”).
63. Under the Census Bureau’s well-settled practice and a final rule that it
promulgated pursuant to notice-and-comment rulemaking for the 2020 Census, usual residence
means the place where a person lives and sleeps most of the time. See Final 2020 Census
Residence Criteria and Residence Situations, 83 Fed. Reg. 5525, 5533 (Feb. 8, 2018).
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64. Accordingly, the decennial enumeration and apportionment base includes all
noncitizens who live and sleep most of the time in the United States, regardless of their place of
citizenship or immigration status. See, e.g., id. The enumeration likewise counts noncitizens
who are “members of the diplomatic community” “at the embassy, consulate, United Nations’
65. By contrast, noncitizens who are temporarily visiting the United States, such as on
a vacation or business trip, are not included in the decennial enumeration and apportionment
base because they do not live and sleep most of the time in the United States. See, e.g., id.
66. The millions of undocumented immigrants who do live in the United States have
an established presence here. These immigrants have moved to the United States, and they are
67. For example, the Migration Policy Institute has estimated, based on data from
2012 to 2016, that more than nine million undocumented immigrants have lived in the United
States for five years or more. The Migration Policy Institute estimated that more than seven
million undocumented immigrants have lived in this country for ten years or more, and that
nearly four million undocumented immigrants have lived here for twenty years or more. 1
68. Undocumented immigrants residing here both contribute to and participate in their
communities and in many public programs. For example, millions of undocumented immigrants
1
Migration Policy Institute, Profile of the Unauthorized Population: United States,
https://www.migrationpolicy.org/data/unauthorized-immigrant-population/state/US.
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work here and pay taxes. 2 Many undocumented immigrants live here with their family members,
69. Based on the Constitution’s text, more than two centuries of history, and well-
settled census practice, the Supreme Court and other courts have repeatedly made clear that the
all persons living in each State. See, e.g., Wesberry v. Sanders, 376 U.S. 1, 10-18 (1964);
Evenwel v. Abbott, 136 S. Ct. 1120, 1127-29 (2016). Courts have also repeatedly determined
that the “whole number of persons” used to apportion Representatives includes all noncitizens
who are living in the United States regardless of their immigration status. See, e.g., Fed’n for
Am. Immigration Reform v. Klutznick, 486 F. Supp. 564, 576-78 (D.D.C. 1980) (three-judge
court).
70. The federal government, and several of the Defendants here, have conceded that
the decennial enumeration that constitutes the apportionment base must count all persons living
71. For example, on March 14, 2019, Secretary Ross testified under oath during a
congressional committee hearing, stating “The constitutional mandate, sir, for the census is to try
2
See, e.g., Jens Manuel Krogstad et al., Pew Research Center, 5 facts about illegal immigration
in the U.S. (June 12, 2019), https://www.pewresearch.org/fact-tank/2019/06/12/5-facts-about-
illegal-immigration-in-the-u-s (estimating that in 2017, the United States’ civilian workforce
included 7.6 million undocumented immigrants); American Immigration Council, Adding Up the
Billions in Tax Dollars Paid by Undocumented Immigrants 1,
https://www.americanimmigrationcouncil.org/sites/default/files/research/adding_up_the_billions
_in_tax_dollars_paid_by_undocumented_immigrants.pdf; Hunter Hallman, Bipartisan Policy
Center, How do Undocumented Immigrants Pay Federal Taxes? An Explainer (Mar. 28, 2018),
https://bipartisanpolicy.org/blog/how-do-undocumented-immigrants-pay-federal-taxes-an-
explainer/.
3
Migration Policy Institute, supra (estimating that more than 3 million undocumented
immigrants over the age of 15 resided with a citizen child under the age of 18).
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to count every person residing in the U.S. at their place of residence on the dates when the
census is conducted.” Hearing Before the H. Comm. on Oversight & Reform, 116th Cong. 31
(Mar. 14, 2019) (emphasis added). Secretary Ross further testified that “the Department of
can. We intend to try to count every person taking all necessary actions to do so.” Id. (emphasis
added).
Director Dillingham stated that the Bureau will “count everyone, wherever they are living,”
including undocumented immigrants. Hearing Before the H. Comm. on Oversight & Reform,
73. The federal government has repeatedly argued that excluding undocumented
immigrants from the decennial enumeration or the apportionment base violates the Constitution
and applicable statutes. For example, in Federation for American Immigration Reform v.
Klutznick, the government urged a district court to reject claims demanding exclusion of
undocumented immigrants from the “whole number of persons” that constitutes the
apportionment base. The government explained that “the plain language of the Constitution, as
well as the intent of its framers, establishes that all inhabitants, including illegal aliens, must be
74. Similarly, the Department of Justice’s Office of Legislative Affairs has opined
4
Defs.’ Mem. of Points & Authorities in Support of Mot. to Dismiss or for Summary Judgment,
No. 79-3269 (D.D.C.), reprinted in 1980 Census: Counting Illegal Aliens, Hr’gs Before the S.
Subcomm. on Energy, Nuclear Proliferation and Federal Services, 96th Cong. 125-156 (1980).
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enumeration that constitutes the apportionment base. See, e.g., Letter from Carol T. Crawford,
75. The population count derived from the census is used not only to apportion
representatives and ultimately electors “but also to allocate federal funds to the States and to
draw electoral districts.” Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2561 (2019).
76. For these reasons, the “decennial enumeration of the population is one of the most
critical constitutional functions our Federal Government performs.” Pub. L. No. 105-119,
B. The Census Act requires that the total population count used for
congressional apportionment include all persons living in the United States.
77. The Constitution provides that an “actual Enumeration shall be made” every ten
years “in such manner as [Congress] shall direct by law.” U.S. Const. art. I, § 2. Congress has
exercised its authority over the census by enacting various statutory provisions (“Census Act”).
78. Congress has assigned the responsibility of conducting the decennial enumeration
to the Secretary of Commerce, and the Secretary may delegate authority for establishing
79. The Census Act requires that the decennial census be taken on April 1, 2020, the
“decennial census date.” 13 U.S.C. § 141(a). The Secretary of Commerce has no discretion to
delay the decennial census date under the Census Act. Id.
80. Within nine months of the decennial census date, i.e., by January 1, 2021, the
Secretary of Commerce must report to the President “[t]he tabulation of total population by
States” that is “required for the apportionment of Representatives in Congress among the several
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81. Then, between January 3 and January 8, 2021, the President must transmit to
Congress “a statement showing the whole number of persons in each State, excluding Indians not
taxed, as ascertained under the . . . decennial census of the population, and the number of
Representatives to which each State would be entitled under an apportionment of the then
existing number of Representatives by the method known as the method of equal proportions, no
82. Within fifteen days of receiving the President’s statement, the Clerk of the House
of Representatives must transmit “to the executive of each State a certificate of the number of
II. Defendants’ unlawful attempt to add a citizenship question to the decennial census.
83. Defendants’ decision and actions to exclude undocumented immigrants from the
apportionment base are directly related to Secretary Ross’s earlier and unlawful attempt to alter
the decennial census that provides the apportionment count by adding a question inquiring about
citizenship status.
84. On March 26, 2018, Secretary Ross directed the Census Bureau to use the 2020
Census to demand information on the citizenship status of every resident in the country. 5
Secretary Ross stated that he had decided to add the citizenship question because doing so was
“necessary to provide complete and accurate data” that would aid enforcement of the Voting
5
Memorandum from Sec’y of Commerce Wilbur Ross to Under Sec’y of Commerce for Econ.
Affairs Karen Dunn Kelley, Reinstatement of a Citizenship Question on the 2020 Decennial
Census Questionnaire 7 (Mar. 26, 2018), https://www.commerce.gov/sites/commerce.gov/files”
/2018-03-26_2.pdf.
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85. Many of the plaintiffs here filed a lawsuit challenging the addition of the
citizenship question as, among other things, arbitrary and capricious and contrary to law, in
violation of the Administrative Procedure Act, 5 U.S.C. § 706(2). See Second Am. Compl., New
York v. U.S. Dep’t of Commerce, No. 18-cv-2921, Doc. No. 210 (S.D.N.Y. filed July 23, 2018).
86. After an eight-day bench trial, the United States District Court for the Southern
District of New York vacated Secretary Ross’s decision to add a citizenship question to the 2020
census questionnaire. New York, 351 F. Supp. 3d at 679. In so ruling, the court concluded that
the plaintiffs had standing to sue because the inclusion of a citizenship question would deter
participation in the census by households with a noncitizen and lead to a differential undercount
of noncitizens and Hispanics that would concretely harm plaintiffs in various ways. Id. at 578-
593. For example, the court found that adding a citizenship question would cause some plaintiffs
to lose congressional seats, impair state and local redistricting efforts that rely on census
numbers, harm the quality and accuracy of census data, and reduce federal funding to plaintiffs’
87. The court also determined that Secretary Ross’s decision violated the
Administrative Procedure Act for several reasons, including because his rationale for adding the
citizenship question was pretextual. Id. at 660-64. As the court explained, the evidence was
“clear that Secretary Ross’s rationale was pretextual—that is, that the real reason for his decision
[to add the citizenship question] was something other than the sole reason he put forward in his
Memorandum, namely enhancement of DOJ’s VRA enforcement efforts.” Id. at 660. The court
noted that it was “unable to determine—based on the existing record, at least—what Secretary
Ross’s real reasons for adding the citizenship question were.” Id. at 569-70.
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88. The Supreme Court granted certiorari before judgment and affirmed, in relevant
part, the district court’s final judgment setting aside the Secretary’s decision to add a citizenship
question. The Supreme Court held that “the Secretary’s decision must be set aside because it
rested on a pretextual basis.” Dep’t of Commerce, 139 S. Ct. at 2573. The Court reasoned that
the Secretary’s decision “cannot be adequately explained in terms of DOJ’s request for improved
citizenship data to better enforce the VRA” because there was “a significant mismatch between
the decision the Secretary made and the rationale he provided.” Id. at 2575. In short, Secretary
Ross’s “VRA enforcement rationale—the sole stated reason—seems to have been contrived.”
Id.
89. After the Supreme Court remanded the case to the district court, the court entered
a permanent injunction that enjoined the defendants “from including a citizenship question on
the 2020 decennial census questionnaire; from delaying the process of printing the 2020
decennial census questionnaire after June 30, 2019 for the purpose of including a citizenship
question; and from asking persons about citizenship status on the 2020 census questionnaire or
otherwise asking a citizenship question as part of the 2020 decennial census.” Order, New York
v. Dep’t of Commerce, No. 18-cv-2921, Doc. No. 634 (S.D.N.Y. July 16, 2019).
90. On July 11, 2019, President Trump issued an Executive Order to “ensure that
accurate citizenship data is compiled in connection with the census” notwithstanding the
Supreme Court’s decision and the district court’s order precluding the use of a citizenship
question in the 2020 Census. Collecting Information About Citizenship Status in Connection
with the Decennial Census, Exec. Order 13,880, § 1, 84 Fed. Reg. 33,821, 33,821 (July 16,
2019).
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91. To achieve that goal, President Trump directed all executive departments and
consistent with law, in determining the number of citizens and noncitizens in the country.” Id.
92. In a public statement accompanying the issuance of the Executive Order, given
from the White House’s Rose Garden, President Trump made clear that the federal government
would not be “backing down on our effort to determine the citizenship status of the United States
population.” President Donald Trump, Remarks by President Trump on Citizenship and the
trump-citizenship-census/. President Trump stated that “[t]here used to be a time when you
could proudly declare, ‘I am a citizen of the United States.’ Now they’re trying to erase the very
existence of a very important word and a very important thing: citizenship.” Id.
93. President Trump further stated that, pursuant to the Executive Order, the federal
government will be taking steps “to ensure that citizenship is counted so that we know how many
III. The July 21, 2020 Memorandum directing exclusion of undocumented immigrants
from the apportionment count.
94. Recent events have now laid bare the real reasons driving Secretary Ross’s
decision to add a citizenship question to the 2020 Census: to exclude undocumented persons
from the “whole number of persons” that constitutes the apportionment base and to discriminate
95. On July 21, 2020, President Trump issued a memorandum (i) declaring that
undocumented immigrants will be excluded from the “whole number of persons in each State”
enumerated by the 2020 Census and used to apportion the number of Representatives to each
State, and (ii) directing the Secretary to take “all appropriate action” to provide the President
22
Case 1:20-cv-05770 Document 1 Filed 07/24/20 Page 23 of 49
Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020
Census, 85 Fed. Reg. 44,679 (July 23, 2020) (attached as Ex. 1).
96. The Memorandum declares that “[f]or the purpose of the reapportionment of
Representatives following the 2020 Census, it is the policy of the United States to exclude from
the apportionment base aliens who are not in a lawful immigration status under the Immigration
and Nationality Act, as amended (8 U.S.C. 1101 et seq.), to the maximum extent feasible.” Id. at
44,680.
97. The Memorandum asserts that the Executive branch has purported “discretion” to
exclude from the apportionment base all undocumented immigrants who reside in the United
States, id. at 44,679—no matter how long they have been living here.
apportionment of Representatives based on the “whole number of persons in each State.” Id. It
states that not every person who is physically present on the decennial census date is living in the
United States. Id. For example, the Memorandum states, noncitizens who are temporarily
visiting on vacation or for business are not “inhabitants” of the United States and are thus not
included in the apportionment base. Id. Without any plausible basis, the Memorandum then
asserts that purported “discretion delegated to the executive branch to determine who qualifies as
an ‘inhabitant’ includes authority to exclude from the apportionment base aliens who are not in a
lawful immigration status”—even if those persons have been living in the United States for many
years. Id.
23
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99. In the Memorandum, President Trump targets States (including some of the
plaintiff States) that have many undocumented immigrants living in their jurisdictions or that
have declined to affirmatively assist the federal government’s immigration enforcement efforts.
representation, and therefore formal political influence, to States on account of the presence
within their borders of aliens who have not followed the steps to secure a lawful immigration
status under our laws undermines those principles.” Id. at 44,680. The Memorandum further
stated that States that decline to adopt state laws or policies to assist federal efforts to enforce the
immigration laws passed by Congress should essentially be stripped of any “representation in the
jurisdictions. Id.
101. The Memorandum requires Secretary Ross, in preparing his § 141(b) report of the
actual enumeration on which apportionment must be based, to take actions “to provide
The Memorandum thus directs the Secretary (and by extension the Commerce Department and
Census Bureau) to take actions to enable the President to exclude undocumented immigrants
from his § 2a(a) report of both the “whole number of persons in each State” and the
102. On the same day that he issued the Memorandum, President Trump issued a
public statement making clear that Defendants’ decision and actions to exclude undocumented
immigrants from the apportionment base are a continuation of the federal government’s prior
unlawful attempt to add a citizenship question to the 2020 Census. President Donald Trump,
24
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https://www.whitehouse.gov/briefings-statements/statement-president-regarding-apportionment/.
103. As President Trump’s statement explained, he had previously asserted during his
Rose Garden statements in July 2019 that he “would not back down in [his] effort to determine
the citizenship status of the United States population.” Id. He further explained that he was now
illegal aliens from the apportionment base following the 2020 census.” Id. Echoing his earlier
statements about the citizenship question, Trump further asserted that “[t]here used to be a time
when you could proudly declare, ‘I am a citizen of the United States’” and that “the radical left is
trying to erase the existence of this concept and conceal the number of illegal aliens in our
country.” Id. He stated that his Memorandum directing exclusion of undocumented immigrants
from the apportionment base responds to a purported “broader left-wing effort to erode the rights
104. Upon information and belief, following receipt of the Memorandum, the Secretary
or Department of Commerce has issued (or will imminently issue) directives to the Census
Bureau, constituting final agency action, to implement President Trump’s directive to exclude
105. The Memorandum explicitly states that its goal is to reduce political influence and
106. President Trump has repeatedly articulated concerns about the growth of
immigrant communities and the impact of that growth on political power, and has sought to
25
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minimize the power of Hispanic and immigrant communities to increase the power of non-
Hispanic whites.
107. During the 2016 presidential campaign, for example, President Trump tweeted:
“How crazy—7.5% of all births in U.S. are to illegal immigrants, over 300,000 babies per year.
systems, President Trump claimed that Democrats favor “chain migration” because the party
believes the immigrants will “vote Democratic.” Three weeks later, on April 28, President
Trump revisited this topic, stating that Democrats favor undocumented immigration because “all
of these people that are pouring across are going to vote for Democrats, they’re not going to vote
for Republicans.” 7
is of a piece with President Trump’s anti-immigrant and anti-Hispanic rhetoric and his
110. President Trump has long engaged in rhetoric that disparages Hispanics and
immigrants of color. In statements stretching back to the beginning of his campaign, President
Trump has repeatedly dehumanized, devalued, and vilified immigrants in general, and
6
Donald Trump (@realDonaldTrump), Twitter (Aug. 21, 2015 6:56 AM),
https://twitter.com/realdonaldtrump/status/634725641972248576.
7
Fox News (@FoxNews), Twitter (Apr. 28, 2018),
https://twitter.com/foxnews/status/990383288232620032.
26
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a. During his campaign launch in June 2015, President Trump claimed that “[w]hen
Mexico sends its people. . . . They’re sending people that have lots of problems,
and they’re bringing those problems with us. They’re bringing drugs. They’re
bringing crime. They’re rapists. . . . It’s coming from more than Mexico. It’s
b. During a meeting about recent immigrants in the Oval Office in June 2017,
President Trump stated that 15,000 immigrants from Haiti “all have AIDS” and that
40,000 immigrants from Nigeria would never “go back to their huts” in Africa after
c. During a January 2018 meeting with lawmakers, while discussing protections for
immigrants from Haiti, El Salvador and other African countries, President Trump
asked why the United States is “having all these people from shithole countries
come here” and suggested that the United States should have more immigrants from
8
Full text: Donald Trump announces a presidential bid, Wash. Post, June 16, 2015,
https://www.washingtonpost.com/news/post-politics/wp/2015/06/16/full-text-donald-trump-
announces-a-presidential-bid/.
9
Michael D. Shear & Julie Hirschfeld Davis, Stoking Fears, Trump Defied Bureaucracy to
Advance Immigration Agenda, N.Y. Times, Dec. 23, 2017,
https://www.nytimes.com/2017/12/23/us/politics/trump-immigration.html.
10
Ali Vitali, Kasie Hunt & Frank Thorp V, Trump referred to Haiti and African nations as
‘shithole’ countries, Jan. 12, 2018, https://www.nbcnews.com/politics/white-house/trump-
referred-haiti-african-countries-shithole-nations-n836946.
27
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d. In a May 16, 2018 speech, President Trump stated that “[w]e have people coming
into the country, or trying to come in . . . . You wouldn’t believe how bad these
e. Speaking on the topic of migrant groups travelling to the United States from Central
America at a rally on May 8, 2019, President Trump, stated, “[W]hen you see these
111. President Trump has acted on this rhetoric by adopting policies that seek to
isolate, exclude, and instill fear in Hispanic immigrants and other immigrants of color. For
a. Attempted to rescind the Deferred Action for Childhood Arrivals program, which
protected 800,000 individuals, 90% of whom were Hispanic and 80% of whom
were Mexican-American;
experiencing war and natural disasters, including Nicaragua, Honduras, Haiti and El
Salvador;
11
Julie Hirschfeld Davis, Trump Calls Some Unauthorized Immigrants ‘Animals’ in Rant, N.Y.
Times, May 16, 2018, https://www.nytimes.com/2018/05/16/us/politics/trump-undocumented-
immigrants-animals.html.
12
President Trump Holds Rally in Panama City Beach, Florida, C-SPAN (May 8, 2019) (video),
https://www.c-span.org/video/?460412-1/president-trump-holds-rally-panama-city-beach-florida.
28
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including, as recently as June 17, 2019, when President Trump tweeted a threat that
“[n]ext week ICE will begin the process of removing the millions of illegal aliens
who have illicitly found their way into the United States. They will be removed as
g. Adopted policies of separating children from their families when entering the
United States from Mexico, and detaining children separate from their parents and
h. Maintained children and other migrants across the U.S.-Mexico border in detention
facilities that the United Nations Children’s Fund has described as “dire” and as
112. These public statements and actions from Defendant Trump establish that the
rationale for excluding undocumented immigrants from the apportionment base is motivated by
racial animus against immigrants of color, and a desire to curb the political power of immigrant
communities of color.
13
Nick Miroff & Maria Sacchetti, Trump vows mass immigration arrests, removals of ‘millions
of illegal aliens’ starting next week, Wash. Post, June 17, 2019,
https://www.washingtonpost.com/immigration/trump-vows-mass-immigration-arrests-removals-
of-millions-of-illegal-aliens-starting-next-week/2019/06/17/4e366f5e-916d-11e9-aadb-
74e6b2b46f6a_story.html?utm_term=.ece5e6a6b7e6.
14
After Rio Grande tragedy, UNICEF chief highlights “dire” detention centres on US-Mexico
border, UN News (June 27, 2019), https://news.un.org/en/story/2019/06/1041421.
29
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113. Defendants’ decision and actions to exclude undocumented immigrants from the
interests because they will cause some Plaintiffs to lose congressional seats and decrease their
share of presidential electors in the Electoral College; skew the division of electoral districts
within Plaintiffs’ jurisdictions by impairing state and local redistricting efforts that rely on the
census count; reduce federal funds to Plaintiffs’ jurisdictions by deterring immigrants from
responding to the decennial census that is currently underway; and degrade the quality of census
114. First, excluding undocumented immigrants from the apportionment count will
likely cause several States to lose one or more Representatives in Congress, directly harming
those Plaintiff States, as well as those Plaintiff counties and cities within affected States, by
diluting their political power and undermining their interest in fair congressional representation.
Texas, New York, New Jersey, and Illinois. 15 Defendants’ decision to exclude undocumented
immigrants from the apportionment count is likely to directly reduce representation for those
jurisdictions in Congress, injuring the representational interests of Plaintiffs the State of New
York, State of New Jersey, State of Illinois, City of Chicago, City of New York, City and County
of San Francisco, Cameron County, El Paso County, Hidalgo County, and Monterey County.
15
Pew Research Center, November 27, 2018, U.S. Unauthorized Immigrant Total Dips to Lowest
Level in a Decade, https://www.pewresearch.org/hispanic/wp-
content/uploads/sites/5/2019/03/Pew-Research-Center_2018-11-27_U-S-Unauthorized-
Immigrants-Total-Dips_Updated-2019-06-25.pdf.
30
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Other Plaintiffs may also suffer direct representational harms if undocumented individuals are
116. The Memorandum itself acknowledges and intends these harms. See 85 Fed. Reg.
at 44,680 (recognizing that excluding undocumented immigrants will “result in the allocation” of
117. The loss of a congressional seat will also cause the affected Plaintiff States,
counties, and cities to lose one or more votes in the Electoral College, impairing their ability to
elect the President and Vice President and harming their political power.
118. Second, excluding undocumented immigrants from the apportionment base will
States must use total population as the population base for congressional redistricting. Wesberry
v. Sanders, 376 U.S. 1, 18 (1964) (describing “our Constitution's plain objective of making equal
representation for equal numbers of people the fundamental goal for the House of
undocumented immigrants from the apportionment base will undermine Plaintiff States’ ability
120. Certain Plaintiffs are required by state constitutional or statutory provisions to use
the total population count from the decennial census as the basis for redistricting within their
jurisdictions. New York state law provides, for example, that “each federal census taken
decennially . . . shall be controlling as to the number of inhabitants in the state or any part thereof
for the purposes of the apportionment of members of assembly and readjustment or alteration of
31
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senate and assembly districts.” N.Y. Const. art. III, § 4(a); see also id. §§ 3-5, 5-a. Many of the
121. Third, excluding undocumented immigrants from the apportionment base will
deprive Plaintiffs of critical federal funding and inflict substantial financial harms on Plaintiffs.
122. Political science literature establishes that States that lose seats in Congress
typically see a decrease in their share of federal outlays in subsequent years due to the reduction
in their voting power in Congress. See, e.g., Roy Elis, Neil Malhotra, & Marc Meredith,
Plaintiffs likely to lose representation in Congress therefore also stand to lose critical federal
resources as a result.
123. All Plaintiffs will further suffer financial harm because Defendants’ decision to
exclude undocumented immigrants from the apportionment base will deter participation in the
ongoing decennial census, undermining the Census Bureau’s efforts to count immigrants and
their families, and depriving Plaintiffs of their fair share of census-derived federal funds.
124. Plaintiffs are home to some of the hardest-to-count communities in the nation,
immigrants live in mixed-status families, with U.S. citizen children, siblings, or spouses. These
16
See, e.g., Chicago Municipal code § 2-8-300; D.C. Code § 1-1011.01; Mass. Const. Amend.
art. CI, §§ 1, 2, arts. CIX, CXVII, CXIX; Nev. Const. art. IV, § 5, art. XV, § 13; Tex. Const. art.
3, § 26; Va. Code Ann. § 30-265; Vt. Const. Ch. II, §§ 13, 18, 73; Vt. Stat. tit. 17, § 1902; Wash.
Const. art. II, § 43; Wash. Rev. Code §§ 29A.76.010, 44.05.090.
17
Jeffrey S. Passel & D’Vera Cohn, U.S. Unauthorized Immigrant Total Dips to Lowest Level in
a Decade, Pew Research Center (Nov. 27, 2018), https://www.pewresearch.org/hispanic/wp-
content/uploads/sites/5/2019/03/Pew-Research-Center_2018-11-27_U-S-Unauthorized-
Immigrants-Total-Dips_Updated-2019-06-25.pdf.
32
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households are already less likely to respond to the census questionnaire; this Administration’s
question to the decennial census—have engendered substantial fear within these communities. 18
125. The COVID-19 pandemic has further hampered efforts to ensure that all people—
including hard-to-count populations—are counted. For example, the census relies upon non-
response follow up operations (NRFU) to contact potential respondents and increase the census
response rate. But NRFU operations were suspended and delayed during the pandemic, and the
Government Accountability Office has raised concerns that even when resumed, these efforts
apportionment base was announced just weeks before Census Bureau enumerators were finally
scheduled to go into the field to encourage households to respond to the census, 20 creating
18
See, e.g., Alexandra Schmidt, Citizenship question is gone. Michigan immigrants still distrust
the Census, (Mar. 2, 2020), https://www.bridgemi.com/michigan-government/citizenship-
question-gone-michigan-immigrants-still-distrust-census (noting ongoing “fear among
immigrants about what the government will do with information collected in the count”).
19
See U.S. Government Accountability Office, 2020 Census: COVID-19 Presents Delays and
Risks to Census Count https://www.gao.gov/products/GAO-20-551R#summary.
20
U.S. Census Bureau, 2020 Census Operational Adjustments Due to COVID-19,
https://2020census.gov/en/news-events/operational-adjustments-covid-19.html (last visited July
24, 2020).
33
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127. The announcement of Defendants’ decision was intended to promote fear and
deter participation in the census by immigrants and their families, including through the
President’s remarks that he “will not stand” for efforts to “conceal the number” of immigrants. 21
128. The Census Bureau has repeatedly emphasized that “[e]veryone counts,” citizens
and noncitizens alike. 22 But Defendants’ decision and actions to exclude undocumented
immigrants from the apportionment base do the opposite. Excluding undocumented immigrants
from the apportionment count communicates to immigrants that their census responses are less
129. Many federal programs rely on the population figures collected in the decennial
census to distribute federal funds among states and local governments. At least 320 federal
domestic financial assistance programs rely on census data to allocate money; in fiscal year
2016, these programs “allocated about $900 billion using census-derived data.” New York, 351
F. Supp. 3d at 596. These programs support essential services for Plaintiffs, including
healthcare, public education, social services, and infrastructure development. The reduction in
census participation caused by Defendants’ announcement that they will exclude undocumented
immigrants from the apportionment base will harm Plaintiffs by depriving them of their statutory
fair share of federal funding and removing crucial resources for important government services.
130. Finally, by deterring immigrants and their families from responding to the
apportionment base will degrade the quality of census data. As census self-response rates
21
President Donald Trump, Statement from the President Regarding Apportionment (July 21,
2020), https://www.whitehouse.gov/briefings-statements/statement-president-regarding-
apportionment/.
22
See, e.g., Census Bureau, Setting the Record Straight, https://2020census.gov/en/news-
events/rumors.html.
34
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decline, the quality of the data—including information relating to population subgroups and their
governmental functions,” including to draw school zones, deploy health care resources, and
make infrastructure decisions. Id. at 600. Defendants’ decision will therefore undermine
Plaintiffs’ interests in using accurate census data to perform critical governmental functions.
VI. Defendants have not identified any reliable method to accurately enumerate the
population of undocumented immigrants.
apportionment count. Just months ago, the Federal Government represented in separate litigation
that there is a “lack of accurate estimates of the resident undocumented population” on a state-
by-state basis. 23
132. Although a previous executive order suggests that the Census Bureau may rely on
administrative records to identify noncitizens, see 84 Fed. Reg. at 33,821, many noncitizens are
lawfully present; and administrative records cannot provide sufficiently reliable or accurate
information about whether noncitizens are undocumented, particularly for actual enumeration
and apportionment purposes. Indeed, administrative records are “weak in their coverage of
undocumented aliens do not have.” 24 The limited administrative records available with respect
23
Decl. of Census Bureau Senior Advisor Enrique Lamas, Defs.’ Supp. Rule 26(a)(1)
Disclosures and Rule 26(a)(2)(C) Disclosures, Alabama v. Dep’t of Commerce, No. 2:18-cv-
00772-RDP (N.D. Ala. Mar. 13, 2020).
24
John L. Czajka, Can Administrative Records Be Used to Reduce Nonresponse Bias?, 645
Annals Am. Acad. Pol. & Social Sci. 171, 175 (2013).
35
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acknowledged that determining immigration status from their records is “challenging,” given the
“the decentralized nature of admission and immigration information, as well as the lack of a
nationwide departure control system.” 25 DHS has acknowledged that time lags between
collecting and reporting data mean that “data accuracy issues may arise.” 26 Even when used in
134. Although the federal government has already suggested that they may resort to
Memorandum, the Census Bureau has not yet “formulated a methodology,” 27 and Defendants
have not articulated how such statistical modeling will comport with their constitutional
report that population to the President and to exclude that population from the tabulation of total
demonstrates that they have prejudged the decision, violates their statutory obligations to report
25
Department of Homeland Security, Privacy Impact Assessment for the Department of
Homeland Security Immigration-Related Information Sharing with the U.S. Census Bureau, 2,
11 (Dec. 20, 2019), https://www.dhs.gov/sites/default/files/publications/privacy-pia-dhs079-
sharingwithcensus-december2019.pdf.
26
Id. at 6.
27
Hansi Lo Wang (@hansilowang), Twitter (July 22, 2020, 10:58 AM),
https://twitter.com/hansilowang/status/1285952274410409985.
36
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total population, and confirms the irrational and arbitrary nature of their decision and actions to
exclude undocumented immigrants from the actual enumeration and apportionment base.
136. Plaintiffs incorporate by reference the allegations set forth in each of the
137. The Constitution requires that “Representatives shall be apportioned among the
several States according to their respective numbers, counting the whole number of persons in
each State.” U.S. Const. amend. XIV, § 2; see id. art. I, § 2, cl. 3.
138. Undocumented immigrants are persons. Plyler, 457 U.S. at 210 (“Whatever his
status under the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that
term.”).
apportionment base for the purpose of reapportionment of Representatives following the 2020
Census, as well as any action they take to implement or further that decision, violates the
140. Defendants’ violation causes ongoing harm to Plaintiffs and their residents.
141. Plaintiff States incorporate by reference the allegations set forth in each of the
37
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142. Under the equal protection component of the Due Process Clause of the Fifth
Amendment to the United States Constitution, the federal government cannot deny to any person
the equal protection of its laws. The Due Process Clause specifically prohibits the federal
government from discriminating against individuals on the basis of race, ethnicity, and national
these communities.
144. The highly unusual chronology of events, sharp departure from centuries of past
Defendants’ decision on Hispanics and immigrant communities of color further indicate that
Defendants intend to reduce political power, influence, and funding resources among Hispanic
146. Defendants’ violation causes ongoing harm to Plaintiff States and their residents.
147. Plaintiffs incorporate by reference the allegations set forth in each of the
148. The Tenth Amendment prohibits the federal government from coercing states and
apportionment count punishes Plaintiffs for refusing to assist in the enforcement of federal
immigration law, in an attempt to coerce Plaintiffs to change their policies. 85 Fed. Reg. at
44,680.
150. The Tenth Amendment requires the federal government to respect the equal
immigrants from the apportionment count impermissibly targets certain states for unfavorable
treatment because of their refusal to assist in the enforcement of federal immigration law. 85
152. Defendants’ violation causes ongoing harm to Plaintiffs and their residents.
153. Plaintiffs incorporate by reference the allegations set forth in each of the
154. The Administrative Procedure Act provides that the Court “shall” “hold unlawful
and set aside” agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not
apportionment base, as well as any action they take to implement or further that decision, is
arbitrary and capricious because it is contrary to the evidence before the agency and fails to
consider important aspects of the problem, including that Defendants lack data reliably to
39
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156. Defendants’ decision and any implementing actions they undertake are also not in
accordance with law because the Census Act requires the Secretary to tabulate and report to the
157. Defendants’ violation causes ongoing harm to Plaintiffs and their residents.
apportionment base following the 2020 Census, as well as any action they take to implement or
further that decision, is unauthorized by and contrary to the Constitution and laws of the United
States;
apportionment base following the 2020 Census is intentionally discriminatory in violation of the
equal protection component of the Due Process Clause of the Fifth Amendment;
3. Declare that Defendants’ decision and any implementing actions they take are
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law within the
4. Enjoin Defendants and all those acting on their behalf from excluding
undocumented immigrants from the apportionment base following the 2020 Census, or taking
5. Issue an order holding unlawful, vacating, and setting aside the decision to
exclude undocumented immigrants from the apportionment base, as well as any action taken to
40
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report to the President the total population by States under 13 U.S.C § 141(b) based solely on the
total number of persons in each State, including undocumented immigrants, without providing
pursuant to 2 U.S.C. § 2a(a) a statement of the whole number of persons in each State, and the
number of Representatives to which each State would be entitled under an apportionment of the
then existing number of Representatives by the method known as the method of equal
proportions, based on the total number of residents of each state, including undocumented
immigrants.
8. Award Plaintiffs their reasonable fees, costs, and expenses, including attorneys’
fees; and
9. Grant such other and further relief as the Court deems just and proper.
LETITIA JAMES
Attorney General of the State of New York
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Attorney for the State of Colorado Attorney for the State of Connecticut
42
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Attorneys for the Commonwealth of Virginia Peter Gonick, Deputy Solicitor General
Office of the Attorney General
PO Box 40100
Olympia, WA 98504-0100
[email protected]
Tel. (360) 753-6245
46
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LESLIE J. GIRARD
Monterey County Counsel
/s Leslie J. Girard
Leslie J. Girard, County Counsel
Susan K. Blitch, Assistant County Counsel
William M. Litt, Deputy County Counsel
Office of the County Counsel
County of Monterey
168 West Alisal St., 3d Floor
Salinas, CA 93901
[email protected]
[email protected]
Tel. (831) 755-5045
Fax (831) 755-5283
49
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Exhibit 1
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44679
VerDate Sep<11>2014 18:39 Jul 22, 2020 Jkt 250001 PO 00000 Frm 00003 Fmt 4705 Sfmt 4790 E:\FR\FM\23JYO0.SGM 23JYO0
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44680 Federal Register / Vol. 85, No. 142 / Thursday, July 23, 2020 / Presidential Documents
VerDate Sep<11>2014 18:39 Jul 22, 2020 Jkt 250001 PO 00000 Frm 00004 Fmt 4705 Sfmt 4790 E:\FR\FM\23JYO0.SGM 23JYO0
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Federal Register / Vol. 85, No. 142 / Thursday, July 23, 2020 / Presidential Documents 44681
(c) This memorandum is not intended to, and does not, create any right
or benefit, substantive or procedural, enforceable at law or in equity by
any party against the United States, its departments, agencies, or entities,
its officers, employees, or agents, or any other person.
Trump.EPS</GPH>
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