Shuttlesworth v Birmingham AL Petition for Removal

    No. 18-966

In  T he

Supreme Court of tfje fHntteb States!

D e pa r tm e n t  o f  C o m m e r c e , e t a l .,
Petitioners,

v.

Sta te  of N ew  Y o r k , e t a l .,
Respondents.

On Writ of Certiorari Before Judgment 
to the United States Court of Appeals 

for the Second Circuit

BRIEF OF AMICUS CURIAE NAACP LEGAL 
DEFENSE & EDUCATIONAL FUND, INC. IN 

SUPPORT OF RESPONDENTS

Sh e r r ilyn  A. Ifill  
Ja n a i S. N e lson  
Sa m u e l  Spit a l  
L eah  C. A d e n  
A a r o n  Su ssm a n  
J. Za c h e r y  M orris  
NAACP L egal  D efe n se  & 

E d u c a tio n a l  Fu n d , In c . 
40 Rector Street, 5th Floor 
New York, NY 10006 
(212) 965-2200

D a v id  J. Z im m e r  
Counsel of Record 

J o sh u a  J. B one  
G o o d w in  P r o c te r  LLP 
100 Northern Ave.
Boston, MA 02210
(617) 570-1000
dzim mer@goo dwinl a w. com
T iff a n y  M a h m o o d  
W ill ia m  U h r  
M a d e lin e  D iLa s c ia  
G o o d w in  P r o c te r  LLP

Counsel for Amicus Curiae
April 1, 2019



1

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE...............................1
INTRODUCTION AND SUMMARY OF

ARGUMENT...............................................................2
ARGUMENT.................................  4

I. Adding the Citizenship Status Question
would undermine racial equity by 
exacerbating the Black population 
undercount............................................................. 4

A. The census has historically
undercounted the Black population.............5

B. Inclusion of the Citizenship Status
Question in the census would 
particularly harm Black people..................10

C. A complete and accurate count is
necessary for racial equity.......................... 24

II. LDF and other civil rights organizations’
vast experience litigating under the Voting 
Rights Act confirms that the Citizenship 
Status Question is unnecessary to enforce 
Section 2 of the Act............................................. 30

CONCLUSION..............................................................37



11

TABLE OF AUTHORITIES

Page(s)

Cases

Ala. Legis. Black Caucus v. Alabama,
135 S. Ct. 1257 (2015)............................................1

Baldridge u. Shapiro,
455 U.S. 345 (1982)................................................ 24

Barnett v. City of Chicago,
141 F.3d 699 (7th Cir. 1998)................................. 34

Beer v. United States,
425 U.S. 130 (1976)....................................................1

Benavidez v. City of Irving, Tex.,
638 F. Supp. 2d 709 (N.D. Tex. 2009).................. 36

Bush v. Vera,
517 U.S. 952 (1996)....................................................1

Centro Presente v. Trump,
332 F. Supp. 3d 393 (D. Mass. 2018)................... 21

Chisom v. Roemer,
501 U.S. 380 (1991)....................................................1

Corbett v. Sullivan,
202 F. Supp. 2d 972 (E.D. Mo. 2002)................... 34

Easley v. Cromartie,
532 U.S. 234 (2001)....................................................1



Evenwel v. Abbott,
136 S. Ct. 1120 (2016).................................... passim

Georgia State Conference NAACP v.
Fayette Cnty. Bd. of Commr’s,
118 F. Supp. 3d 1338 (N.D, Ga. 2015)................. 33

Georgia v. Ashcroft,
539 U.S. 461 (2003)..................................................1

Gomillion v. Lightfoot,
364 U.S. 339 (1960)..................................................2

Houston Lawyers’ Ass’n u. Attorney Gen. 
of Texas,
501 U.S. 419 (1991).................................................. 1

Kirksey v. Bd. of Supervisors,
554 F.2d 139 (5th Cir. 1977)...................................2

League of United Latin Am. Citizens v.
Clements,
999 F.2d 831 (5th Cir. 1993)....................................1

League of United Latin Am. Citizens v.
Perry,
548 U.S. 399 (2006).....................................  1, 32, 34

NAACP v. Bureau of Census,
No. PWB-18-891, 2019 WL 355743 
(D. Md. Jan. 29, 2019)....................................... 6, 17

NAACP v. U.S. Dep’t of Homeland Sec.,
No. DKC 18-0239, 2019 WL 1126386 
(D. Md. Mar. 12, 2019)

iii

21



IV

Negron v. City of Miami Beach,
113 F.3d 1563 (11th Cir. 1997).............................34

New York v. U.S. Dep’t of Commerce,
351 F. Supp. 3d 502 (S.D.N.Y. 2019)............passim

New York v. U.S. Dep’t of Commerce,
315 F. Supp. 3d 766 (S.D.N.Y. 2018)...................... 34

Nw. Austin Mun. Util. Dist. No. One u.
Holder,
557 U.S. 193 (2009)....................................................1

Ramos v. Nielsen,
336 F. Supp. 3d 1075 (N.D. Cal.
2018)........................................................................... 21

Saget v. Trump,
No. l:18-cv-01599, 345 F. Supp. 3d
287 (E.D.N.Y. Dec. 14, 2018).................................. 21

Schnell v. Davis,
336 U.S. 933 (1949)................................................... 2

Shaw v. Hunt,
517 U.S. 899 (1996)....................................................1

Shelby Cnty. v. Holder,
570 U.S. 529 (2013)....................................................1

Smith v. Allwright,
321 U.S. 649 (1944)................................................... 2

State of California v. Ross,
Nos. 18-cv-01865-RS, 18-cv-02279- 
RS, 2019 WL 1052434 (N.D. Cal.
Mar. 6, 2019).................................................... .passim



V

Terrebonne Parish Branch NAACP v.
Jindal,
274 F. Supp. 3d 395 (M.D. La. 2017)................... 33

Terry v. Adams,
345 U.S. 461 (1953)................................................... 2

Thornburg v. Gingles,
478 U.S. 30 (1986).......................................  1, 31, 32

United States v. Hays,
515 U.S. 737 (1995)....................................................1

Utah v. Evans,
536 U.S. 452 (2002)................................................... 6

Wesberry v. Sanders,
376 U.S. 1 (1964)....................................................... 6

White v. Regester,
422 U.S. 935 (1975)................................................... 2

Wisconsin v. City of New York,
517 U.S. 1 (1996)............................................  passim

Zimmer v. McKeithen,
485 F.2d 1297 (5th Cir. 1973).................................. 2

Statutes

13U.S.C. § 141(c)...........................................................25

U.S. Constitution

U.S. Const., art. I, § 2, cl. 3 ...................................... 5, 6



V I

U.S. Const, amend. X III................................................. 6

U.S. Const, amend. XIV, § 2 ...........................................6

Other Authorities

2020 Census Fact Sheet, Census Accu­
racy and the Undercount: Why It 
Matters; How It’s Measured, Funders 
Comm, for Civic Participation (2017)......................9

Agency History - U.S. Census Bureau,
Census.Gov................................................................. 7

American Community Survey Design 
and Methodology, Chapter 11,
Weighting and Estimation, U.S. Cen­
sus Bureau (Rev. Dec. 2010)...........................35, 36

Monica Anderson, A Rising Share of the 
U.S. Black Population Is Foreign 
Born, Pew Research Ctr. (Apr. 9,
2015)................................................................... 13, 14

Monica Anderson & Gustavo Lopez, Key 
facts about black immigrants in the 
U.S., Pew Research Ctr. (Jan. 24,
2018)..........................................................................13

Randy Capps, Kristen McCabe, & Mi­
chael Fix, Diverse Streams: African 
Migration to the United States, Mi­
gration Policy Institute (Apr. 2012)..................... 16



Chand et al., Multi-Year Averages From 
a Rolling Sample Survey, U.S. Cen­
sus Bureau (2000).............................................33, 35

Maryann M. Chapin, U.S. Census Bu­
reau, 2020 Census: Counting Every­
one Once, Only Once, and in the 
Right Place................................................................ 14

Citizen Voting Age Population by Race 
and Ethnicity, Census.gov (Feb. 1,
2018)...........................................................................35

Lynette Clemetson, Homeland Security 
Given Data on Arab-Americans, N.Y.
Times (July 30, 2004)............................................. 19

Josh Dawsey, Trump derides protections 
for immigrants from ‘shithole’ 
countries, Wash. Post (Jan. 12, 2018)................... 21

Dep’t of Justice, Smart on Crime: Re­
forming the Criminal Justice System 
for the 21st Century (Aug. 2013)............................29

Melissa Etehad, The 2020 census could 
undercount 1 million kids -  which 
means less money for California 
schools, L.A. Times (July 9, 2018)......................... 27

David A. Graham, The Unpredictable 
Political Effects of 2020 Census 
Tinkering, The Atlantic (June 25,
2018)

vii

8



vm
John Iceland & Kyle Anne Nelson, The 

Residential Segregation of Mixed- 
Nativity Married Couples, Demogra­
phy Vol. 47, No. 4, 869-93 (Nov. 2010)................ 16

Samuel Issacharoff & Allan J. Lichtman,
The Census Undercount and Minority
Representation: The Constitutional 
Obligation of the States to Guarantee 
Equal Representation, 13 Rev. Litig.
1 (1993)........................................................................ 7

Jolie Lee, Still apart: Map shows states 
with most-segregated schools, USA 
Today (May 15, 2014).............................................,27

Letter from Asian Americans Advancing 
Justice to Jennifer Jessup (Aug. 7,
2018)........................................................................... 19

Letter from Mexican American Legal 
Defense & Educ. Fund to Jennifer 
Jessup (Aug. 7, 2018)..................................... passim

Letter from Native American Voting 
Rights Coalition to Jennifer Jessup 
(Aug. 7, 2018)..............................................33, 35, 37

McGeeney et al., 2020 Census Barriers,
Attitudes, and Motivators Study
Survey Report (2019)............................................... 14

Memorandum from the U.S. Census Bu­
reau, Ctr. For Survey Measurement 
to Assoc. Directorate for Research &
Methodology (Sept. 20, 2017)..................................22



IX

Mikelyn Meyers, Respondent 
Confidentiality Concerns and 
Possible Effects on Response Rates 
and Data Quality for the 2020 
Census, U.S. Census Bureau (Nov. 2,
2017)........................................................................... 18

Migration Policy Institute, A Demo­
graphic Profile of Black Caribbean 
Immigrants in the United States 
(Apr. 2012)................................................................ 14

Muslims in America: Immigrants and 
those born in U.S. see life differently 
in many ways, Pew Research Ctr.
(Apr. 17, 2018)..........................................................23

National Fair Housing Alliance, Zip 
Code Inequality: Discrimination by 
Banks in the Maintenance of Homes 
in Neighborhoods of Color (Aug. 27,
2014)...........................................................................28

Ashley Nellis, The Sentencing Project,
The Color of Justice: Racial and Eth­
nic Disparity in State Prisons 3 (Jun.
2016)...........................................................................29

NYU Law Immigrant Rights Clinic, The 
State of Black Immigrants Part 1:
Statistical Portrait of Black Immi­
grants in the United States.......................... passim



X

NYU Law Immigrant Rights Clinic, The 
State of Black Immigrants Part 2:
Black Immigrants in the Mass Crim­
inalization System.................................................. 23

Race and Ethnicity in the 2020 Census:
Improving Data to Capture a Multi­
ethnic America, The Leadership Con­
ference & Educ. Fund (Nov. 2014)............... .passim

Michael D. Shear & Julie Hirschfeld 
David, Stoking Fears, Trump Defied 
Bureaucracy to Advance Immigration 
Agenda, N.Y. Times (Dec. 23, 2017)......................21

Peter Skerry, Counting on the Census?:
Race, Group Identity and the Eva­
sion of Politics (2000)................................................ 9

Katy Steinmetz, The Debate Over a New 
Citizenship Question Isn’t the First 
Census Fight. Here’s Why the Count 
is Controversial, Time (Mar. 27,
2018)........................................................................... 18

Christopher M. Taylor, Vote Dilution 
and the Census Undercount: A State- 
by-State Remedy, 94 Mich. L. Rev.
1098 (1996)................................................................. 6



XI

Testimony of Lawyers’ Committee for 
Civil Rights Under Law Submitted 
by Kristen Clark to the U.S. House of 
Representatives Judiciary Commit­
tee Subcommittee on the Constitu­
tion and Civil Justice Hearing on 
“Questions Regarding the U.S. Cen­
sus” (June 8, 2018).......................................... 33, 34

The Leadership Conference Educ. Fund,
Factsheet: Will Your Kids Count?
Young children and their families in 
the 2020 census (last updated Apr.
17, 2018)...................................................................28

Why We Ask About... - Place of Birth,
Citizenship, Year of Entry -American
Community Survey, U.S. Census
Bureau, Census.Gov...............................................4

David R. Williams & James S. Jackson,
Race /Ethnicity and the 2000 Census: 
Recommendations for African Ameri­
can and Other Black Populations in 
the United States, Am. J. Public 
Health, Vol. 90, No. 11, 1728-30 
(Nov. 2000) 15



INTEREST OF AMICUS CURIAE1
Amicus, the NAACP Legal Defense and Education­

al Fund, Inc. (“LDF”), is a non-profit, non-partisan 
law organization established under the laws of New 
York to assist Black people and other people of color 
in the full, fair, and free exercise of their constitu­
tional and statutory rights. Founded in 1940 under 
the leadership of Thurgood Marshall, LDF focuses on 
eliminating racial discrimination in education, eco­
nomic justice, criminal justice, and political partici­
pation, using various tools including census data.

LDF has been involved in numerous precedent­
setting cases relating to minority political represen­
tation and voting rights before state and federal 
courts. See, e.g., Evenwel u. Abbott, 136 S. Ct. 1120 
(2016); Ala. Legis. Black Caucus v. Alabama, 135 
S. Ct. 1257 (2015); Shelby Cnty. u. Holder, 570 U.S. 
529 (2013); Nw. Austin Mun. Util. Dist. No. One v. 
Holder, 557 U.S. 193 (2009); League of United Latin 
Am. Citizens v. Perry, 548 U.S. 399 (2006); Georgia u. 
Ashcroft, 539 U.S. 461 (2003); Easley v. Cromartie, 
532 U.S. 234 (2001); Bush v. Vera, 517 U.S. 952 
(1996); Shaw v. Hunt, 517 U.S. 899 (1996); United 
States v. Hays, 515 U.S. 737 (1995); League of United 
Latin Am. Citizens v. Clements, 999 F.2d 831 (5th 
Cir. 1993) (en banc); Chisom v. Roerner, 501 U.S. 380 
(1991); Houston Lawyers’ Ass’n v. Attorney Gen. of 
Texas, 501 U.S. 419 (1991); Thornburg v. Gingles, 
478 U.S. 30 (1986); Beer v. United States, 425 U.S.

1

1 Counsel for amicus curiae state that no counsel for a party 
authored this brief in whole or in part and that no person other 
than amicus curiae, its members, or its counsel made a mone­
tary contribution to the preparation or submission of this brief. 
The parties filed blanket consents to the filing of amici briefs.



2

130 (1976); White v. Regester, 422 U.S. 935 (1975) 
(per curiam); Gomillion v. Lightfoot, 364 U.S. 339 
(1960); Terry v. Adams, 345 U.S. 461 (1953); Schnell 
v. Davis, 336 U.S. 933 (1949) (per curiam); Smith v. 
Allwright, 321 U.S. 649 (1944); Kirksey v. Bd. of Su­
pervisors, 554 F.2d 139 (5th Cir. 1977); Zimmer v. 
McKeithen, 485 F.2d 1297 (5th Cir. 1973). Specifical­
ly, LDF has successfully raised claims under the Vot­
ing Rights Act of 1965, its amendments, and the U.S. 
Constitution to defend and protect minority voting 
rights using census data—without the inclusion of a 
citizenship status question on the decennial census— 
for over 50 years.

LDF has a significant interest in ensuring that the 
protections of the U.S. Constitution and the Voting 
Rights Act are properly enforced and that Black 
communities are fairly and fully counted in the de­
cennial censuses.

INTRODUCTION AND SUMMARY 
OF ARGUMENT

Since its inception, the United States census has 
undercounted the Black population of the United 
States both to their detriment and the detriment of 
the U.S. Constitution’s mandate of “actual Enumera­
tion.” The disproportionate undercounting of Black 
people, which has persisted through the most recent 
censuses, has enormous practical implications. Ac­
curate census data is essential to the equitable allo­
cation of political representation and government re­
sources. Any revision to the methods for conducting 
the census should seek to remedy the racial disparity 
in enumeration, and certainly not exacerbate it.



3

Yet exacerbating that racial disparity would be 
precisely the result of starting—for the first time in 
70 years—to ask respondents about their citizenship 
status on the decennial census questionnaire (the 
“Citizenship Status Question”). As the district court 
recognized, that question is likely to chill the partici­
pation of vulnerable immigrant communities—which 
Black people are both a part of and live in proximity 
to—particularly given the hostile rhetoric that char­
acterizes contemporary immigration policy and esca­
lated efforts to identify and deport potentially re­
movable immigrants. Indeed, given that the makeup 
of the immigrant population includes a sizeable pop­
ulation of Black immigrants and noncitizens, de­
creased census participation would almost certainly 
impact the already significant and disproportionate 
undercount of the Black population, heightening the 
inequality in representation and access to resources 
that necessarily accompanies it.

The Government attempts to justify the addition of 
the Citizenship Status Question with the remarkable 
assertion that it would actually help Black people 
and other people of color because it is purportedly 
necessary to enforce Section 2 of the Voting Rights 
Act of 1965. As one of the organizations with the 
most experience litigating Section 2 claims, LDF can 
assure this Court that this assertion is unequivocally 
wrong. LDF has successfully brought Section 2 suits 
for decades, and these voting rights cases have never 
been hampered by the absence of citizenship data 
drawn from the decennial census. Indeed, as the dis­
trict court found, other available data is more accu­
rate for these purposes than the new census data 
sought through the inclusion of the Citizenship Sta­
tus Question. Fellow civil rights groups and the Jus­



4

tice Department itself (until 2017) have consistently 
agreed that they do not view a citizenship status 
question as necessary to protect minority voting 
rights. In fact, the addition of the question is likely 
to have the exact opposite effect.

Given the Government’s implausible and un­
substantiated justification for the addition of the Cit­
izenship Status Question on the decennial census, 
and the harms that it would cause to Black and other 
communities, this Court should affirm the judgment 
of the district court.

ARGUMENT

I. Adding the Citizenship Status Question 
would undermine racial equity by exacer­
bating the Black population undercount.

The addition of a question about citizenship status 
to the 2020 decennial census questionnaire threatens 
to exacerbate a long and well-documented record of 
undercounting the Black population.2 Black people

2 Between 1970 and 2000, the U.S. Census Bureau used two 
questionnaires. Most households received a short-form ques­
tionnaire, while selected households received a long-form ques­
tionnaire with additional questions. The 2010 Census had just 
one questionnaire consisting of ten questions. See Question­
naires - History - U.S. Census Bureau, Census.Gov https:// 
www.census.gov/history/www/through_the_decades/questionnai 
res/. Questions concerning citizenship first appeared in the 
long-form 1820 Census, questions regarding place of birth first 
appeared in the long-form 1850 Census, and questions regard­
ing year of entry first appeared in the long-form 1890 Census. 
These questions were moved to the American Community Sur­
vey in 2005 when it replaced the decennial census long form. 
See Why We Ask About... - Place of Birth, Citizenship, Year of 
Entry -  American Community Survey, U.S. Census Bureau,

http://www.census.gov/history/www/through_the_decades/questionnai


5

will be both directly and indirectly harmed as noncit­
izens, as immigrants, and/or otherwise as members 
of hard-to-count communities.

The census is far more than a routine bureaucratic 
exercise. Its count of the national population shapes 
numerous critical decisions, including the allocation 
of elected representatives to States, the development 
of congressional and state legislative districts, and 
the distribution of billions of dollars of federal and 
state funds. Undercounting the Black population di­
rectly deprives Black people of equal political repre­
sentation and equal access to government services. 
In short, the systemic undercount facilitates and 
amplifies race-based discrimination. Thus, any 
change to the census that threatens to increase this 
historical and ongoing record of racial undercounting 
should be subject to intensive scrutiny.

A. The census has historically undercounted 
the Black population.

The decennial census traces back to the shameful 
era of chattel slavery and the Constitutional Conven­
tion of 1787, when the Framers established that 
seats in the House of Representatives should be ap­
portioned to States on the basis of total population. 
See U.S. Const., art. I, § 2, cl. 3; see also Evenwel u. 
Abbott, 136 S. Ct. 1120, 1127 (2016) (outlining this 
history). The Framers understood that this appor­
tionment created incentives for manipulating popu­
lation figures, and “that the calculation of popula­
tions could be and often were skewed for political or

Census.Gov, https://www.census.gov/acs/www/about/why-we- 
ask-each-question/citizenship/.

https://www.census.gov/acs/www/about/why-we-ask-each-question/citizenship/
https://www.census.gov/acs/www/about/why-we-ask-each-question/citizenship/


6

financial purposes.” Utah v. Evans, 536 U.S. 452, 
500 (2002). To limit the opportunity for population 
distortion, and in an attempt to increase the accura­
cy of population counts, the Framers required that 
Congress “direct” an “Enumeration” of the entire 
population at least every ten years. See U.S. Const, 
art. I, § 2, cl. 3; see also Wesberry v. Sanders, 376 
U.S. 1, 13-14 (1964).

Shortly after the first U.S. census, the Framers be­
came concerned that undercounting might have 
marred the results. See Christopher M. Taylor, Vote 
Dilution and the Census Undercount: A State-by- 
State Remedy, 94 Mich. L. Rev. 1098, 1101 (1996). 
But these concerns did not extend to the undercount­
ing of Black people. At that time, enslaved Black 
people were treated as only three-fifths of a person 
and excluded by law from representation. See 
NAACP u. Bureau of Census, No. PWB-18-891, 2019 
WL 355743, at *1, *4 (D. Md. Jan. 29, 2019).

It was not until the end of the Civil War that the 
links between census undercounting and race began 
to emerge clearly. During the Reconstruction era, 
the country ratified the Thirteenth Amendment, 
which nullified the distinction between “free Per­
sons” and “all other Persons” in the Census Clause, 
and the Fourteenth Amendment, which eliminated 
the “three-fifths” calculation in the Census Clause. 
U.S. Const, amend. XIII, amend. XIV, § 2. Although 
these changes and others provided for the political 
representation of Black people, the census quickly 
proved an imperfect tool for protecting these new 
rights.

In the 1870 census, the first after the enactment of 
the Thirteenth and Fourteenth Amendments, Black



7

people were “egregiously undercounted . . . but 
lacked the political clout to secure a recount.” Sam­
uel Issacharoff & Allan J. Lichtman, The Census 
Undercount and Minority Representation: The Con­
stitutional Obligation of the States to Guarantee 
Equal Representation, 13 Rev. Litig. 1, 6 (1993). In­
stability in the American South made it extremely 
difficult to accurately administer the census. See 
Margo J. Anderson, The American Census: A Social 
History 89 (1988). Despite the undercount of the 
Black population by approximately 10 percent, there 
was no significant push for a recount because the 
South was “already reaping a bonus in congressional 
seats and electoral votes.” Id. at 89-90.

Although policymakers were thus aware of system­
ic racial undercounting as early as the 1870 census,3

3 Policymakers during this period exacerbated the harms of ra­
cial undercounting by ignoring census results that demonstrat­
ed racial inequalities. For instance, in the opening half of the 
Twentieth Century, the census showed “a massive population 
shift away from rural areas and toward suburban and urban 
communities” as Black Americans, alongside many other 
groups, migrated to cities in the Northeast, the Midwest, and 
the West. Evenwel, 136 S. Ct. at 1123. Representatives from 
rural districts, however, “benefited from malapportionment 
[and] had scant incentive to adopt new maps that might put 
them out of office.” Id. Thus, “many States ran elections into 
the early 1960s based on maps drawn to equalize each district’s 
population as it was composed around 1900,” depriving racially 
and ethnically diverse cities of equal representation, while con­
centrating power in less populous, white regions. See id.; see 
also Agency History - U.S. Census Bureau, Census.Gov, 
https://www.census.gov/history/www/census_then_now. It was 
not until this Court’s one-person, one-vote cases in the 1960s 
that States were finally forced to remedy a discrimination that 
the census had long made plain. Evenwel, 136 S. Ct. at 1124 
(noting that the one-person, one-vote cases “instructed that ju­

https://www.census.gov/history/www/census_then_now


8

the Census Bureau only began documenting the cen­
sus undercount—including with respect to the Black 
population—following the 1940 census. The extent 
of the undercount became impossible to ignore when 
the number of Black men who registered to fight in 
World War II seemed implausibly large in light of 
the total number of Black men counted in the census. 
See David A. Graham, The Unpredictable Political 
Effects of 2020 Census Tinkering, The Atlantic (June 
25, 2018).4 The Census Bureau ultimately deter­
mined that the undercount for the entire population 
in the 1940 census was 5.4 percent, but that the un­
dercount was only 5.0 percent for the white popula­
tion, as compared to 8.4 percent for the Black popu­
lation. Wisconsin v. City of New York, 517 U.S. 1, 7 
(1996).

This 3.4 percent disparity between the census un­
dercount rates for the Black and white populations 
widened over time. For example, by 1980, while the 
overall population undercount had shrunk to an es­
timated 1.2 percent, the undercount for the Black 
population was 3.7 percent higher than the under - 
count for the non-Black population. See 1980 Over­
view -  History -  U.S. Census Bureau, Census.Gov.5 
In the 1990 census, the disparity between the under­
count rates for the Black and white populations in­
creased yet again to 4.4 percent. See Peter Skerry,

risdictions m ust. . . regularly reapportion districts [based on 
up-to-date data] to prevent malapportionment”).
4 Available at https://www.theatlantic.com/politics/archive/2018/ 
06/the-unpredictable-political-effects-of-trumps-census- 
moves/563645/.
5 Available at https://www.census.gov/history/www/through_ 
the_decades/overview/1980.html.

https://www.theatlantic.com/politics/archive/2018/
https://www.census.gov/history/www/through_


9

Counting on the Census?: Race, Group Identity and 
the Evasion of Politics 82 (2000). Most recently, in 
2010, the census failed to count over 800,000 Black 
people (2.1 percent), while overcounting non- 
Hispanic white people by 0.8 percent.6 See Census 
Bureau Releases Estimates of Under count and Over- 
count in the 2010 Census -  2010 Census -  Newsroom 
-  U.S. Census Bureau, Census.Gov (May 22, 2012).7

As explained at pp. 25-26, infra, the persistent un­
dercount of the Black population has dramatically 
undermined the quality of political representation for 
Black people, as well as their access to opportunities 
and civil rights protections more generally. These 
detrimental effects are compounded by the gap be­
tween the Black population undercount and the 
white popidation overcount, which results in an in­
equitable distribution of political and economic re­
sources, harming undercounted communities while 
simultaneously over-resourcing overcounted commu­
nities. See 2020 Census Fact Sheet, Census Accura­
cy and the Undercount: Why It Matters; How It’s 
Measured, Funders Comm, for Civic Participation 2 
(2017) (explaining the differential undercount in the 
2010 census).8

6 Specific events that happen shortly before a decennial census, 
such as the 2008 economic crisis, disproportionately harm peo­
ple of color and can exacerbate the undercount.
7 Available at https://www.census.gov/newsroom/releases/ 
archives/2010_census/cbl2-95.html.
8 Available at https://funderscommittee.org/wp-content/uploads/ 
2017/01/FCI2020-FactSheet-Census-Accuracy-Undercount- 
Fall2016.pdf.

https://www.census.gov/newsroom/releases/
https://funderscommittee.org/wp-content/uploads/


10

The attempt to add the Citizenship Status Ques­
tion to the decennial census is the latest chapter in a 
long history of manipulation of the census that has 
disadvantaged Black communities. Based on the 
false and pretextual claim that current census data 
is insufficient to enforce Section 2 of the Voting 
Rights Act, as the district court found, Petitioners 
seek to add a question that, as discussed infra, will 
fail to produce more accurate data while further 
harming already undercounted communities and 
benefiting overcounted communities. See New York 
v. U.S. Dep’t of Commerce, 351 F. Supp. 3d 502, 516, 
635-36, 651-54, 660-64 (S.D.N.Y. 2019). The decen­
nial census should be a snapshot of the present, 
while the Citizenship Status Question is a reflection 
of a regrettable past.

B. Inclusion of the Citizenship Status Ques­
tion in the census would particularly 
harm Black people.

Adding the Citizenship Status Question threatens 
to deepen the current and historical census under­
count of the Black population generally, and of the 
Black immigrant and noncitizen populations specifi­
cally. These groups are already recognized as hard- 
to-count populations. Given reasonable fears about 
the abuse of census data to facilitate racially discrim­
inatory immigration enforcement, adding the Citi­
zenship Status Question would further chill census 
participation rates among Black immigrant and 
noncitizen persons. And given the prevalence of im­
migrant-adjacent and mixed-citizenship-status Black 
families and communities, these chilling effects 
would have broad implications for Black people in 
the United States more generally. Thus, adding the



11

Citizenship Status Question would make an accurate 
count of the Black population even more difficult to 
achieve, depriving Black people of vital political and 
socio-economic opportunities.

1. As explained in more detail below, adding the 
Citizenship Status Question would likely have a 
negative effect on census response rates for the Black 
population generally, and for the Black immigrant 
and noncitizen populations specifically. Historically 
and through the most recent census, the Census Bu­
reau has struggled to enumerate hard-to-count popu­
lations, including Black people generally, as dis­
cussed below, as well as immigrant people, nonciti­
zen people, and other subgroups of which Black peo­
ple are an appreciable part. Approximately 42 per­
cent of Black immigrant persons do not hold U.S. cit­
izenship. See infra at 13. The district court 
acknowledged Census Bureau findings concerning 
the overlap between these hard-to-count subgroups 
and those unlikely to respond to the census because 
of the Citizenship Status Question. See New York, 
351 F. Supp. 3d at 515; see also State of California v. 
Ross, Nos. 18-cv-01865-RS, 18-cv-02279-RS, 2019 
WL 1052434, at *11 (N.D. Cal. Mar. 6, 2019) (“Cen­
sus Bureau research shows that there is ‘substantial 
overlap’ between these hard-to count subgroups and 
those households most likely not to respond to the 
2020 Census because of the citizenship question.” 
(internal citation omitted)). Specifically, the district 
court found that the inclusion of a “citizenship ques­
tion will cause a significant differential decline in 
self-response rates among noncitizen households.” 
New York, 351 F. Supp. 3d at 582. Moreover, the 
district court found that efforts to remediate the un­
dercount would not work and may in fact exacerbate



the differential undercount of noncitizens. Id. at 
585-86.

This significant decline among noncitizen commu­
nities is compounded by the national political envi­
ronment. As the district court recognized, “a higher 
level of concern about using citizenship data for en­
forcement purposes . . . could also exacerbate the ef­
fects of adding a citizenship question,” (id. at 579 (in­
ternal citation omitted)), reducing response rates for 
Black immigrants for the reasons discussed at pp. 
17-24, infra. See also Ross, 2019 WL 1052434, at *2 
(“ [A] significant differential undercount, particularly 
impacting noncitizen . . . communities, will result 
from the inclusion of a citizenship question on the 
2020 Census, compounded by macro-environmental 
factors arising out of the national immigration de­
bate.”). Indeed, even before consideration of the Citi­
zenship Status Question, there had already been 
documented distrust of the census among immigrant 
communities and people of color, including confiden­
tiality concerns, as discussed at pp. 17-19, infra. The 
Citizenship Status Question would only deepen this 
distrust.

2. The effects of the Citizenship Status Question 
on Black communities must be evaluated in light of 
the substantial Black immigrant and noncitizen 
populations, which already have particularly low 
census response rates. The number of Black immi­
grant persons in the United States has increased 
significantly in recent decades. See NYU Law Immi­
grant Rights Clinic, The State of Black Immigrants 
Part 1: Statistical Portrait of Black Immigrants in 
the United States 10 [hereinafter The State of Black

12



13

Immigrants Part l] .9 Approximately one-in-ten 
Black people in the United States are immigrants. 
See Monica Anderson & Gustavo Lopez, Key facts 
about black immigrants in the U.S., Pew Research 
Ctr. (Jan. 24, 2018).10 Of this population, approxi­
mately 42 percent do not hold U.S. citizenship, and 
approximately 15 percent are undocumented. See id. 
Black immigrants have been estimated to comprise 
8.7 percent of the overall foreign-born population in 
the United States, and approximately 7.2 percent of 
the noncitizen foreign-born population. See The 
State of Black Immigrants Part 1, supra, at 11. 
Black immigrants are largely concentrated in partic­
ular communities clustered around metropolitan ar­
eas. See id. In the New York metropolitan area, for 
example, Black immigrants make up approximately 
28 percent of the Black population. In the Miami 
metropolitan area, approximately a third of the 
Black population is comprised of immigrants. See 
Monica Anderson, A Rising Share of the U.S. Black 
Population Is Foreign Born, Pew Research Ctr. (Apr. 
9, 2015)11 [hereinafter Anderson Pew Research Ctr.]; 
see also Migration Policy Institute, A Demographic 
Profile of Black Caribbean Immigrants in the United 
States (Apr. 2012) (noting that in 2007, the majority

9 Available at http://www.stateofblackimmigrants.com/assets/ 
sobi-fullreport-jan22.pdf.
10 Available at https://www.pewresearch.org/fact-tank/2018/ 
01/24/key-facts-about-black-immigrants-in-the-u-s/.
11 Available at https://www.pewsocialtrends.org/2015/04/09/a- 
rising-share-of-the-u-s-black-population-is-foreign-born/.

http://www.stateofblackimmigrants.com/assets/
https://www.pewresearch.org/fact-tank/2018/
https://www.pewsocialtrends.org/2015/04/09/a-rising-share-of-the-u-s-black-population-is-foreign-born/
https://www.pewsocialtrends.org/2015/04/09/a-rising-share-of-the-u-s-black-population-is-foreign-born/


of all Black Caribbean immigrants lived in New York 
and Florida).12

The Black immigrant population is particularly 
vulnerable to census undercounting. Not only are 
racial and ethnic minority populations generally un­
dercounted, but the Black immigrant population is 
disproportionately likely to belong to other groups 
that the Census Bureau has identified as “hard-to- 
count,” including non-English speakers,13 undocu­
mented immigrants, low-income persons, people who 
distrust the government,14 and racial and ethnic mi­
norities.15 See Maryann M. Chapin, U.S. Census Bu­
reau, 2020 Census: Counting Everyone Once, Only

14

12 Available at https://www.migrationpolicy.org/research/CBI- 
demographic-profile-black-caribbean-immigrants.
13 Roughly a quarter of Black immigrant people ages five and 
older are not proficient in English. See Anderson Pew Research 
Ctr.
14 Census Bureau research has found that “participation in the 
census could be affected by trust in the government, especially 
the Federal government,” and has observed such distrust at 
high levels among non-Hispanic Black people. See McGeeney et 
al., 2020 Census Barriers, Attitudes, and Motivators Study 
Survey Report 47-48 (2019), available at https://www2.census 
,gov/programs-surveys/decennial/2020/program-management/ 
final-analysis-reports/2020-report-cbams-study-survey.pdf.
15 Twenty percent of Black immigrants live below the poverty 
line, and Black immigrants have the highest unemployment 
and joblessness rates among all immigrant groups. See NYU 
Law Immigrant Rights Clinic, The State of Black Immigrants 
Part 1: Statistical Portrait of Black Immigrants in the United 
States 12-13, http://www.stateofblackimmigrants.com/assets/ 
sobi -fullreport-j an2 2. p df.

https://www.migrationpolicy.org/research/CBI-demographic-profile-black-caribbean-immigrants
https://www.migrationpolicy.org/research/CBI-demographic-profile-black-caribbean-immigrants
https://www2.census
http://www.stateofblackimmigrants.com/assets/


15

Once, and in the Right Place 42.16 Thus, even com­
pared to the U.S. Black population as a whole, the 
Black immigrant population—including the undocu­
mented Black immigrant population—faces a sub­
stantial risk of being undercounted by the census. 
See, e.g., David R. Williams & James S. Jackson, 
Race/Ethnicity and the 2000 Census: Recommenda­
tions for African American and Other Black Popula­
tions in the United States, Am. J. Public Health, Vol. 
90, No. 11, 1728-30 (Nov. 2000) (noting the concerns 
of experts that existing estimates of the foreign-born 
Black population, and estimates of Black people with 
foreign parentage, are too low).17 It is therefore 
hardly surprising that areas with particularly large 
Black immigrant populations, such as New York City 
(particularly Kings County), have persistently low 
census response rates. See, e.g., Census 2020 Hard 
to Count Map, Mapping Hard to Count (HTC) Com­
munities for a Fair and Accurate 2020 Census.18

These low census response rates—and the result­
ing census undercount for these communities—affect 
not just Black immigrant and noncitizen populations 
specifically, but also the Black population in the 
United States more generally. Significant numbers 
of non-immigrant Black people live in or near these 
hard-to-count immigrant and noncitizen communi­
ties. See Randy Capps, Kristen McCabe, & Michael

16 Available at https://www2.census.gov/programs-surveys/ 
decennial/2020/program-management/pmr-materials/10-19- 
2018/pmr-hard-to-count-2018-10- 19.pdf.
17 Available at https://aiph.aphapublications.org/doi/pdf/10.2105 
/AJPH.90.11.1728.
18 Available at https://www.censushardtocountmaps2020.us/.

https://www2.census.gov/programs-surveys/
https://aiph.aphapublications.org/doi/pdf/10.2105
https://www.censushardtocountmaps2020.us/


16

Fix, Diverse Streams: African Migration to the Unit­
ed States, Migration Policy Institute 11-12 (Apr. 
2012) (finding that Black African immigrants resided 
in a heavily concentrated handful of areas, with dis­
tribution largely mirroring that of the overall Black 
population in the United States)19; John Iceland & 
Kyle Anne Nelson, The Residential Segregation of 
Mixed-Nativity Married Couples, Demography Vol. 
47, No. 4, 869-93, 887 (Nov. 2010) (finding that for­
eign-born and mixed-nativity Black households expe­
rienced high levels of segregation from non-Black ra­
cial and ethnic groups in metropolitan regions)20; see 
also Ross, 2019 WL 1052434, at *9 (noting the find­
ing that “the citizenship question will cause a signifi­
cant decline in self-response rates . . . particularly for 
immigrants and immigrant-adjacent communi­
ties . . .” and defining ‘“immigrant-adjacent commu­
nities’ as communities with mixed-status households, 
where one family member is a U.S. citizen and an­
other family member is not, and communities in 
which residents would interact with immigrants dai­
ly at work, school, or in other similar environ­
ments.”). It is also common for Black families to 
have family members with different citizenship sta­
tuses. For example, a majority of African and Carib­
bean immigrants who obtained lawful permanent 
resident status have been recorded as being immedi­
ate relatives of U.S. citizens or otherwise family- 
sponsored. See The State of Black Immigrants Part 
1, supra, at 14.

19 Available at https://www.migrationpolicy.org/research/CBI- 
african-migration-united-states.
20 Available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC 
3000034/pdf/dem-47-0869.pdf.

https://www.migrationpolicy.org/research/CBI-african-migration-united-states
https://www.migrationpolicy.org/research/CBI-african-migration-united-states
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC


17

Thus, any evaluation of the potential chilling effect 
of the Citizenship Status Question must take into 
consideration not just the overall undercount of the 
Black population, but also the various factors that 
render the distinct Black noncitizen and immigrant 
populations particularly hard to count. See Ross,
2019 WL 1052434, at *11 (“The Census Bureau has 
identified four primary obstacles to counting hard-to- 
count subpopulations: that they are hard to locate, 
hard to contact, hard to persuade, and hard to inter­
view. For some hard-to-count subgroups, more than 
one of these obstacles applies. Census Bureau re­
search acknowledges that these obstacles apply to 
those households most likely not to respond to the
2020 Census because of the citizenship question.” 
(internal citations omitted)).

3. Adding the Citizenship Status Question would 
further chill census participation among Black im­
migrants and noncitizens—as well as among Black 
people more generally—undermining the quality of 
representation and other opportunities available to 
all Black people. Even before the formal proposal to 
add the Citizenship Status Question to the 2020 cen­
sus, various factors threatened to reduce census par­
ticipation rates for immigrant populations and com­
munities of color, including concerns about insuffi­
cient funding and the confidentiality of the census 
count. See, e.g., NAACP v. Bureau of Census, No. 
PWG-18-891, 2019 WL 355743, at *7 (D. Md. Jan. 29, 
2019) (discussing concerns about cybersecurity 
threats and increased undercounting of minorities 
because the Census Bureau is insufficiently funded 
to prepare for the challenges that digitizing the 2020 
census presents, including impacts on communities 
of color and low-income communities with limited



18

internet access); Mikelyn Meyers, Respondent Confi­
dentiality Concerns and Possible Effects on Response 
Rates and Data Quality for the 2020 Census, U.S. 
Census Bureau (Nov. 2, 2017) (“Findings across lan­
guages, regions of the country, from both pretesting 
respondents and field staff point to an unprecedented 
ground swell in confidentiality and data sharing con­
cerns, particularly among immigrants or those who 
live with immigrants. . . . Particularly troubling due 
to the disproportionate impact on hard-to-count pop­
ulations.”)21; see also Ross, 2019 WL 1052434, at *7 
(“This research includes the Census Bureau’s Center 
for Survey Measurement (‘CSM’) focus group testing 
in 2017, which revealed increased concern among 
immigrants about the confidentiality of their survey 
responses.”).

These fears have deep historical roots given that, 
in the past, the census has been actively used to fur­
ther governmental discrimination. Data from the 
1940 census was notoriously used by the Secret Ser­
vice to locate Japanese Americans and imprison 
them in internment camps. See Katy Steinmetz, The 
Debate Over a New Citizenship Question Isn’t the 
First Census Fight. Here’s Why the Count is Contro­
versial, Time (Mar. 27, 2018).22 In 2004, data from 
the 2000 census was used by the Department of 
Homeland Security to target geographic locations 
with high concentrations of Arab Americans. See

21 Available at https://www2.census.gov/cac/nac/meetings/2017- 
11/Meyers-NAC-Confidentiality-Presentation.pdf.
22 Available at http://time.com/5217151/census-questions- 
citizenship-controversy.

https://www2.census.gov/cac/nac/meetings/2017-11/Meyers-NAC-Confidentiality-Presentation.pdf
https://www2.census.gov/cac/nac/meetings/2017-11/Meyers-NAC-Confidentiality-Presentation.pdf
http://time.com/5217151/census-questions-citizenship-controversy
http://time.com/5217151/census-questions-citizenship-controversy


19

Lynette Clemetson, Homeland Security Given Data 
on Arab-Americans, N.Y. Times (July 30, 2004).23

These reasonable concerns about confidentiality al­
ready dampen census participation rates for Black 
immigrant people and members of other immigrant 
communities. And there is near consensus that the 
addition of the Citizenship Status Question would 
only amplify this chilling effect. See New York, 351 
F. Supp. 3d at 648 (“ [Djespite Secretary Ross’s claim 
to the contrary . . . there is no evidence in the Admin­
istrative Record supporting a conclusion that addi­
tion of the citizenship question will not harm the re­
sponse rate.”); Ross, 2019 WL 1052434, at *9 (“Dr. 
Barreto observed that the citizenship question is 
likely to be most sensitive to those who are closer to 
the immigrant experience or closer to immigrant 
communities.” (internal quotations and citation omit­
ted)); Letter from Mexican American Legal Defense 
& Educ. Fund to Jennifer Jessup 6-10 (Aug. 7, 2018) 
[hereinafter MALDEF Letter]; Letter from Asian 
Americans Advancing Justice to Jennifer Jessup 6-9 
(Aug. 7, 2018).

For decades, “the official position of the Census 
Bureau was that [a citizenship status question] was 
inadvisable because it would depress the count for 
already ‘hard-to-count’ groups—particularly nonciti­
zens and Hispanics—whose members would be less 
likely to participate in the census for fear that the 
data could be used against them or their loved ones.” 
See New York, 351 F. Supp. 3d at 515; see also Ross, 
2019 WL 1052434, at *6 (“The macro-environment,

23 Available at https://www.nytimes.com/2004/07/30/us/ 
homeland-security-given-data-on-arab-americans.html.

https://www.nytimes.com/2004/07/30/us/


20

particularly the political environment around immi­
gration, has the potential to amplify the negative ef­
fect of the citizenship question on self-response 
rates.”)- Despite the radical shift in position of the 
newest Secretary of Commerce, the staff of the Cen­
sus Bureau has continued to recognize that the in­
clusion of the Citizenship Status Question “would 
likely result in a significant differential decline in 
self-response rates within noncitizen and Latino 
communities,” and that the “lower response rates 
will harm the quality of census data.” Ross, 2019 
WL 1052434, at *1, *4. The Census Bureau views as 
“extremely problematic” the reaction of immigrant, 
non-white, and Spanish-speaking groups to the pro­
posal to add the Citizenship Status Question— 
groups that include Afro-Latinx immigrants, who 
comprise 11 percent of the Black immigrant popula­
tion. See Anderson Pew Research Ctr., supra, at 2.

The widespread fears that the Citizenship Status 
Question has created among immigrant communities 
and noncitizen people of color have been amplified by 
increased immigration enforcement and intensifying 
xenophobic rhetoric in recent years. Black immi­
grant people have been among the explicit targets of 
these attacks. For example, the Temporary Protect­
ed Status (“TPS”) designation for Haitian immi­
grants—initiated by the U.S. government in re­
sponse to the 2010 earthquake, and maintained in 
the wake of a subsequent cholera outbreak, and the 
hurricanes that have devastated the Haitian popula­
tion—was terminated in November 2017. Four dis­
trict courts have recognized that LDF’s clients and 
other parties have asserted legitimate claims that 
this act was motivated at least partially by racial 
discrimination. See NAACP v. U.S. Dep’t of Home-



21

land Sec., No. DKC 18-0239, 2019 WL 1126386 (D. 
Md. Mar. 12, 2019); Saget v. Trump, 345 F. Supp. 3d 
287 (E.D.N.Y. 2018); Ramos v. Nielsen, 336 F. Supp. 
3d 1075 (N.D. Cal. 2018); Centro Presente v. Trump, 
332 F. Supp. 3d 393 (D. Mass. 2018).

Those courts have relied on, inter alia, the plain­
tiffs’ allegations that, prior to rescinding TPS status 
for Haiti, the President reportedly stated that Hai­
tians “all have AIDS,” that Haitian immigrant people 
should not be admitted into the United States 
through any proposed immigration plan, and that 
African countries are “shithole countries.” See, e.g., 
Michael D. Shear & Julie Hirschfeld David, Stoking 
Fears, Trump Defied Bureaucracy to Advance Immi­
gration Agenda, N.Y. Times (Dec. 23, 2017).24 The 
President is further reported to have voiced a prefer­
ence for immigrants from countries “like Norway.” 
See Josh Dawsey, Trump derides protections for im­
migrants from ‘shithole’ countries, Wash. Post (Jan. 
12, 2018).25

This atmosphere of hostility—which has unques­
tionably made the question of citizenship contentious 
on a national scale—would substantially amplify the 
chilling effect caused by the Citizenship Status 
Question on immigrants of color, including Black 
immigrants. See Ross, 2019 WL 1052434, at *6, *30 
(“The macro-environment, particularly the political

24 Available at https://www.nytimes.com/2017/12/23/us/politics/ 
trump-immigration.html/.
25 Available at https://www.washingtonpost.com/politics/trump- 
attacks-protections-for-immigrants-from-shithole-countries-in- 
oval-office-meeting/2018/01/ll/bfc0725c-f711-lle7-91af-31ac72 
9add94_story.html?utm_term=.3cal973048c5.

https://www.nytimes.com/2017/12/23/us/politics/
https://www.washingtonpost.com/politics/trump-attacks-protections-for-immigrants-from-shithole-countries-in-oval-office-meeting/2018/01/ll/bfc0725c-f711-lle7-91af-31ac72
https://www.washingtonpost.com/politics/trump-attacks-protections-for-immigrants-from-shithole-countries-in-oval-office-meeting/2018/01/ll/bfc0725c-f711-lle7-91af-31ac72
https://www.washingtonpost.com/politics/trump-attacks-protections-for-immigrants-from-shithole-countries-in-oval-office-meeting/2018/01/ll/bfc0725c-f711-lle7-91af-31ac72


22

environment around immigration, has the potential 
to amplify the negative effect of the citizenship ques­
tion on self-response rates. . . .  [A] hostile macro­
environment combined with the inclusion of sensitive 
questions on a survey can have a cumulative effect 
that is greater than either of these factors would 
have on their own.”).

This anti-immigrant rhetoric has paired with offi­
cial action in multiple ways, causing immigrant pop­
ulations to have significant concerns about issues 
such as the “Muslim Ban,” as well as a general wari­
ness of Immigration and Customs Enforcement. See, 
e.g., Memorandum from the U.S. Census Bureau, 
Ctr. For Survey Measurement to Assoc. Directorate 
for Research & Methodology 1 (Sept. 20, 2017) (“In 
particular, CSM researchers heard respondents ex­
press new concerns about topics like the ‘Muslim 
ban,’ discomfort ‘registering’ other household mem­
bers by reporting their demographic characteristics, 
the dissolution of the ‘DACA’ (Deferred Action for 
Childhood Arrival) program, repeated references to 
Immigration and Customs Enforcement (ICE), etc. 
FRs and FSs emphasized facing a ‘new phenomenon’ 
in the field and reported that respondents’ fears, par­
ticularly among immigrant respondents, have in­
creased markedly this year.”).26 Black immigrant 
people exist at the nexus of many of these issues—for 
example, approximately 11 percent of foreign-born 
Muslims in the United States identify as Black. See 
Muslims in America: Immigrants and those born in

26 Available at https://www2.census.gov/cac/nac/meetings/2017- 
11/Memo-Regarding-Respondent-Confi dentiality-Concerns.pdf.

https://www2.census.gov/cac/nac/meetings/2017-11/Memo-Regarding-Respondent-Confi
https://www2.census.gov/cac/nac/meetings/2017-11/Memo-Regarding-Respondent-Confi


U.S. see life differently in many ways, Pew Research 
Ctr. (Apr. 17, 2018).27

The chilling effect of the Citizenship Status Ques­
tion will be amplified not just by the national politi­
cal climate, but also by existing concerns regarding 
surveillance and over-policing among Black immi­
grant communities. These concerns reflect the fact 
that—despite zero evidence that Black immigrant 
people commit crimes at a greater rate than other 
immigrant people—while Black immigrant people 
comprise 7.2 percent of the noncitizen population in 
the United States, they comprise 20.3 percent of the 
immigrant people facing deportation before the Ex­
ecutive Office for Immigration Review on criminal 
grounds, compared to 10 percent of all immigrant 
people overall. See NYU Law Immigrant Rights 
Clinic, The State of Black Immigrants Part 2: Black 
Immigrants in the Mass Criminalization System 
20.28

In sum, Black immigrant people—including Black 
noncitizen people—represent a sizeable portion of 
the overall Black population in the United States, 
and of the overall immigrant population. Adding the 
Citizenship Status Question to the 2020 census will 
aggravate the existing collective fears and feed on 
the current national environment of intense anti- 
immigrant and anti-Black sentiment in the United 
States. Given that Black people are situated at the

23

27 Available at https://www.pewforum.org/essay/muslims-in- 
america-immigrants-and-those-born-in-u-s-see-life-differently- 
in-many-ways/.
28 Available at http://www.stateofblackimmigrants.com/assets/ 
sobi-fullreport-j an22 .pdf.

https://www.pewforum.org/essay/muslims-in-america-immigrants-and-those-born-in-u-s-see-life-differently-in-many-ways/
https://www.pewforum.org/essay/muslims-in-america-immigrants-and-those-born-in-u-s-see-life-differently-in-many-ways/
https://www.pewforum.org/essay/muslims-in-america-immigrants-and-those-born-in-u-s-see-life-differently-in-many-ways/
http://www.stateofblackimmigrants.com/assets/


24

intersection of multiple hard-to-count demographics, 
the Citizenship Status Question threatens to deter 
the census participation of a group of people— 
citizens and noncitizens, documented and undocu­
mented—who are already at risk of being under­
counted by virtue of being Black, Black and immi­
grant, or Black and noncitizen. As a result, the Citi­
zenship Status Question would have a detrimental 
impact on the Black population’s political represen­
tation and receipt of critical public resources.

C.A complete and accurate count is neces­
sary for racial equity.

The legacy of undercounting the Black population 
and its various subgroups in the United States— 
which is likely to worsen with the addition of the Cit­
izenship Status Question—has concrete detrimental 
effects for members of the Black community. Census 
data is crucial not only for redistricting purposes, but 
also “for such varied purposes as computing federal 
grant-aid benefits, drafting of legislation, urban and 
regional planning, business planning, and academic 
and social studies.” Baldridge v. Shapiro, 455 U.S. 
345, 353 n.9 (1982). Policymakers, federal agencies, 
and civil rights advocates rely on census data to ad­
dress barriers to equal opportunity in areas such as 
voting rights, employment, education, housing, lend­
ing, healthcare, and criminal justice, among others. 
See Race and Ethnicity in the 2020 Census: Improv­
ing Data to Capture a Multiethnic America, The 
Leadership Conference & Educ. Fund 9 (Nov. 2014) 
[hereinafter Race and Ethnicity in the 2020 Cen­



25

sus].29 Fair political representation, access to gov­
ernment services, and effective enforcement of civil 
rights laws thus all depend on an accurate census 
count. Adding the Citizenship Status Question 
would not improve citizenship data, but would de­
press response rates for the Black population while 
further entrenching the discrimination that Black 
people already experience in contexts that span eve­
ry facet of life.

1. Political Representation
Because of the key role that census data plays in 

political redistricting, the Black population under­
count deprives Black people of fair and equal repre­
sentation. By April 1 of the year following a census 
year, the Census Bureau sends to each State a “re­
districting file” or “P.L. 94-171 file,” which includes 
data on population counts and selected characteris­
tics for that State. 13 U.S.C. § 141(c); Race and Eth­
nicity in the 2020 Census, supra, at 9. The redis­
tricting file includes information on race and the oc­
cupancy status of housing units. States use this data 
to draft redistricting plans for congressional and 
state legislative seats, as well as for local govern­
ment positions such as county and city councils and 
school boards. See id. at 9. Accordingly, census data 
represents the foundation of political representation 
at all levels of government.

The undercount of the Black population results in 
areas with large concentrations of Black people hav­
ing larger numbers of people per representative, di­

29 Available at http://civilrightsdocs.info/pdf/reports/Census- 
Report-2014-WEB.pdf.

http://civilrightsdocs.info/pdf/reports/Census-Report-2014-WEB.pdf
http://civilrightsdocs.info/pdf/reports/Census-Report-2014-WEB.pdf


26

rectly contravening the principle of “equality of rep­
resentation,” which underlies the one-person, one- 
vote rule. See Evenwel, 136 S. Ct. at 1131; see also 
id. at 1132 (noting that “representatives serve all 
residents, not just those eligible or registered to 
vote,” and that equalizing the total population of dis­
tricts “promotes equitable and effective representa­
tion”). Thus, accurate census data is necessary to 
ensure that redistricting files accurately reflect the 
composition of States and their localities.

2. Employment
After each census, the Census Bureau prepares the 

EEO Tabulation file, which includes data on sex, 
race, educational attainment, occupation, age, earn­
ings, and unemployment status, among other things. 
Race and Ethnicity in the 2020 Census, supra, at 11. 
The EEO Tabulation file is then used by several gov­
ernment agencies—including the Equal Employment 
Opportunity Commission (“EEOC”), the Department 
of Justice, the Office of Federal Contract Compliance 
Programs, and the Office of Personnel Management 
(“OPM”)—for comparing an organization’s workforce 
with the broader labor market and therefore ena­
bling those agencies to monitor discrimination in the 
workplace. See id. Census data also assists the 
EEOC and OPM in ensuring diversity and inclusion 
in the federal workforce. See id. The accuracy of 
census data is therefore of the utmost importance in 
permitting federal agencies to achieve equal em­
ployment opportunity for racial and ethnic minori­
ties.



27

3. Education
Accurate census data is also crucial to safeguard­

ing equal educational opportunities for all students. 
Following this Court’s decision in Brown v. Board of 
Education, local governments began depending on 
census data to implement desegregation plans; that 
data remains vital today in ensuring equal access to 
quality education. See Jolie Lee, Still apart: Map 
shows states with most-segregated schools, USA To­
day (May 15, 2014)30; Chandi Wagner, School Segre­
gation Then & Now: How to Move Toward a More 
Perfect Union 6 (Jan. 2017).31 Accurately identifying 
school district populations allows local governments 
to accurately direct education funding. Specifically, 
census data ensures that inequities in teaching, facil­
ities, academic programs, and other school resources 
can be identified and addressed, including by facili­
tating the use of supplemental programs to remedy 
the disadvantages facing schools in distressed areas. 
See Melissa Etehad, The 2020 census could under­
count 1 million kids -  which means less money for 
California schools, L.A. Times (July 9, 2018, 3:00 
AM).32 The use of this data ensures that all stu­
dents. including Black students, other students of 
color, and low-income students, have access to a 
high-quality education. See Race and Ethnicity in 
the 2020 Census, supra, at 12-13; The Leadership

30 Available at https://www.usatoday.com/story/news/nation- 
now/2014/05/15/school-segregation-civil-rights-project/9115823/.
31 Available at http://www.centerforpubliceducation.org/system/ 
files/School%20Segregation%20Full%20Report_0.pdf.
32 Available at https://www.latimes.com/nation/la-na-counting- 
children-census-20180709-story.html.

https://www.usatoday.com/story/news/nation-now/2014/05/15/school-segregation-civil-rights-project/9115823/
https://www.usatoday.com/story/news/nation-now/2014/05/15/school-segregation-civil-rights-project/9115823/
http://www.centerforpubliceducation.org/system/
https://www.latimes.com/nation/la-na-counting-children-census-20180709-story.html
https://www.latimes.com/nation/la-na-counting-children-census-20180709-story.html


2 8

Conference Educ. Fund, Factsheet: Will Your Kids 
Count? Young children and their families in the 
2020 census 1, 3 (last updated Apr. 17, 2018).33 Race 
and ethnicity data from the census are also essential 
to ensuring meaningful enforcement of Title VI of the 
Civil Rights Act. See Race and Ethnicity in the 2020 
Census, supra, at 12 (Title VI of the Civil Rights Act 
prohibits any state or local education agency or sys­
tem from receiving federal funds when such an enti­
ty is found to be discriminating based on race or eth­
nicity). For example, census data can help identify 
situations in which local or state education policy­
makers have systematically allocated more money 
per student to areas comprised of a predominantly 
white population as compared to areas comprised of 
a predominantly Black population.

4. Fair Housing
Census data regarding race and ethnicity help pub­

lic enforcement agencies, researchers, and fair hous­
ing advocates identify discriminatory practices that 
deny access to housing based on factors other than 
affordability, in violation of the Fair Housing Act. 
See id. at 13. For example, census data has helped to 
uncover discriminatory mortgage foreclosure practic­
es, denial of credit, and predatory lending practices 
in communities of color. See generally National Fair 
Housing Alliance, Zip Code Inequality: Discrimina­
tion by Banks in the Maintenance of Homes in 
Neighborhoods of Color (Aug. 27, 2014).34

33 Available at http://civilrightsdocs.info/pdf/census/Fact-Sheet- 
Undercount-of-Young-Children.pdf.
34 Available at https://nationalfairhousing.org/wp-content/ 
uploads/2017/04/2014-08-27_NFHA„REO_report.pdf.

http://civilrightsdocs.info/pdf/census/Fact-Sheet-Undercount-of-Young-Children.pdf
http://civilrightsdocs.info/pdf/census/Fact-Sheet-Undercount-of-Young-Children.pdf
https://nationalfairhousing.org/wp-content/


5. Criminal Justice
Census-based research has directly supported poli­

cymakers in addressing racial and ethnic disparities 
in the criminal justice system, including, for exam­
ple, the Department of Justice’s “Smart on Crime” 
initiative. See Ashley Nellis, The Sentencing Project, 
The Color of Justice: Racial and Ethnic Disparity in 
State Prisons 3 (Jun. 2016)35; see generally Dep’t of 
Justice, Smart on Crime: Reforming the Criminal 
Justice System for the 21st Century (Aug. 2013).36 
Civil rights activists have also relied on research in­
corporating census data to continue to push for legis­
lative reform to abolish the death penalty, which is 
plagued by racial bias, particularly towards Black 
defendants. Race and Ethnicity in the 2020 Census, 
supra, at 14. Census data is therefore central in 
helping policymakers, law enforcement agencies, and 
advocates work towards minimizing disparities in 
the criminal justice system, including those that dis­
proportionately affect Black people.

•k k k

The varied ways that census data is used to deter­
mine political structure and government policy illus­
trate the importance of an accurate census. Given 
that the census has historically been inaccurate be­
cause of its systematic undercount of the Black popu­
lation, it is particularly urgent to avoid any modifica­
tion to the 2020 census that could exacerbate this

29

35 Available at https://www.sentencingproject.org/wp-content/ 
uploads/2016/06/The-Color-of-Justice-Racial-and-Ethnic- 
Disparity-in-State-Prisons.pdf.
36 Available at https://www.justice.gov/sites/default/files/ag/ 
legacy/2013/08/12/smart-on-crime.pdf.

https://www.sentencingproject.org/wp-content/
https://www.justice.gov/sites/default/files/ag/


30

well-documented historical undercounting. Any 
change that creates a risk of increasing such under­
counting—as the Citizenship Status Question un­
questionably does, see pp. 11-24, supra—should be 
reviewed with particular care and caution, as it risks 
further depriving the Black population of fair repre­
sentation, freedom from racial discrimination, and 
equal opportunity.

II. LDF and other civil rights organizations’ 
vast experience litigating under the Voting 
Rights Act confirms that the Citizenship 
Status Question is unnecessary to enforce 
Section 2 of the Act.

Despite the tremendous damage that adding the 
Citizenship Status Question to the census would 
cause Black people and other racial minorities by se­
verely jeopardizing accurate enumeration, Petition­
ers insist that their decision is justified by the need 
to enforce Section 2 of the Voting Rights Act. That 
assertion is demonstrably false. LDF and other civil 
rights organizations have extensive and long- 
established experience bringing Section 2 cases un­
der the Act. Based on that experience and as 
demonstrated below, we can unequivocally represent 
that the Citizenship Status Question is not necessary 
for enforcement of that provision.

Specifically, LDF has used the Voting Rights Act of 
1965 and its amendments successfully to defend and 
protect minority voting rights using census data for 
over 50 years. No citizenship status question has 
been asked on the primary decennial census form 
since 1950—a span of almost 70 years. The civil 
rights laws should not be used as a pretext to justify



31

a policy that will undermine the very communities 
that Congress enacted Section 2 to protect.

1. Citizenship population data is used within the 
context of Section 2 vote dilution claims. Such 
claims allege that particular electoral maps have the 
effect of diluting the ability of minority voters to elect 
their candidates of choice and participate equally in 
the political process. Section 2 vote dilution plain­
tiffs must demonstrate that: (1) the minority group is 
“sufficiently large and geographically compact to 
constitute a majority in a single-member district”; (2) 
the minority group is “politically cohesive,” meaning 
that members of the minority group tend to support 
the same candidates of choice; and (3) “the white ma­
jority votes sufficiently as a bloc to enable it . . . usu­
ally to defeat the minority’s preferred candidate.” 
Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986).

If the plaintiff makes this threshold showing, the 
court must undertake a holistic analysis to deter­
mine “whether as a result of the challenged practice 
or structure plaintiffs do not have an equal oppor­
tunity to participate in the political processes and to 
elect candidates of their choice.” Id. at 44 (internal 
citation and quotation omitted). This analysis is in­
formed by a list of “objective factors,” including “the 
history of voting-related discrimination in the State 
or political subdivision,” the “use of overt or subtle 
racial appeals in political campaigns,” and “the ex­
tent to which minority group members bear the ef­
fects of past discrimination in areas such as educa­
tion, employment, and health, which hinder their



ability to participate effectively in the political pro­
cess.” Id. at 44-45.37

Citizenship data is one piece of evidence relevant 
to one aspect of this multi-stage, multi-factor in­
quiry: whether the minority group’s eligible voter 
population is large enough to allow minority voters 
to elect their candidates of choice. See League of Lat­
in Am. Citizens (LULAC) v. Perry, 548 U.S. 399, 429 
(2006) (calling citizenship data a “starting point” for 
the Section 2 inquiry).38 Existing data sources, in­
cluding citizenship data obtained through the census 
long-form questionnaire, have proven more than suf­
ficient for this threshold purpose. For the entire his­
tory of the Voting Rights Act, the Census Bureau has

32

37 The other “objective factors” are:
the extent to which voting in the elections of the 
State or political subdivision is racially polar­
ized; the extent to which the State or political 
subdivision has used voting practices or proce­
dures that tend to enhance the opportunity for 
discrimination against the minority group, such 
as unusually large election districts, majority 
vote requirements, and prohibitions against bul­
let voting; the exclusion of members of the mi­
nority group from candidate slating process­
es; .. . the extent to which members of the mi­
nority group have been elected to public office in 
the jurisdiction . . . evidence demonstrating that 
elected officials are unresponsive to the particu­
larized needs of the members of the minority 
group and [whether] the policy underlying the 
State's or the political subdivision's use of the 
contested practice or structure is tenuous.

Thornburg v. Gingles, 478 U.S. 30, 44-45 (1986).
38 Citizenship data may also be relevant in Section 2 vote dilu­
tion litigation to evaluate the sufficiency of remedial maps.



33

collected citizen voting-age population (“CVAP”) da­
ta, first through the long-form census—a longer ver­
sion of the standard census form sent to a subset of 
households—and more recently through the Ameri­
can Community Survey (“ACS”), which is a monthly 
long-form survey issued to a representative statisti­
cal sample of the U.S. population. See Testimony of 
Lawyers’ Committee for Civil Rights Under Law 
Submitted by Kristen Clark to the U.S. House of 
Representatives Judiciary Committee Subcommittee 
on the Constitution and Civil Justice Hearing on 
“Questions Regarding the U.S. Census” at 3-4 (June 
8, 2018). Monthly ACS data is then provided using 
rolling averages to ensure reliable estimates. See 
Chand et al., Multi-Year Averages From a Rolling 
Sample Survey, U.S. Census Bureau, at 1 (2000).39 
Moreover, many States and localities track political 
participation data by race—this includes data on 
voter registration and turnout rates. See Letter from 
Native American Voting Rights Coalition to Jennifer 
Jessup 5 (Aug. 7, 2018) [hereinafter NAVRC letter] 
(discussing how political participation data can be 
used to support a Section 2 Voting Rights Act claim).

2. Civil rights organizations, such as LDF, the 
Lawyers’ Committee for Civil Rights Under Law, and 
the Mexican American Legal Defense and Educa­
tional Fund (“MALDEF”), have used the existing da­
ta to bring successful Section 2 vote dilution cases. 
See, e.g., Terrebonne Parish Branch NAACP v. 
Jindal, 274 F. Supp. 3d 395, 420 (M.D. La. 2017); 
Georgia State Conference NAACP v. Fayette Cnty. 
Bd. of Commr’s, 118 F. Supp. 3d 1338, 1343-44 (N.D.

39 Available at https://www.census.gov/content/dam/Census/ 
library/working-papers/2000/acs/2000_Chand„01.pdf.

https://www.census.gov/content/dam/Census/


34

Ga. 2015); Testimony of Lawyers’ Committee for Civ­
il Rights Under Law Submitted by Kristen Clarke to 
the U.S. House of Representatives Judiciary Com­
mittee Subcommittee on the Constitution and Civil 
Justice Hearing on “Questions Regarding the U.S. 
Census” at 3-4 (June 8, 2018); MALDEF Letter, su­
pra, at 4. Far from calling the sufficiency of this da­
ta into question, and contrary to the assertions of 
amicus the Public Interest Legal Foundation, this 
Court and others have routinely upheld the use of 
existing data sources in the Section 2 vote dilution 
context. See, e.g., LULAC, 548 U.S. at 423-42 (find­
ing vote dilution under Section 2 using CVAP data); 
Barnett v. City of Chicago, 141 F.3d 699, 702-04 (7th 
Cir. 1998) (holding that existing CVAP data was ad­
equate to ensure equality of voting power under the 
Voting Rights Act); Negron v. City of Miami Beach, 
113 F.3d 1563, 1569-70 (11th Cir. 1997) (recognizing 
that the “use of sample data is a long-standing sta­
tistical technique” and finding existing citizenship 
data sufficient in the Section 2 vote dilution context); 
Corbett v. Sullivan, 202 F. Supp. 2d 972, 984-85 
(E.D. Mo. 2002) (considering political participation 
data in evaluating redistricting proposals for compli­
ance with Section 2). As explained by Judge Furman 
in this case, “there is no indication in the record that 
the Department of Justice and civil rights groups 
have ever, in the fifty-three years since the Voting 
Rights Act was enacted, suggested that citizenship 
data collected as part of the decennial census would 
be helpful, let alone necessary, to litigate such 
claims.” New York v. U.S. Dep’t of Commerce, 315 F. 
Supp. 3d 766, 808 (S.D.N.Y. 2018).

3. Beyond the fact that existing data collected by 
the Census Bureau is plainly sufficient for Section 2



35

enforcement purposes, new citizenship data collected 
from the decennial census in response to the Citizen­
ship Status Question would be less, not more, accu­
rate. See Ross, 2019 WL 1052434, at *63; NAVRC 
Letter, supra, at 5. As explained, pp. 11-17, supra, 
census data relies on self-reporting and is prone to 
undercounting, particularly of members of minority 
groups. See Ross, 2019 WL 1052434, at *11. By con­
trast, data derived from statistical sampling is cor­
rected to account for disparate response rates, dimin­
ishing undercounting concerns. See American Com­
munity Survey Design and Methodology, Chapter 11, 
Weighting and Estimation, U.S. Census Bureau 10 
(Rev. Dec. 2010) [hereinafter Weighting and Estima­
tion].40 Political participation data does not rely on 
self-reporting at all. See Ross, 2019 WL 1052434, at 
*63. Thus, existing citizenship data is, if anything, 
more accurate than the data Petitioners seek to col­
lect with the Citizenship Status Question. See, e.g., 
id.; MALDEF Letter, supra, at 6-7. Moreover, de­
cennial census data captures only a snapshot of the 
U.S. population every ten years.41 By contrast, ACS

40 Available at https://www.census.gov/content/dam/Census/ 
library/publications/2010/acs/Chapter_l l__RevisedDec2010.pdf.

41 Amici Oklahoma et al. highlight (at 15) the ACS’s 1-year es­
timates as being “only reliable for 65,000 people or more,” but 
ignore the fact that, in practice, it is the 5-year estimate pro­
duced by ACS that is used in Section 2 litigation, not the 1-year 
estimate. See Chand et al., Multi-Year Averages From a Rolling 
Sample Survey, U.S. Census Bureau, at 1 (2000), https://www. 
census.gov/content/dam/Census/library/working-papers/ 
2000/acs/2000_Chand_01.pdf; see also Citizen Voting Age Popu­
lation by Race and Ethnicity, Census.gov (Feb. 1, 2018), 
https://www.census.gov/programs-surveys/decennial- 
census/about/voting-rights/cvap.2019.html (identifying the Cen­
sus Bureau’s data on citizen voting age population by race and

https://www.census.gov/content/dam/Census/
https://www
https://www.census.gov/programs-surveys/decennial-census/about/voting-rights/cvap.2019.html
https://www.census.gov/programs-surveys/decennial-census/about/voting-rights/cvap.2019.html


36

CVAP population averages are based on monthly 
surveys, which capture population trends over time. 
See Weighting and Estimation, supra, at 5. Treating 
citizenship data from the decennial census as more 
reliable than ACS CVAP data would therefore 
threaten to obscure population trends, even though 
the growth rates of minority populations often far 
exceed those of white populations. See, e.g., Be­
navidez v. City of Irving, Tex., 638 F. Supp. 2d 709, 
730 (N.D. Tex. 2009) (relying on ACS data to deter­
mine growth trend of Hispanic CVAP and finding a 
violation of Section 2 of the Voting Rights Act).

Compounding this harm is the likelihood that, as 
explained, pp. 17-20, supra, the Citizenship Status 
Question would depress response rates of immigrant 
communities, making any new citizenship data even 
less reliable. The sufficiency of existing data sources, 
and Petitioners’ inability to show that the Citizen­
ship Status Question woidd help, rather than hurt, 
the Census Bureau’s ability to obtain accurate citi­
zenship data, further supports Judge Furman’s as­
sessment that the “evidence suggest[s] that Secre­
tary Ross’s stated rationale for adding the [citizen­
ship status] question is pretextual.’’ New York, 315 
F. Supp. 3d at 775; see also Ross, 2019 WL 1052434, 
at *1 (“These facts and other evidence . . . demon­
strate that Secretary Ross’s reliance on VRA en­
forcement to justify inclusion of the citizenship ques­
tion was mere pretext[.]”). This pretextual justifica­
tion, part of a long and shameful history of manipu­
lating the census to avoid an accurate enumeration 
of the Black population, should be rejected.

ethnicity as “sourced from the American Community Survey 
(ACS) 5-year estimates”).



37
k k k

Simply put, the civil rights organizations that have 
successfully enforced Section 2 of the Voting Rights 
Act since its inception are nearly unanimously op­
posed to the addition of the Citizenship Status Ques­
tion. See, e.g., MALDEF Letter, supra; NAVRC Let­
ter, supra. There is no evidence supporting Petition­
ers’ assertion that the addition of the Citizenship 
Status Question to the 2020 census would enable 
better Section 2 enforcement—in fact, the opposite is 
true. Using a pretextual appeal to the Voting Rights 
Act to undermine the same communities that the Act 
was enacted to protect constitutes unquestionably 
arbitrary and capricious, and potentially discrimina­
tory, government action.

CONCLUSION
The judgment of the district court should be 

affirmed.
Respectfully submitted.

Sh e r r ilyn  A. Ifill  
Ja n a i S. N elson  
Sa m u e l  Spital  
L eah  C. A den  
A a r o n  Su ssm a n  
J. Za c h e r y  M orris 
NAACP L e g a l  D efe n se  & 

Ed u c a tio n a l  Fu n d , In c . 
40 Rector Street, 5th Floor 
New York, NY 10006 
(212) 965-2200

D avid  J. Z im m er  
Counsel of Record 

J o sh u a  J. B one  
G o o d w in  Pr o c te r  LLP 
100 Northern Ave.
Boston, MA 02210 
dzimmer@goodwinlaw.com
T iff a n y  M ah m o o d  
W illiam  U hr 
M a d e lin e  D iLa sc ia  
G o o d w in  P r o c te r  LLP

Counsel for Amicus Curiae
April 1, 2019

mailto:dzimmer@goodwinlaw.com