You are on page 1of 10

Brennan Center for Justice

at New York University School of Law

120 Broadway
Suite 1750
New York, New York 10271
646.292.8310 Fax 212.463.7308
www.brennancenter.org

Annotated Guide to the Amicus Briefs in the Supreme Court’s Citizenship Question Cases
By Kelly Percival and Brianna Cea
As the Supreme Court takes up challenges to the 2020 Census citizenship question, almost 50 friend-of-
the-court briefs have been filed.
On April 23, 2019, the Supreme Court will hear oral argument in Department of Commerce v. New York,
a challenge to Commerce Secretary Wilbur Ross’s controversial decision to add a citizenship question to
the 2020 Census. In a tell-tale sign of this case’s significance, a diverse array of civil rights groups, states,
elected officials, former Census Bureau leaders, businesses, foundations, and social science experts filed
36 friend-of-the-court briefs in support of the challengers who are urging the Supreme Court to strike
down the question. Nine briefs were filed in support of the Commerce Department, while one brief was
filed in support of neither party.
To help sort through the briefs, the Brennan Center has prepared this annotated guide summarizing each
brief’s most prominent or unique points.
For the Brennan Center’s brief in support of the challengers, click here. For more information on the
citizenship question cases, visit our regularly updated case pages and calendar of upcoming hearings and
deadlines. Additional information from the Brennan Center about the history of the census and citizenship
questions is available at SCOTUSblog and the Los Angeles Times. And for the latest on other challenges
facing the 2020 Census, visit our census resource page.
___________________________________________________________________________________

Briefs Providing Bipartisan Perspectives

Brief of Former Census Bureau Directors in Support of Respondents

Summary: This brief, filed by five former directors of the U.S. Census Bureau who served under both
Republican and Democratic administrations, argues that studies have consistently shown—and the
Census Bureau has consistently concluded—that asking a citizenship question of everyone on the
decennial census would produce a less accurate count and lower quality census data. The brief further
argues that Secretary Ross’s addition of the citizenship question violated the Census Bureau’s
longstanding practices and policies for changing the census. The law firm of Mayer Brown LLP is
counsel for this brief.

Brief of John R. Dunne, et al. in Support of Respondents

Summary: This brief, filed by six former heads of the Civil Rights Division of the Department of Justice
who served under Republican and Democratic administrations, argues that block-level citizenship data
from the decennial census will not help enforce the Voting Rights Act. Moreover, the brief argues, the
citizenship question is likely to undermine Voting Rights Act enforcement because it will lead to an
undercount of Latinos and other minorities. Samuel R. Bagenstos and Justin Levitt are co-counsel for this
brief.

Brief of Current Members of Congress and Bipartisan Former Members of Congress in Support of
Respondents

Summary: This brief, filed by a bipartisan group of current and former members of Congress, argues that
the citizenship question undermines the federal government’s constitutional obligation to count all
persons in the enumeration. The Members emphasize that Secretary Ross’s stated justification for adding
the citizenship question (Voting Rights Act enforcement) does not trump this constitutional obligation or
the mandates of the Census Act, especially since citizenship data can be acquired through administrative
records. The Constitutional Accountability Center is counsel for this brief.

Brief of Former Federal District Judges in Support of Respondents

Summary: This brief, filed by five former federal district court judges who were appointed by both
Republican and Democratic Presidents, argues that it is crucial for appellate courts to defer to the factual
findings of trial courts because trial courts are best suited to make accurate factual findings. It further
argues that, under the clear-error standard of review applicable to Administrative Procedure Act
decisions, the Supreme Court should uphold the trial court’s determination that Secretary Ross’s reasons
for adding the citizenship question were pretextual. The law firm of Kellogg, Hansen, Todd, Figel &
Frederick, PLLC is counsel for this brief.

Brief for 190 Bipartisan Elected Officials in Support of Respondents

Summary: This brief—filed by 190 bipartisan elected officials, counties, and cities from 13 states—
argues that the citizenship question will harm states and individuals across the country because it will lead
to an unequal distribution of federal funding. The brief specifically highlights the harms the undercount
would cause to people who rely on Title I funding for at-risk schoolchildren and funding for crime
victims’ assistance programs. The law firms of Paul, Weiss, Rifkind, Wharton & Garrison LLP and
Rosenstein & Birkenstock, P.C. are co-counsel for this brief.

Briefs Discussing the Voting Rights Act

Brief of the Leadership Conference on Civil and Human Rights, the Brennan Center for Justice at
N.Y.U. School of Law, and Civil Society Organizations in Support of Respondents

Summary: This brief—filed by the Brennan Center for Justice, the Leadership Conference on Civil and
Human Rights, and over 170 other civil society organizations—challenges the Commerce Department’s
claim that citizenship data derived from the decennial census is necessary to enforce the Voting Rights
Act. The brief argues that Voting Rights Act litigants have long successfully used citizenship data from
sources other than the decennial census to vindicate their rights, and that collecting citizenship data on the
census would actually undermine enforcement of the Act because the citizenship question would
exacerbate undercounts of the communities the Act is meant to protect. The brief further explains the
long-lasting harms that a citizenship question would inflict upon minority communities. The Brennan

2
Center, the Leadership Conference on Civil and Human Rights, and the law firm of Wilmer Cutler
Pickering Hale and Dorr LLP are co-counsel for this brief.

Brief of NAACP Legal Defense & Educational Fund, Inc. in Support of Respondents

Summary: This brief, filed by the NAACP Legal Defense & Educational Fund, argues that citizenship
data from the decennial census is not necessary to enforce the Voting Rights Act. It further argues that the
citizenship question would undermine racial equality and exacerbate the undercount of the Black
population, which has historically gone undercounted in the census. NAACP LDF and the law firm of
Goodwin Procter LLP are co-counsel for this brief.

Brief of National Asian Pacific American Bar Association, Asian American Legal Defense and
Education Fund, et al. in Support of Respondents

Summary: This brief, filed by the Asian Pacific American Bar Association and the Asian American Legal
Defense and Education Fund, argues that the citizenship question will inflict substantial harms on the
Asian American and Pacific Islander community and will undermine their ability to enforce the Voting
Rights Act. Asian American Legal Defense and Education Fund, National Asian Pacific American Bar
Association and the law firm of Boies Schiller Flexner LLP are co-counsel for this brief.

Brief of Oklahoma, et al. in Support of Petitioners

Summary: This brief, filed by 17 states, argues that states’ efforts to comply with the Voting Rights Act
will benefit from citizenship data collected on the decennial census. These states also argue that the
administrative record did not show that the citizenship question will cause an undercount. The Attorney
General of Oklahoma is counsel for this brief.

Brief of the Public Interest Legal Foundation in Support of Petitioners

Summary: This brief, filed by the Public Interest Legal Foundation, argues that citizenship data is
necessary to enforce Section 2 of the Voting Rights Act, and that more precise data than that available
from the American Community Survey would be helpful for that enforcement. The Public Interest Legal
Foundation is counsel for this brief.

Brief of Project on Fair Representation in Support of Petitioners

Summary: This brief, filed by the Project on Fair Representation, argues that the citizenship question will
improve the data available for drawing legislative maps and for litigating Section 2 of the Voting Rights
Act. The law firm of Consovoy McCarthy Park PLLC is counsel for this brief.

Brief of Republican National Committee and the National Republican Congressional Committee in
Support of Petitioners

Summary: This brief, filed by the Republican National Committee and the National Republican
Congressional Committee, argues that asking the citizenship question on the short-form census

3
is the only way to generate “reliably accurate” citizenship data for redistricting purposes. The National
Republican Congressional Committee, the Republican National Committee, and the law firm of Holtzman
Vogel Josefiak Torchinsky PLLC are co-counsel for this brief.

Brief of Judicial Watch and Allied Educational Foundation in Support of Petitioners

Summary: This brief, filed by Judicial Watch and the Allied Educational Foundation, argues that it would
be better to have citizenship data derived from the decennial census than the data currently available to
enforce the National Voter Registration Act. Judicial Watch, Inc. is counsel for this brief.

Briefs Explaining the Harmful Impacts of the Citizenship Question

Brief of the American Statistical Association, et al. in Support of Respondents

Summary: This brief, filed by four leading statistical organizations, argues that the Commerce
Department did not follow historical and professionally responsible statistical procedures for adding
questions to the census—such as pretesting questionnaires and field testing—when it decided to add the
citizenship question. The brief further emphasizes the importance of accurate census data to public
programs and academic research. The law firm of Hogan Lovells US LLP is counsel for this brief.

Brief of Businesses and Business Organizations in Support of Respondents

Summary: This brief—filed by 21 businesses from a variety of sectors and three business
organizations—argues that the citizenship question will harm businesses by corrupting data on which they
rely for marketing and product development, as well as by complicating equitable allocations of federal
funding. The brief further argues that, as businesses become increasingly data-driven, inaccurate census
data will cause increasing harm to them. The law firm of Gibson, Dunn & Crutcher LLP is counsel for
this brief.

Brief of Foundations and Philanthropy-Serving Organizations in Support of Respondents

Summary: This brief, filed by 28 philanthropies, argues that the citizenship question will distort census
data that foundations and philanthropy-serving organizations rely upon to determine what projects to
fund, including projects that affect children and families, public health, education, and community and
economic development. The law firm of Friedman Kaplan Seiler & Adelman LLP is counsel for this
brief.

Brief of the Nielsen Company (US), LLC in Support of Respondents

Summary: This brief—filed by a global measurement, data, and analytics company that relies on census
data to create consumer behavior projections—describes the harms inaccurate census data will inflict on
the day-to-day operations and strategic planning efforts of American businesses. The Nielsen Company
and the law firm Jenner & Block LLP are co-counsel for this brief.

4
Brief of County of Santa Clara, et al. in Support of Respondents

Summary: This brief—filed by the County of Santa Clara, the City of Los Angeles, nine other local
governments, and the National League of Cities—argues that the citizenship question will produce
inaccuracies in census figures that are crucial for local governments’ ability to plan for disasters and
public health emergencies, to provide vital services like nutrition and crime victims’ services, and to
ensure that electoral districts advance the principles of representative democracy. The County Counsel for
the County of Santa Clara and the Los Angeles City Attorney are co-counsel for this brief.

Council of the Great City Schools in Support of Respondents

Summary: This brief—filed by a coalition of 74 of the largest urban public school systems in the
country–explains how a differential undercount caused by the citizenship question will undercut federal
education programs, such as Title I funding for low-income school children and funding for children
living with disabilities under the Individuals with Disabilities Education Act. The Council of the Great
City Schools and the law firm of Husch Blackwell LLP are co-counsel for this brief.

Brief of Latino Justice PRLEDF and Fifteen Other Organizations in Support of Respondents

Summary: This brief, filed on behalf of Latino Justice PRLDEF and 15 other Latino community
organizations, explains how the current political environment has stoked fears Latino community
members’ fears of the federal government. The citizenship question, the brief argues, will exacerbate
these fears, leading to a differential undercount of Latinos that will cause them to lose federal funding for
social services and dilute their political power. Latino Justice PRLDEF and the law firm of Locke Lord
LLP are co-counsel for this brief.

Brief of Harris County, Texas, et al. in Support of Respondents

Summary: This brief—filed by a Texas county, city, and judge—argues that immigrants have made
substantial contributions to the diversity and economic viability of many areas of Texas, and that the
citizenship question will lead to a disproportionate undercount of the immigrant communities that have
allowed Texas to thrive. The Law Office of Susan Hays, PC and the Office of Vince Ryan, Harris County
Attorney are co-counsel for this brief.

Brief of International Municipal Lawyers Association and the International City/County


Management Association in Support of Respondents

Summary: This brief, filed by the International Municipal Lawyers Association (IMLA) and the
International City/County Management Association (ICMA), argues that the citizenship question will
harm local governments by distorting census data that they use to plan for the needs of their communities.
It further argues that the plaintiffs have standing to challenge the citizenship question because the harm
they will suffer is not speculative. IMLA, ICMA and the Wake Forest University School of Law
Appellate Advocacy Clinic are co-counsel for this brief.

5
Brief of Central Valley Immigrant Integration Collaborative, et al. in Support of Respondents

Summary: This brief, filed by 25 California-based community organizations and service providers,
discusses recent research conducted in the San Joaquin Valley that found that the citizenship question will
significantly reduce census response rates for first- and second-generation Latinos. According to the brief,
the study further found that the citizenship question would frustrate the Census Bureau’s follow-up
processes for counting people who do not self-respond to the census. The National Immigration Law
Center is counsel for this brief.

Brief of the KIPP Foundation, et al. in Support of Respondents

Summary: This brief, filed on the behalf of nonprofit organizations serving children and students,
describes the “stigmatic and dignitary harms” that the citizenship question will have on children in
immigrant communities of color. The brief further explains how a differential undercount will undermine
the wellbeing of students and children of color, including the misallocation of federal funds for public
education programs and social services. The Vincent M. Southerland Center on Race, Inequality and the
Law and the Civil Rights Clinic at the New York University School of Law are co-counsel for this brief.

Brief of the Catholic Charities of the Archdiocese of New York, et al. in Support of Respondents

Summary: This brief, filed on the behalf of several faith-based organizations and nonprofits, argues that
the differential undercount caused by the citizenship question will undercut nonprofits’ abilities to
provide social services and increase competition for scarce resources in vulnerable communities. The law
firm of Sidley Austin LLP is counsel for this brief.

Brief of Legal Services NYC, et al. in Support of Respondents

Summary: This brief, filed by 24 public interest organizations and New York community members,
argues that census data is crucial to understanding the landscape of needs across their communities. As a
result, it further contends, an inaccurate count spurred by the citizenship question will harm their ability to
make informed decisions and provide public services. The law firm of Goodrich & Rosati, PC is counsel
for this brief.

Brief of National Council of Nonprofits, National Human Services Assembly, and YWCA USA in
Support of Respondents

Summary: This brief, filed by several nonprofit organizations, emphasizes the harms that an inaccurate
census will inflict on nonprofits’ abilities to achieve their missions by depriving them of federal funding,
corrupting the data they use to make decisions, and undermining their communities’ faith in the
usefulness of democratic engagement. The National Council of Nonprofits is counsel for this brief.

6
Briefs Discussing the Enumeration Clause
Brief for the City of San Jose and the Black Alliance for Just Immigration in Support of
Respondents

Summary: This brief, filed by the plaintiffs in a challenge to the citizenship question from California,
argues that the citizenship question bears no reasonable relationship to the Enumeration Clause’s essential
goal of achieving equal representation. The brief contends that the question will undercut the distributive
accuracy of the 2020 Census to a constitutionally impermissible extent, and that there is no legitimate
justification for putting the accuracy of the census at such great risk. The Lawyers’ Committee for Civil
Rights Under Law and the law firm of Manatt, Phelps & Phillips, LLP are co-counsel for this brief.

Brief of Plaintiffs in Kravitz v. United States Department of Commerce in Support of Respondents

Summary: This brief, filed by the plaintiffs in a challenge to the citizenship question from Maryland,
argues that the historical use of the census to ask other questions unrelated to the enumeration does not
make the citizenship question constitutional. This case, the brief posits, “presents the unique situation” in
which a proposed question “will directly impair” the goal of counting everyone, in violation of the
Enumeration Clause. The law firm of Covington & Burling LLP is counsel for this brief.

Brief of the California Legislature in Support of Respondents

Summary: This brief, filed by the California Legislature, argues that the trial court incorrectly dismissed
the plaintiffs’ Enumeration Clause claim before trial. Among other things, the brief contends, the trial
court erred in relying on the Administration’s historical argument because evidence at trial would have
rebutted that argument. The law firm of Remcho Johansen & Purcell is counsel for this brief.

Brief of the State of California in Support of Respondents

Summary: This brief, filed by the State of California, argues that the citizenship question would violate
the Enumeration Clause because it would result in a differential undercount that is constitutionally
intolerable. It further argues that the trial court correctly ordered extra-record discovery because abundant
evidence showed that the Commerce Department acted in bad faith and because extra-record evidence
helped clarify technical matters and allowed the court to determine all relevant factors that Secretary Ross
should have considered in making his decision. The Attorney General of California is counsel for this
brief.

Brief of United States House of Representatives in Support of Respondents

Summary: This brief, filed by the U.S. House of Representatives, argues that the Commerce Department
does not have unreviewable discretion to conduct the decennial census because the Department is limited
by the Census Act and by the commands of the Enumeration Clause. The Office of General Counsel for
the U.S. House of Representatives, the Institute for Constitutional Advocacy and Protection at the
Georgetown University Law Center, and the law firm of Hogan Lovells US are co-counsel for this brief.

7
Briefs Discussing the Administrative Procedure Act

Brief of Nicholas Bagley, et al. in Support of Respondents

Summary: This brief, filed by eight administrative and constitutional law scholars, argues that Secretary
Ross’s decision to add the citizenship question is subject to judicial review because the Constitution and
the Census Act limit the secretary’s power to conduct the census, and judicial review under the
Administrative Procedure Act provides an essential check on unreasoned agency decisionmaking. The
brief also argues that the plaintiffs have standing to challenge the citizenship question because the Census
Bureau’s own studies show that the question will harm the plaintiffs. The law firm of Kaplan Hecker &
Fink LLP is counsel for this brief.

Brief of Lawyers for Civil Rights, et al. in Support of Respondents

Summary: This brief, filed by nonprofit advocacy organizations, argues that the Administrative
Procedure Act ensures transparency and accountability in federal agency decision-making and that
judicial enforcement of the Act is a critical control on arbitrary agency action. Lawyers for Civil Rights
and the law firm of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. are co-counsel for this brief.

Brief for the Arab American Institute in Support of Respondents

Summary: This brief, filed by the Arab American Institute, compares the testing procedures the Census
Bureau undertook in deciding whether to add a Middle Eastern or North African (MENA) category to the
census with the lack of testing undertaken for the citizenship question. According to the brief, over the
decades-long testing process for the proposed MENA category, the Bureau concluded that even though
the category would improve the accuracy of census data, it required more testing and should not yet be
added to the 2020 Census. In contrast, the decision to add a citizenship question was made without
subjecting the question to any of the statutorily and regulatorily required testing, making it arbitrary and
capricious. The Arab American Institute, ESQelate, and Voruganti Law Firm, PLLC are co-counsel for
this brief.

Brief of National School Boards Association, et al. in Support of Respondents

Summary: This brief, filed by educational organizations, argues that the Commerce Department’s
decisions over the census are not committed by law to the Department’s unlimited discretion because the
Constitution and the Census Act place limits on the Department’s powers. The brief further argues that
the exception to judicial review of agency decisionmaking is narrow, highly disfavored, and should not be
applied to a case like the instant one that stands to impact billions of federal dollars flowing to vulnerable
populations. The National School Boards Association and the law firm of Latham & Watkins are co-
counsel for this brief.

Brief of Natural Resources Defense Council in Support of Respondents

Summary: This brief, filed by the Natural Resources Defense Council, argues that the trial court was
correct to order extra-record discovery because the plaintiffs made a strong showing of bad faith, and
because the extra evidence helped explain complex issues, allowing the court to better determine whether

8
the Commerce Department considered all the relevant factors for its decision to add the citizenship
question. The National Resources Defense Council is counsel for this brief.

Brief of Ronald A. Cass and Christopher C. Demuth, Sr. in Support of Petitioners

Summary: This brief, filed by two former government officials, argues that the trial court substituted its
own judgment for that of Secretary Ross’s when the court determined that the Secretary’s stated reasons
for the citizenship question were pretextual. The brief also contends that the judiciary is not allowed to
probe the mind of an agency decisionmaker. The law firm of Cass & Associates, PC is counsel for this
brief.

Brief of Immigration Reform Law Institute in Support of Petitioners

Summary: This brief, filed by the Immigration Reform Law Institute, argues that the Administrative
Procedure Act’s arbitrary-and-capricious standard of review is satisfied as long as an agency provides a
sufficiently reasonable basis for its decision. It further contends that the district court was wrong to
scrutinize whether the Commerce Department’s stated reason for adding the citizenship question was
pretextual. The Immigration Reform Law Institute is counsel for this brief.

Brief of Eagle Forum Education & Legal Defense Fund in Support of Petitioners

Summary: This brief, filed by the Eagle Forum Education and Legal Defense Fund, argues that the
plaintiffs in this case do not have standing to bring a lawsuit in federal court and that the Commerce
Department acted in accordance with the Administrative Procedure Act. Lawrence J. Joseph is counsel for
this brief.

Brief of the Becket Fund for Religious Liberty in Support of Neither Party

Summary: This brief, filed by the Becket Fund for Religious Liberty, takes no position on the merits of
the citizenship question. It argues that plaintiffs who make intentional discrimination claims under the
Equal Protection Clause should be entitled to limited extra-record discovery in Administrative Procedure
Act cases. The Becket Fund for Religious Liberty and the law firm of Winston & Strawn are co-counsel
for this brief.

Briefs Providing Additional Factual or Legal Context


Brief of Historians and Social Scientists in Support of Respondents

Summary: This brief, filed by a group of prominent census historians and social scientists, challenges the
Administration’s claim that the decision to add a citizenship question to the 2020 Census is merely a
“reinstatement” of a question “whose pedigree dates back nearly 200 years.” The brief explains that the
census has never asked for the citizenship status of everyone in the country, and, more importantly, the
census has changed in material ways that limit the usefulness of older censuses as models for
contemporary censuses. The law firm of Reed Smith, LLP is counsel for this brief

9
Brief of Electronic Privacy Information Center (EPIC) and Twenty-Three Legal Scholars in
Support of Respondents

Summary: This brief, filed by the Electronic Privacy Information Center (EPIC) and 23 experts in law
and technology, argues that the Census Bureau violated section 208 of the E-Government Act because it
failed to conduct a privacy impact assessment analyzing the potential privacy implications of the
citizenship question. EPIC is counsel for this brief.

Brief of Common Cause, et al. in Support of Respondents

Summary: This brief, filed by Common Cause and a group of prominent Republican officials, argues that
including the citizenship question on the 2020 Census violates federal law and the core constitutional
commitments to equal representation of all people, citizens and non-citizens alike. Common Cause and
the law firm of Patterson Belknap Webb & Tyler LLP are co-counsel for this brief.

Brief of the Fred T. Korematsu Center for Law and Equality, et al. in Support of Respondents

Summary: This brief, filed by concerned Japanese-American citizens, the Council on American-Islamic
Relations, and the Fred T. Korematsu Center, discusses historical incidents that have led immigrant
communities and communities of color to distrust the federal government. The Korematsu Center for Law
and Equality at the Seattle University School of Law, Ronald A. Peterson of the Law Clinic at Seattle
University School of Law, and the law firm of Akin Gump Strauss Hauer & Feld LLP are co-counsel for
this brief.

Brief of Citizens United, et al. in Support of Petitioners

Summary: This brief, filed by a group of foundations and social welfare organizations, argues that the
history of the Fourteenth Amendment indicates that the census does not have to count everyone in the
country. Restoring Liberty Action Committee and the law firm of William J. Olson, PC are co-counsel for
this brief

10