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State v. United States Department of Commerce

United States District Court, S.D. New York

July 26, 2018

STATE OF NEW YORK, et al., Plaintiff,
v.
UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants. NEW YORK IMMIGRATION COALITION, et al., Plaintiff,
v.
UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants.

          OPINION AND ORDER

          JESSE M. FURMAN, UNITED STATES DISTRICT JUDGE.

         INTRODUCTION..........................................................................................................................2

         BACKGROUND............................................................................................................................6

         LEGAL STANDARDS................................................................................................................14

         DISCUS SION...............................................................................................................................15

         A. Standing..................................................................................................................16

         1. Injury-in-Fact..............................................................................................17

         2. Traceability.................................................................................................23

         3. NGO Plaintiffs' Standing............................................................................29

         B. The Political Question Doctrine .............................................................................. 32

         C. The Administrative Procedure Act ......................................................................... 38

         D. The Enumeration Clause ......................................................................................... 46

         E. The Equal Protection Claim .................................................................................... 60

         CONCLUSION ............................................................................................................................. 68

         INTRODUCTION

         The Fourteenth Amendment to the Constitution provides that “Representatives shall be apportioned among the several States according to their respective Numbers, counting the whole number of persons in each State.” U.S. Const. amend. XIV, § 2. Article I of the Constitution provides, in turn, that the number of persons in each state is to be calculated by means of an “actual Enumeration” - known as the census - every ten years “in such Manner as [Congress] shall by Law direct.” Id. art. I, § 2, cl. 3. Since 1790, the government has conducted that “actual Enumeration” through questions - initially asked in person and, later, by means of written questionnaire - about both the number and demographic backgrounds of those living in each American household. Beginning in 1820, one such question concerned (in one form or another) citizenship status. The government ceased asking that question of everyone nationwide in 1960. Earlier this year, however, Secretary of Commerce Wilbur L. Ross, Jr., exercising authority delegated by Congress over the census, announced that he was reinstating the citizenship question on the 2020 census questionnaire. Secretary Ross explained that reinstatement of the citizenship question is necessary for the Department of Justice to enforce, and courts to adjudicate, violations of Section 2 of the Voting Rights Act of 1965, codified at 52 U.S.C. § 10301.

         Plaintiffs in these two related cases (which have been informally consolidated for purposes of scheduling and discovery) contend that Secretary Ross's decision to reinstate the citizenship question on the 2020 census questionnaire violates both the Constitution and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq. In 18-CV-2921, Plaintiffs are eighteen states and the District of Columbia, as well as various cities, counties, and mayors; they challenge the Secretary's decision under both Article I's Enumeration Clause and the APA. (Docket No. 214 (“SAC”), ¶¶ 178-97). In 18-CV-5025, Plaintiffs are five nongovernmental organizations, four suing on behalf of themselves and their members and one suing only on its own behalf; they challenge the Secretary's decision on the same grounds and also as a violation of equal protection, as embodied in the Due Process Clause of the Fifth Amendment. (18-CV-5025, Docket No. 1 (“NGO Compl.”), ¶¶ 193-212).[1] On May 25, 2018, Defendants - the United States Department of Commerce; Secretary Ross (the “Secretary”); the Bureau of the Census (the “Census Bureau”); and Acting Director of the Census Bureau, Ron Jarmin - moved, pursuant to Rule 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure, to dismiss the First Amended Complaint in 18-CV-2921. (Docket No. 154).[2] On June 29, 2018, Defendants moved to dismiss the Complaint in 18-CV-5025. (18-CV-5025, Docket No. 38). The Court held oral argument on the first motion on July 3, 2018. (See July 3, 2018 Transcript, Docket No. 207 (“Oral Arg. Tr.”))

         Broadly speaking, in this Opinion, the Court reaches three conclusions with respect to Defendants' motions. First, the Court categorically rejects Defendants' efforts to insulate Secretary Ross's decision to reinstate the citizenship question on the 2020 census from judicial review. Contending that Plaintiffs cannot prove they have been or will be injured by the decision, and citing the degree of discretion afforded to Congress by the Enumeration Clause and to the Secretary by statute, Defendants insist that this Court lacks jurisdiction even to consider Plaintiffs' claims. As the Court will explain, however, that contention flies in the face of decades of precedent from the Supreme Court, the Second Circuit, and other courts. That precedent makes clear that, while deference is certainly owed to the Secretary's decisions, courts have a critical role to play in entertaining challenges like those raised by Plaintiffs here.

         Second, the Court concludes that the citizenship question is a permissible - but by no means mandated - exercise of the broad power granted to Congress (and, in turn, to the Secretary) in the Enumeration Clause of the Constitution. That conclusion is compelled not only by the text of the Clause, which vests Congress with virtually unlimited discretion in conducting the census, but also by historical practice. The historical practice reveals that, since the very first census in 1790, the federal government has consistently used the decennial exercise not only to obtain a strict headcount in fulfillment of the constitutional mandate to conduct an “actual Enumeration, ” but also to gather demographic data about the population on matters such as race, sex, occupation, and, even citizenship. Moreover, it reveals that all three branches of the government - including the Supreme Court and lower courts - have blessed this dual use of the census, if not a citizenship question itself. In the face of that history and the broad constitutional grant of power to Congress, the Court cannot conclude that the Secretary lacks power under the Enumeration Clause to ask a question about citizenship on the census.

         Third, although the Secretary has authority under the Enumeration Clause to direct the inclusion of a citizenship question on the census, the Court concludes that the particular exercise of that authority by Secretary Ross may have violated NGO Plaintiffs' rights to equal protection of the laws under the Due Process Clause of the Fifth Amendment. That is, assuming the truth of NGO Plaintiffs' allegations and drawing all reasonable inferences in their favor - as the Court must at this stage of the proceedings - they plausibly allege that Secretary Ross's decision to reinstate the citizenship question on the 2020 census was motivated by discriminatory animus and that its application will result in a discriminatory effect. As discussed below, that conclusion is supported by indications that Defendants deviated from their standard procedures in hastily adding the citizenship question; by evidence suggesting that Secretary Ross's stated rationale for adding the question is pretextual; and by contemporary statements of decisionmakers, including statements by the President, whose reelection campaign credited him with “officially” mandating Secretary Ross's decision to add the question right after it was announced.

         The net effect of these conclusions is that Defendants' motions to dismiss are granted in part and denied in part. In particular, Plaintiffs' claims under the Enumeration Clause - which turn on Secretary Ross's power rather than his purposes - must be and are dismissed. By contrast, their claims under the APA (which Defendants seek to dismiss solely on jurisdictional and justiciability grounds) and the Due Process Clause - which turn at least in part on Secretary Ross's purposes and not merely on his power - may proceed.

         BACKGROUND

         As noted, the Constitution requires an “actual Enumeration” of “the whole number of persons in each State” every ten years, and grants to Congress authority to conduct that enumeration - commonly known as the census - “in such Manner as [Congress] shall by Law direct.” U.S. Const. art. 1, § 2, cl. 3 & amend. XIV. The modern census is governed by the Census Act, which was enacted in 1976. See 13 U.S.C. §§ 1 et seq. The Act delegates to the Secretary of Commerce the duty to “take a decennial census of population as of the first day of April of such year . . . in such form and content as he may determine.” 13 U.S.C. § 141(a). It further provides that “[t]he Secretary shall prepare questionnaires, and shall determine the inquiries, and the number, form, and subdivisions thereof, for the statistics, surveys, and censuses provided for in [the Act].” Id. § 5. The Secretary is required to submit “a report containing [his] determination of the questions proposed to be included” in the census “not later than 2 years before the appropriate census date.” Id. § 141(f)(2). After the census is taken, the President is tasked with transmitting to Congress “a statement showing the whole number of persons in each State . . . as ascertained under the . . . decennial census of the population, and the number of Representatives to which each State” is “entitled.” 2 U.S.C. § 2a(a).

         Significantly, consistent with the constitutional text, the decennial census endeavors to count all residents of the United States, regardless of their legal status. See Fed'n for Am. Immigration Reform v. Klutznick, 486 F.Supp. 564, 576 (D.D.C. 1980) (three-judge court) (“The language of the Constitution is not ambiguous. It requires the counting of the ‘whole number of persons' for apportionment purposes, and while illegal aliens were not a component of the population at the time the Constitution was adopted, they are clearly ‘persons.'”). The federal government, however, has long used the decennial census to do more than take a mere headcount of the population for purposes of apportioning Representatives. It has also used the census as a means to collect data - demographic and otherwise - on the population of the United States. See generally U.S. Census Bureau, Measuring America: The Decennial Censuses From 1790 to 2000 (“Measuring America”) (2002), available at http://www2.census.gov/library/ publications/2002/dec/pol02-ma.pdf. Notably, that practice began with the nation's very first census, taken in 1790, which was conducted by United States Marshals. See Act of March 1, 1790 (“1790 Census Act”), 1 Stat. 101, 101-02 (1790).[3] Congress directed the Marshals to ask each household, among other things, about “the sexes and colours of free persons” as well the age of residents, id. at 101, in order to “assess the countries [sic] industrial and military potential, ” Measuring America 5. As a history of the census prepared in 1900 for the Senate Committee on the Census described the first census: “Instead of providing simply for an enumeration of the population in 1790 . . . which would have answered all the requirements of the Constitution, ” Congress “called for [more information] . . . thus recognizing at the very outset the desirability of using the census as a means of securing data beyond the mere statement of population needed for apportionment purposes.” Carroll D. Wright, The History and Growth of the United States Census (“History and Growth”), S. Doc. No. 194, at 89 (1st Sess., 1900).

         The inquiries on the second and third censuses were largely the same as the first. See Measuring America 6; see also Act of Feb. 28, 1800 (“1800 Census Act”), 2 Stat. 11 (1800); Act of March 26, 1810, 2 Stat. 564 (1810). Unlike the first census, however, the second census also included a question about the town or city in which persons resided. See 1800 Census Act, 2 Stat. at 11-12. The third census, taken in 1810, also required the Marshals to give “an account of the several manufacturing establishments . . . within their several districts.” Act of May 1, 1810, 2 Stat. 605, 605 (1810). Interestingly, civic groups - including the American Philosophical Society, led by Thomas Jefferson - encouraged Congress to add questions regarding citizenship (and other topics) as early as the second census, but those proposals were rejected at that point without debate. See Wright, History and Growth 19-20. For reasons that are not clear, however, Congress did add a question about citizenship to the fourth census in 1820, directing enumerators to tally the number of “Foreigners not naturalized.” Act of March 14, 1820 (“1820 Census Act”), 3 Stat. 548, 550 (1820).

         The fifth census in 1830 - which was the first to rely on standardized, pre-printed forms - tallied all “white persons” who were “ALIENS - Foreigners not naturalized.” Act of March 23, 1830 (“1830 Census Act”), 4 Stat. 383, 389 (1830). For unknown reasons, the sixth census in 1840 did not ask about citizenship or birthplace, although it did include nearly every other question that had been asked in the fifth census, including questions regarding occupation, mental illness, and military service. See Wright, History and Growth 142-43 (reprinting the inquiries on the sixth census). The scope of the census then expanded materially in 1850, when it was overseen, for the first time, by a “census board” composed of “the Secretary of State, the Attorney-General, and the Postmaster-General.” Id. at 40. The census board prepared six “schedules” of inquiries, relating to “(1) free inhabitants, (2) slave inhabitants, (3) mortality, (4) productions of agriculture, (5) products of industry, and (6) social statistics.” Id. at 44-45. All “free inhabitants” were required to state their place of birth (“State, Territory, or country”), as well as the “[v]alue of real estate owned” and whether they were “deaf and dumb, blind, insane, idiotic, pauper, or convict.” See Act of May 15, 1850 (“1850 Census Act”), 9 Stat. 428, 433 (1850). Although the 1850 census required inhabitants to state their place of birth, it did not explicitly ask about citizenship.

         The questions in 1860 and 1870 were largely the same as those in 1850, although the 1870 census also included a question about whether the respondent's father or mother was “of foreign birth” and an explicit inquiry (no doubt prompted by the Civil War and ratification of the Fourteenth Amendment) as to “[m]ale [c]itizens of U.S. of 21 years of age and upwards, whose right to vote is denied or abridged on other grounds than rebellion or other crime.” See Measuring America 13. The 1880 census asked for the birthplaces of the respondent and of each respondent's parents (“naming the State or Territory of the United States, or the Country, if of foreign birth”). See Id. at 17. The 1880 census was also the first to be conducted by a newly established census office, led by the Superintendent of the Census and lodged in the Department of the Interior. See Wright, History and Growth 58-59. The census office prescribed similar questions for the 1890 census, asking for the respondent's and his or her parents' places of birth and, additionally, whether the respondent was naturalized and whether “naturalization papers have been taken out.” Measuring America 22.

         In the early 20th century, the federal government continued to use the census to gather data regarding citizenship and other topics.[4] The 1900, 1910, 1920, and 1930 censuses, in keeping with their immediate predecessors, asked about birthplace and parental birthplace; they also asked immigrant residents their year of immigration and whether they were naturalized. Id. at 34, 45-46, 58, 59. The 1940 census asked for residents' birthplace and for “[c]itizenship of the foreign born.” Id. at 62. The 1940 census was also the first to include supplemental questions that went to only a sample fraction of the population; on the 1940 census, these supplemental inquiries included a question about parental birthplace. Id. at 63. The 1950 census also asked all respondents for their birthplace and whether foreign-born residents were naturalized, and asked a sample of the population supplemental questions about, among other things, parental birthplace. Id. at 66-68.

         The 1960 census marked a departure from previous censuses in several respects. See generally Margo J. Anderson, The American Census: A Social History 201-06 (1988). For one, it was the first census to rely principally on the mail to distribute and collect questionnaires. U.S. Bureau of the Census, 1960 Censuses of Population and Housing: Procedural History (“1960 Censuses of Population and Housing”) 1 (1966), available at http://www2. census.gov/prod2/decennial/documents/1960/proceduralHistory/1960proceduralhistory.zip. It was also the first census to pose the majority of questions to only a fraction of the population: The census posed only five questions to all respondents, with more detailed questions going to twenty-five percent of the population. Measuring America 72. The five universal questions included the respondent's relationship to the head of household, sex, color or race, marital status, and month and year of birth. See 1960 Censuses of Population and Housing 364. The lengthier questionnaire that went to a sample of the population included questions regarding respondents' and parental birthplace, highest level of education attained, salary earned, and how many working television sets a household had. Id. at 73-75.

         Notably, the 1960 census was the first since 1840 not to include a question about citizenship (or birthplace) for all residents. It did, however, ask all residents of New York and Puerto Rico about citizenship - the former “at the expense of the State, to meet State constitutional requirements for State legislative apportionment” and the latter, at the request of a census advisory committee, “to permit detailed studies of migration.” 1960 Censuses of Population and Housing 10, 130. In a review of the census, the Census Bureau explained the decision not to ask all respondents about citizenship as follows: “It was felt that general census information on citizenship had become of less importance compared with other possible questions to be included in the census, particularly in view of the recent statutory requirement for annual alien registration which could provide the Immigration and Naturalization Service, the principal user of such data, with the information it needed.” Id. at 194.

         Between 1970 and 2000, the census continued to feature a short questionnaire distributed to the vast majority of the population (known as the “short-form census”) and a longer questionnaire, which included both the inquiries on the shorter questionnaire as well as additional questions, distributed to a sample of the population (known as the “long-form census”). During that time, none of the short-form questionnaires included a question about citizenship or birthplace. See Measuring America 77 (1970), 84 (1980), 91 (1990), 100 (2000). But each long-form census, which went to approximately one sixth of households, did. See Id. at 78 (1970), 85 (1980), 92 (1990), 101 (2000). In 2010, the Census Bureau dropped the long-form questionnaire altogether, a change that was precipitated by the introduction, in 2005, of the American Community Survey (“ACS”). See Jennifer D. Williams, The 2010 Decennial Census: Background and Issues 3 (2011), available at https://www.census.gov/ history/pdf/2010-background-crs.pdf. Unlike the decennial census, the ACS is conducted annually and is not used to obtain an “actual Enumeration” of the population for purposes of apportionment; instead, it is given each year to only about 3.5 million households - roughly one in every thirty-eight households in the country - for the sole purpose of collecting demographic data on the population. (SAC ¶¶ 74, 98 n.43). The ACS “requires citizens to disclose whether they were born in ‘United States territories,' whether they were born ‘abroad' to U.S. parents, or if and when they were ‘naturalized.'” (Id. ¶ 76).[5] The 2010 census asked about “the age, sex, race, and ethnicity (Hispanic or non-Hispanic) of each person in a household, ” as well as “whether the housing unit was rented or owned by a member of the household.” Williams, The 2010 Decennial Census: Background and Issues 3. It did not ask about citizenship.

         Thus, the last time that the census asked every respondent about citizenship was sixty-eight years ago, in 1950. Notably, since then, the Census Bureau and former Bureau officials have opposed periodic efforts to reinstate a citizenship question on a universal basis. In 1980, for example, several plaintiffs (including the Federation for American Immigration Reform, which appears here as amicus curiae in support of Defendants) sued the Census Bureau, contending that the census was constitutionally required to count only citizens. Fed'n for Am. Immigration Reform, 486 F.Supp. at 565. In that litigation, the Census Bureau argued that reinstating a citizenship question for all respondents would “inevitably jeopardize the overall accuracy of the population count” because noncitizens would be reluctant to participate, for fear “of the information being used against them.” Id. at 568. Likewise, in Congressional testimony prior to the 1990 census, Census Bureau officials opposed reinstating a citizenship question for all respondents, opining that it could cause people to “misunderstand or mistrust the census and fail or refuse to respond.” Exclude Undocumented Residents from Census Counts Used for Apportionment: Hearing on H.R. 3639, H.R. 3814, and H.R. 4234 Before the Subcomm. on Census & Population of the H. Comm. on Post Office & Civil Serv., 100th Cong. 50-51 (1988) (statement of John G. Keane, Director, Bureau of the Census); see also Census Equity Act: Hearings on H.R. 2661 Before the Subcomm. on Census & Population of the H. Comm. on Post Office & Civ. Serv., 101st Cong. 42-44 (1989) (statement of C. Louis Kincannon, Deputy Director, Bureau of the Census). Before the 2010 census, former Bureau Director Kenneth Prewitt testified before Congress to the same effect. See Counting the Vote: Should Only U.S. Citizens Be Included in Apportioning Our Elected Representatives?: Hearing Before the Subcomm. on Federalism & the Census of the H. Comm. on Gov't Reform, 109th Cong. 73 (2005) (statement of Kenneth Prewitt). And finally, just two years ago, several former Bureau Directors wrote in an amicus curiae brief to the Supreme Court (in a case about the use of total population in intrastate redistricting) that a “citizenship inquiry would invariably lead to a lower response rate to the Census.” Brief of Former Directors of the U.S. Census Bureau as Amici Curiae in Support of Appellees at 25, Evenwel v. Abbott, 136 S.Ct. 1120 (2016).

         Earlier this year, however, the Census Bureau reversed course. Specifically, on March 26, 2018, Secretary Ross issued a memorandum directing the Census Bureau to reinstate the citizenship question on the 2020 decennial census. (SAC ¶ 3; see also Docket No. 173 (“Admin. Record”), at 1313-20 (“Ross Mem.”)).[6] Secretary Ross asserted that he included the citizenship question in response to a letter from the Department of Justice (“DOJ”) dated December 12, 2017. (SAC ¶ 94). The DOJ letter, in turn, requested the question's reinstatement on the grounds that more granular citizenship data was necessary to enforce Section 2 of the Voting Rights Act, which prohibits discriminatory voting laws. (Id. ¶ 95). After considering several options - including maintaining the status quo and using “administrative records to calculate citizenship data, ” (id. ¶ 81 (internal quotation marks omitted)) - the Secretary concluded that the “value of more complete citizenship data outweighed concerns regarding non-response.” (Id. ¶ 82). Two days later, President Trump's campaign sent an e-mail to supporters stating that “President Trump has officially mandated that the 2020 United States Census ask people living in America whether or not they are citizens.” (NGO Compl. ¶ 178). These lawsuits (and others, elsewhere) followed.

         LEGAL STANDARDS

         Defendants move to dismiss pursuant to Rules 12(b)(1) and 12(b)(6). A Rule 12(b)(1) motion challenges the court's subject-matter jurisdiction to hear the case. “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). “In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all uncontroverted facts in the complaint (or petition) as true, and draw all reasonable inferences in favor of the party asserting jurisdiction.” Fountain v. Karim, 838 F.3d 129, 134 (2d Cir. 2016) (quoting Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014)). Additionally, a court “may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, but [the Court] may not rely on conclusory or hearsay statements contained in the affidavits.” J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004). Ultimately, “[t]he plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence.” Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005).

         By contrast, a Rule 12(b)(6) motion tests the legal sufficiency of a complaint and requires a court to determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). When ruling on a Rule 12(b)(6) motion, a court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See, e.g., Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009). To survive such a motion, however, the plaintiff must plead sufficient facts “to state a claim to relief that is plausible on its face.Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556); see also Twombly, 550 U.S. at 570 (noting that a claim must be dismissed if the plaintiffs “have not nudged their claims across the line from conceivable to plausible”).

         DISCUSSION

         Defendants make four arguments with respect to the operative complaints in both cases, and one argument unique to NGO Plaintiffs' Complaint in 18-CV-5025. First, they contend that Plaintiffs in both cases lack Article III standing because Plaintiffs do not allege an injury-in-fact that is fairly traceable to Defendants' conduct. (See Docket No. 155 (“Defs.' Br.”), at 13-21). Second, they assert that all of the claims pressed by Plaintiffs are barred by the political question doctrine. (See Id. at 21-26). Third, they insist that the decision as to what questions should be included in the census questionnaire is committed by law to agency discretion and, thus, that Secretary Ross's decision is not subject to judicial review under the APA. (See Id. at 26-30). Fourth, they aver that Plaintiffs fail to state a claim under the Enumeration Clause. (See Id. at 30-35). And finally, they argue that NGO Plaintiffs fail to state an equal protection claim under the Due Process Clause. (See 18-CV-5025, Docket No. 39 (“Defs.' NGO Br.”), at 16-19). The Court will address each of those arguments in turn.

         A. Standing

         Article III of the Constitution restricts the “judicial Power” of the United States to “Cases” and “Controversies.” U.S. Const. art. III, § 2. In light of that restriction, a party invoking the court's jurisdiction - the plaintiff - must have “standing” to sue. See, e.g., Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408 (2013). To have standing, a plaintiff must establish three elements. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Specifically, a “plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016) (citing Lujan, 504 U.S. at 560-61). Significantly, each element “must be supported . . . with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561. At the pleading stage, a plaintiff need only “clearly . . . allege facts demonstrating” each element. Warth v. Seldin, 422 U.S. 490, 518 (1975); see also John v. Whole Foods Mkt. Grp., Inc., 858 F.3d 732, 736 (2d Cir. 2017) (“[B]ecause [the defendant] mounts only a ‘facial' challenge to [the plaintiff's] allegations of standing, [the plaintiff] bears no evidentiary burden at the pleading stage.”); Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56 (2d Cir. 2016) (“When the Rule 12(b)(1) motion is facial, . . . [t]he task of the district court is to determine whether the Pleading allege[s] facts that affirmatively and plausibly suggest that [the plaintiff] has standing to sue.” (second and third alterations in original) (internal quotation marks omitted)). Further, where there are multiple plaintiffs, as here, only one must establish the elements of standing for the case to proceed. See, e.g., Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F.3d 104, 109 (2d Cir. 2017).

         In this case, Defendants contend that Plaintiffs fail to establish that they have been injured in fact and that any injury is traceable to the challenged conduct. (See Defs.' Br. 13-14). Additionally, they make a handful of arguments specific to whether NGO Plaintiffs have standing. (See Defs.' NGO Br. 4-15). The Court will address the common arguments first.

         1. Injury-in-Fact

         The injury-in-fact requirement is meant to “ensure that the plaintiff has a ‘personal stake in the outcome of the controversy.'” Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334, 2341 (2014) (quoting Warth, 422 U.S. at 498). To establish injury-in-fact, a plaintiff must demonstrate an injury that is “concrete, particularized, and actual or imminent.” Clapper, 568 U.S. at 409. “Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative . . . .” Id. Nevertheless, a plaintiff may allege a “future injury” if he or she shows that “the threatened injury is ‘certainly impending,' or there is a ‘substantial risk' that the harm will occur.” Susan B. Anthony List, 134 S.Ct. at 2341 (emphasis added) (quoting Clapper, 568 U.S. at 409, 414 n.5 (2013)).[7] Plaintiffs easily meet their burden at this stage of the proceedings.

         Plaintiffs' theory of injury proceeds in two steps, each of which is amply supported by allegations in their operative complaints - allegations that the Court must assume are true in deciding this motion. First, Plaintiffs contend that Defendants' inclusion of a citizenship question on the census will “drive down response rates and seriously impair the accuracy of the decennial population count.” (SAC ¶ 39; accord NGO Compl. ¶ 4). In support of that assertion, Plaintiffs proffer an array of evidence - much of it from Defendants themselves. For instance, Plaintiffs cite the Census Bureau's own argument in 1980 that “any effort to ascertain citizenship will inevitably jeopardize the overall accuracy of the population count” because “[q]uestions as to citizenship are particularly sensitive in minority communities and would inevitable trigger . . . refusal to cooperate.” (SAC ¶ 40 (quoting Fed'n for Am. Immigration Reform, 486 F.Supp. at 568); accord NGO Compl. ¶ 84). Plaintiffs also cite testimony, interviews, and an amicus brief filed by former Directors of the Census Bureau, arguing in sum and substance that the “citizenship inquiry would invariably lead to a lower response rate to the Census in general.” (SAC ¶¶ 39-47; accord NGO Compl. ¶¶ 81-90). Moreover, Plaintiffs plausibly allege that this risk is “heightened in the current political climate because of President ...


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