Kravitz v. U.S. Dep't of Commerce (366 F. Supp. 3d 681, 2019)

United States District Court for the District of Maryland 2019-04-05

Census The Public Health and Welfare Public Printing and Documents Government Organization and Employees

Citations

Full opinion text

GEORGE J. HAZEL, United States District Judge

TABLE OF CONTENTS

I. Findings of Fact...692

A. The Secretary's Decision (Administrative Record)...693

1. Genesis of Secretary Ross's Interest in Including a Citizenship Question...693

2. Manufacturing DOJ's VRA Rationale...695

3. Census Bureau Research, Analysis, and Recommendations...698

4. Secretary Ross and Staff Persist...701

B. The Secretary's Decision (Extra-Record Evidence)...706

C. Standing...712

1. Differential Decline in Census Participation...713

2. Differential Undercount of at Least 2 Percentage Points...716

3. Effect of a Differential Undercount...722

4. Additional Harms...732

II. Conclusions of Law...733

A. Standing...736

1. Injury to Individual Plaintiffs and Members of Organizational Plaintiffs...736

2. Causation and Redressability of Individual Plaintiffs' and Member Plaintiffs' Injuries...740

3. Organizational Plaintiffs' Standing...741

B. APA Claims...742

1. The Decision to Add the Citizenship Question Was Arbitrary and Capricious and Must Be Set Aside Under APA § 706(2)(A)-(D)....743

2. Secretary Ross's Stated Rationale was Pretextual in Violation of the APA....749

C. Enumeration Clause Claims...751 D. Equal Protection and 42 U.S.C. § 1985 Claims...752

E. Remedies...755

III. Conclusion...756

Plaintiffs in these related cases challenge Commerce Secretary Wilbur Ross's decision to include a citizenship question on the 2020 Census. Plaintiffs contend that the addition of a citizenship question violates the Administrative Procedure Act (APA) and the United States Constitution. The LUPE Plaintiffs also allege that the question was added as part of a conspiracy to violate their civil rights in violation of 42 U.S.C. § 1985. The Court held a six-day bench trial between January 22 and January 31, 2019. Pursuant to Federal Rule of Civil Procedure 52(a)(1), this memorandum opinion contains the Court's findings of fact and conclusions of law, resolving Plaintiffs' claims. For the following reasons, the Court concludes: Plaintiffs have standing to assert their claims; the decision to add a citizenship question to the 2020 Census was arbitrary and capricious in violation of the APA; the Defendants' actions violate the Constitution by unreasonably compromising the distributive accuracy of the Census contrary to the Enumeration Clause's mandate; and Plaintiffs did not meet their burden to prove Defendants' actions violate the Due Process Clause or amount to a conspiracy to violate civil rights because Plaintiffs failed to show that the addition of the citizenship question was motivated by invidious racial discrimination.

Discovery here was coordinated with the discovery conducted in two consolidated cases before Judge Jesse M. Furman of the United States District Court for the Southern District of New York (together, the "New York Case"), and the parallel Census cases pending before Judge Richard G. Seeborg in the United States District Court for the Northern District of California (together, the "California Case"). See New York v. U.S. Dep't of Commerce , No. 1:18-cv-02921-JMF (S.D.N.Y.) (N.Y. Docket); State of Cal. v. Ross , No. 3:18-cv-01865-RS (N.D.C.A 2018) (California Docket). In those cases and here, Defendants objected to consideration of any discovery beyond the material in the Administrative Record. Given the limited time for appellate review of these matters prior to the start of the 2020 Census, this Court borrows from the approach taken by Judges Furman and Seeborg and will attempt to distinguish facts and conclusions of law based exclusively on the Administrative Record from those supported by extra-record evidence. Plaintiffs and Defendants have stipulated that the Administrative Record includes both 1) the initial materials compiled and submitted by Defendants, PX-1 (AR 1-1320) and 2) the supplemental materials, PX-3 to PX-14 (AR 1322-AR 13024), that Defendants produced in compliance with Judge Furman's order that they complete the initial administrative record, N.Y. Docket, ECF No. 199 (Jul. 5, 2018), after Secretary Ross's supplemental memorandum demonstrated that the initial record was deficient, PX-2 (AR 1321). Joint Stipulation Admitting Trial Exhibits, ECF No. 134.

The Court will now begin its analysis by discussing the facts found to be proven by a preponderance of the evidence at trial, followed by the conclusions of law reached by applying those facts to the applicable legal principles, and, finally, the appropriate remedy.

I. Findings of Fact

1. To conduct the modern person-by-person Decennial Census count, the Census Bureau sends a short questionnaire with only a handful of questions to virtually every housing unit in the United States. ECF No. 103-1, Joint Stips. ¶ 20. For the 2020 Census, in addition to responding by mail, households will also be given the option to complete the questionnaire online or over the phone. Id. ¶ 22. If a household does not self respond, the Census Bureau then sends a staffer, known as an enumerator, to the housing unit to attempt to collect data via an in-person interview. Id. ¶ 23. This process is the first step in the Census Bureau's Non Response Follow Up (NRFU) operation. Id.

2. For the 2020 Census, the Census Bureau has proposed using administrative records to enumerate a limited number of those households for which there are high quality administrative data about the household if the initial NRFU visit does not result in the collection of complete data for that household. Id. ¶ 24. The Census Bureau will have enumerators attempt to recontact households for which high-quality administrative records do not exist. Id. ¶ 25. If by the third contact attempt a household has not responded, the housing unit will become "proxy-eligible." Id. ¶ 26. A proxy is someone who is not a member of the household-such as a neighbor, landlord, postal worker, or other knowledgeable person who can provide information about the unit and the people who live there. Id. ¶ 27. After three proxy attempts, a household becomes eligible for what is known as "whole-person imputation" or "whole-household imputation," in which the Census Bureau imputes the characteristics of the household, including in some circumstances the household member count. See id. ¶ 29. After the NRFU process is completed, the Census Bureau counts the responses from every household to determine the population count in each state. Id. ¶ 30. Data from the Decennial Census are reported down to the census block. Id. ¶ 31.

3. Between 1970 and 2000, the Census Bureau used both the short-form questionnaire (described above) and a long-form questionnaire (containing inquiries on the short-form questionnaire as well as additional questions), which was distributed to only a sample of the population. See U.S. CENSUS BUREAU, MEASURING AMERICA: THE DECENNIAL CENSUSES FROM 1790 TO 2000 , http://www2.census.gov/library/publications/2002/dec/pol_02-ma.pdf, 77-78, 84-85, 91-92, 99-100. During that time, the long-form questionnaire contained a citizenship question, but the short-form questionnaire did not. Id.

4. In 2005, the Census Bureau began administering the American Community Survey (ACS), a yearly survey of approximately 3.5 million households or 1 in every 38 households across the United States. ECF No. 103-1, Joint Stips. ¶ 72. The ACS replaced the long-form questionnaire. Id. ¶ 70. While the Decennial Census is intended to provide an actual enumeration for apportionment and other purposes, the ACS is intended to provide information on characteristics of the population, and the social and economic needs of communities. Id. ¶ 80. Unlike the short-form Census questionnaire, which asks only a handful of questions, the ACS asks more than 50 questions, including a citizenship question. Id. ¶ 73. The data collected by the ACS allows the Census Bureau to produce estimates of Citizen Voting Age Population (CVAP). Id. ¶ 77. CVAP data based on responses to the ACS are reported by the Census Bureau down to the census block group level. Id. ¶ 78.

A. The Secretary's Decision (Administrative Record)

5. On March 26, 2018, Secretary Ross issued a memorandum directing the Census Bureau to add a citizenship question to the 2020 Census. See PX-26 (AR 1313-20) (Ross Memo). He asserted that the decision was prompted by a December 12, 2017 letter from DOJ, requesting the addition of a citizenship question to facilitate enforcement of Section 2 of the Voting Rights Act (VRA). PX-26 (AR 1313). The Ross Memo states that DOJ needed to obtain CVAP block level data from Decennial Census data because "current data collected under the ACS are insufficient in scope, detail, and certainty to meet its purpose." PX-26 at 2 (AR 1314). Secretary Ross further states that the DOJ's "need for accurate citizenship data and the limited burden that the reinstatement of the citizenship question would impose outweigh fears about a potentially lower response rate." Id. at 5 (AR 1317). As described in more detail below, the genesis of the DOJ letter demonstrates the VRA rationale was a pretext, and the statements in the Ross Memo contradict the unanimous opinion of the Census Bureau that DOJ's stated goal could be achieved through a superior alternative and that adding a citizenship question to the Census would result in less accurate and less complete citizenship data while harming the overall quality of Census data and increasing costs and respondent burden. PX-22 (AR 1277); PX-132 (AR 9812); PX-102 (AR 5500); PX-147 (AR 11634); PX-100 (AR 5473).

1. Genesis of Secretary Ross's Interest in Including a Citizenship Question

6. The Senate confirmed Secretary Ross on February 27, 2017, see 163 CONG. REC. S1421, S1455 (2017), and by March 10, 2017 the Secretary's interest in a citizenship question had surfaced. PX-55 (AR 2521). On that day, Deputy Chief of Staff and Director of Policy Earl Comstock emailed Secretary Ross in response to a question the Secretary had posed regarding the Census with confirmation that "undocumented residents (aliens) in the 50 states" are "included in the apportionment population counts." Id at 1 (AR 2521);

ECF No. 103-1, Joint Stips. ¶ 3. The email also included the text of a Wall Street Journal article titled "The Pitfalls of Counting Illegal Immigrants." PX-55 (AR 2521).

7. Although Secretary Ross spoke with various "senior Administration officials" and "other governmental officials" about adding a citizenship question to the Census around this time, PX-2 (AR 1321), the record is largely void of details regarding these conversations. The record does show, however, that in early April 2017, White House Chief Strategist Steve Bannon contacted Secretary Ross to ask the Secretary if he would speak to Kansas Secretary of State Kris Kobach about adding a citizenship question to the Census. PX-19 (AR 763); PX-58 (AR 2651). Thereafter, complying with Bannon's request, Kobach and Secretary Ross discussed Kobach's ideas about adding a citizenship question to the Decennial Census, and "the fact that the US census does not currently ask respondents about their citizenship." PX-19 at 2 (AR 764). Secretary Ross and Kobach discussed the potential effect adding "one simple question" to the Census would have on "congressional apportionment." Id.

8. On April 13, 2017, Comstock emailed Mark Neuman, the point person for President Trump's transition team on the Census, asking when the Census Bureau must "notify Congress regarding the questions that will be on (A) the ACS and (B) the decennial Census." PX-87 (AR 3709). Neuman responded that the notification to Congress "relating to questionnaire content additions for 2020 Census just took place." Id. The Department had transmitted to Congress the Census Bureau report entitled Subjects Planned for the 2020 Census Program two weeks earlier. PX-1 (AR 202-13). That report included five planned "subjects" for the 2020 Census: age, gender, race/ethnicity, relationship, and tenure (owner/renter). Id. It did not include citizenship. See id. Neuman reassured Comstock that there would be "another opportunity" to notify Congress about Census questions "next year." PX-87 (AR 3709).

9. On April 20, 2017, the Secretary emailed Comstock and Senior Advisor and Chief of Staff to Secretary Ross, Wendy Teramoto, noting that then-Census Director John Thompson had an upcoming meeting with the Census National Advisory Committee on Racial, Ethnic and Other Populations (NAC), and emphasizing: "We must get our issue resolved before this!" PX-81 (AR 3694) (emphasis in original). Secretary Ross's personal assistant sent this note from her account but explained in the subject line that she had tried unsuccessfully to send it from Secretary Ross's email and that "it's from him." Id.

10. Secretary Ross then complained in a May 2, 2017 email to Comstock: "Worst of all they emphasize that they have settled with congress on the questions to be asked. I am mystified why nothing ha[s] been done in response to my months old request that we include the citizenship question. Why not?" PX-88 (AR 3710). Comstock responded:

I agree Mr. Secretary.

On the citizenship question we will get that in place.... We need to work with Justice to get them to request that citizenship be added back as a census question, and we have the court cases to illustrate that DOJ has a legitimate need for the question to be included. I will arrange a meeting with DOJ staff this week to discuss.

PX-88 (AR 3710). Immediately after this exchange, Comstock and other Commerce officials began implementing the plan to solicit from DOJ a request to add a citizenship question. PX-84 (AR 3701); PX-537 (AR 12756); PX-51 (AR 2462).

2. Manufacturing DOJ's VRA Rationale

11. On May 4, 2017, Comstock emailed the White House Liaison at DOJ requesting a call. PX-51 (AR 2462); PX-537 (AR 12756). They then "met in person to discuss the citizenship question" and Comstock was put in touch with James McHenry, the head of DOJ's Executive Office of Immigration Review. PX-537 (AR 12756). After speaking with Comstock "several times," however, McHenry advised Comstock that "Justice staff did not want to raise the [citizenship] question given the difficulties Justice was encountering in the press at the time (the whole Comey matter)." Id.

12. Because DOJ was reluctant to request a citizenship question, McHenry referred Comstock to Gene Hamilton at the Department of Homeland Security (DHS).Id. But after "several phone calls" with Hamilton, Comstock was told that DHS "really felt that it was best handled by the Department of Justice." Id. After both DOJ and DHS declined to pursue a citizenship question, Comstock asked James Uthmeier, who had recently moved from Secretary Ross's office to the Office of General Counsel, to look into "how Commerce could add the question to the Census itself." Id.

13. The Secretary also involved David Langdon, a Senior Policy Advisor who reported to Comstock. See ECF No. 103-1, Joint Stips. ¶ 11; PX-150 (AR 12541). In late May 2017, Langdon had an unusually lengthy meeting with the Secretary about the Census. PX-150 at 2 (AR 12542). Langdon reported that the Secretary was interested in Census subjects and "puzzled why citizenship is not included in 2020." Id. at 1 (AR 12541). Following the meeting, Langdon requested further information from Census Bureau staff, including Census Bureau Chief of Decennial Communications and Stakeholder Relations Burton Reist, regarding "the criteria used to pick topics for 2020 versus ACS. Say, citizenship." Id. Langdon collected this and other citizenship-related materials from Reist, including a 1988 internal DOJ memorandum asserting that the Constitution does not require counting of undocumented residents in the Decennial Census. PX-618 (AR); PX-619 (AR). On the same day as Langdon's meeting with the Secretary and communications with Census Bureau staff, Langdon emailed Comstock a note with the subject line "Counting of illegal immigrants," in which he informed Comstock that the Census is required to count all persons: "Long story short," he wrote, "is that the counting of illegal immigrants (or of the larger group of noncitizens) has a solid and fairly long legal history." PX-565 (AR). He also wrote, "a second piece of interest in [sic] a Bush 41 era DOJ opinion that proposed legislation to exclude illegal aliens from the decennial census was illegal." Id. PX-565 (AR). Around 11:00 PM that same day, Langdon made an apparently urgent request to Acting Associate Director of the 2020 Census Lisa Blumerman to respond to his inquiry related to a citizenship question, asking for a response, "[i]deally this evening." PX-150 at 1 (AR 12541).

14. On July 14, 2017, Kobach emailed Secretary Ross to follow up on their prior telephone discussion about adding a citizenship question. PX-19 (AR 763). Kobach wrote that the lack of a citizenship question "impairs the federal government's ability to do a number of things accurately," and "also leads to the problem that aliens who do not actually 'reside' in the United States are still counted for congressional apportionment purposes." Id. at 2 (AR 764). Kobach urged that it was "essential" to add a citizenship question to the 2020 Census and offered "any assistance that I can provide to accomplish the addition of this question." Id. Kobach specifically suggested the addition of a "slight variant" of the citizenship question that appears on the ACS. Id. Kobach did not mention the VRA or any rationale tied to VRA enforcement. Id.

15. On July 21, 2017, Kobach called and then emailed Wendy Teramoto, re-copying his July 14 email and noting his previous discussion about the citizenship question with the Secretary was "at the direction of Steve Bannon." Id. at 1 (AR 763). On July 25, 2017, Secretary Ross had a further telephone conversation with Kobach concerning the addition of a citizenship question to the 2020 Decennial Census, in which Teramoto and Deputy Chief of Staff Israel Hernandez participated. Id.

16. On August 8, 2017, Secretary Ross emailed Comstock to ask whether he was on a morning call about the Census, and to check in about whether DOJ had still "not come to a conclusion" about requesting the citizenship question. PX-97 (AR 4004). He asked Comstock to "please let me know your contact person and I will call the AG." Id. Comstock responded, "I have two attorneys in the DoC [ (i.e. Department of Commerce) ] General Counsel's office working on it." Id. The next day, Comstock advised the Secretary that "we are preparing a memo and full briefing for you on a citizenship question. The memo will be ready by Friday." PX-523 (AR 12476). Comstock cautioned: "Since this issue will go to the Supreme Court we need to be diligent in preparing the administrative record." Id. Secretary Ross responded on August 10, 2017 that the team "should be very careful, about everything, whether or not it is likely to end up in the SC." Id. The following day, Comstock and Uthmeier exchanged edits on briefing materials regarding the citizenship question and later sent the memorandum to the Secretary and Teramoto. See PX-50 (AR 2461); PX-146 (AR 11362). Uthmeier told Comstock that he looked forward to discussing his "new ideas/recommendations on execution," and observed that "[u]ltimately, we do not make decisions on how the [citizenship] data will be used for apportionment, that is for Congress (or possibly the President) to decide." PX-607 at 2 (AR). He added, "I think that's our hook here." Id.

17. On September 1, 2017, Secretary Ross wrote to Comstock and Teramoto that he had "received no update" on "the issue of the census question." PX-45 (AR 2424); PX-96 (AR 4002). Comstock responded, "Understood. Wendy and I are working on it." PX-96 at 1 (AR 4002). On September 6, 2017, Secretary Ross met with his senior staff including the new-Commerce General Counsel Peter Davidson, Under Secretary Karen Dunn Kelley, Teramoto, Comstock, and Uthmeier to discuss the citizenship question. PX-31 (AR 1411); PX-35 (AR 1996); PX-46 (AR 2426). The next day, Comstock emailed Uthmeier and Davidson stating that Secretary Ross "would like an update on progress since the discussion yesterday regarding the citizenship question." PX-37 (AR 2034); PX-49 (AR 2459). After receiving Uthmeier's response (withheld as privileged), Comstock reiterated "the Secretary is asking for progress on this." PX-49 at 1 (AR 2459). Davidson then wrote to Comstock, Uthmeier, and Teramoto expressing concern about directly contacting Kobach-whom Secretary Ross had mentioned in the September 6, 2017 meeting. PX-614 at 3 (AR). Davidson recommended instead contacting a "trusted" advisor, such as Neuman, before doing "anything externally." Id. Following Davidson's suggestion, on September 8, 2017, Uthmeier emailed Neuman on September 8, 2017, asking if Neuman had a "few minutes" that morning "to discuss" the Census. PX-38 (AR 2051_0001).

18. That same day, Comstock sent Secretary Ross an informal memorandum summarizing his so-far unsuccessful efforts to find an agency willing to request the addition of a citizenship question. See PX-537 (AR 12756). He reported on his discussions with McHenry at DOJ and Hamilton at DHS. Id. Around this time, impatient with the Department's failed efforts, Secretary Ross implemented his earlier promise to take the matter of inquiring whether DOJ would request inclusion of a citizenship question, PX-2 (AR 1321), into his own hands by involving Attorney General Jeff Sessions. PX-67 (AR 2653).

19. On September 13, 2017, John Gore, the then-Acting Assistant Attorney General for Civil Rights, emailed Teramoto to introduce himself and request a call "about a DOJ-DOC" issue. PX-68 (AR 2659); PX-59 (AR 2628); PX-60 (AR 2634). The Administrative Record does not specifically reveal what prompted Gore to make this contact, despite DOJ's prior reluctance to work on the citizenship question issue. However, Gore's outreach occurred about a month after Secretary Ross indicated he would "call the AG" to make progress with DOJ, PX-97 (AR 4004), and days before the Attorney General's assistant scheduled a call between Secretary Ross and the Attorney General, PX-63 (AR 2639); PX-67 (AR 2653). Regarding the substance of the call, the Attorney General's assistant told Teramoto: "From what John [Gore] told me, it sounds like we can do whatever you all need us to do and the delay was due to a miscommunication. The AG is eager to assist." PX-67 (AR 2653); PX-68 (AR 2659).

20. On September 18, 2017, Secretary Ross and Attorney General Sessions spoke about the citizenship question. PX-62 (AR 2637). It is not clear from the record whether this was their first communication about the Census. On December 12, 2017, DOJ submitted a letter signed by the General Counsel for the Justice Management Division, Arthur Gary, to the Census Bureau requesting that a citizenship question be asked on the 2020 Census. PX-32 at 3 (AR 1525). Gary had previously notified the Department of Commerce in November 2016 that DOJ had no need to amend the content of the ACS, except that DOJ wanted the Census Bureau to consider adding a new topic to the ACS relating to LGBT populations. PX-17 at 1 (AR 311). DOJ attached to this earlier request a spreadsheet reflecting "the legal authority supporting the necessity for the collection of this information." Id. at 2-5. Gary's November 2016 letter did not refer to citizenship and did not indicate any need by DOJ for additional data concerning citizenship for any purpose. See id. According to an earlier June 2014 letter from Gary to the Department of Commerce's General Counsel describing what Census data DOJ uses and confirming its continued use of that data, the "lowest geography" for which DOJ needs citizenship data is the "Census block group" level. PX-1 at 280 (AR 280).

21. The December 2017 DOJ letter, however, formally requested the Census Bureau "reinstate on the 2020 Census questionnaire a question regarding citizenship," asserting for the first time that citizenship data are "critical" to DOJ's enforcement of Section 2 of the Voting Rights Act (VRA), 42 U.S.C. § 1973. PX-32 at 1 (AR 1525). The DOJ letter noted that, from 1970 to 2000, the Census Bureau collected citizenship data through the "long form" questionnaire sent to a sample of the U.S. population in conjunction with the decennial census. Id. at 2. As of the 2010 Census, the "long form" was discontinued and the ACS replaced it as the source of citizenship data used by DOJ for VRA enforcement. Id. The DOJ Letter claimed that the ACS "does not yield the ideal data for such purposes," noting that unlike Decennial Census data, ACS data are not "reported to the Census block level." Id. at 2-3. These comments imply that DOJ believed the previously used long-form questionnaire was superior to the ACS in the quality of the citizenship data generated. The DOJ Letter did not acknowledge, however, that the long-form questionnaire was also a sample survey subject to margins of error and resulted in citizenship data reported only down to the block group level, as with the current ACS.

22. Though DOJ asserted that "decennial census questionnaire data regarding citizenship" would be "more appropriate for use" than ACS citizenship data, it did not claim that Census citizenship data were "necessary." Id. at 3. The Ross Memo would later characterize DOJ's request as a "need" for more accurate data, PX-26 at 5 (AR 1317), but nothing in the DOJ Letter or in the Administrative Record provides evidence that the DOJ or any other plaintiff lost or was unable to bring a VRA enforcement action due to the lack of block-level citizenship data from the Decennial Census or the insufficiency of CVAP data based on the ACS. See PX-32 (AR 1525).

3. Census Bureau Research, Analysis, and Recommendations

23. Upon receiving the DOJ letter, the Census Bureau became aware for the first time that such content was even under consideration. The Administrative Record contains no evidence that anyone at the Census Bureau knew of the steps taken by the Secretary and his staff to find a federal agency to request the addition of a citizenship question for the 2020 Census before the DOJ letter was sent. Nor is there any evidence in the Administrative Record indicating that any Census Bureau employee was informed by the Secretary or his staff about their direct involvement in arranging for and developing the DOJ Letter, at any time prior to the Secretary's March 28, 2018 Memorandum announcing the decision.

24. After receipt of the DOJ letter, Acting Director Jarmin and the Census Bureau's Chief Scientist, Dr. Abowd, assembled a team of Census Bureau experts (nicknamed the "SWAT team") to evaluate DOJ's request and formulate a response. PX-74 (AR 3354); see also PX-22 (AR 1277); PX-102 (AR). Between December 2017 and March 2018, the SWAT team conducted extensive research and statistical analysis to provide the Secretary with the Census Bureau's expert conclusions and recommendation as to how best to meet the DOJ's asserted need for block-level citizenship data. Based on this research and analysis, the Census Bureau repeatedly, consistently, and unanimously recommended against adding a citizenship question to the 2020 Decennial Census. PX-147 (AR 11634); PX-100 (AR 5473); PX-22 (AR 1277); PX-132 (AR 9812); PX-25 (AR 1308).

25. In particular, the Census Bureau's technical analysis concluded that DOJ's stated goals with respect to VRA enforcement could be accomplished more efficiently and effectively through the use of administrative records rather than the addition of a citizenship question to the 2020 Census. PX-147 (AR 11634); PX-100 (AR 5473); PX-22 (AR 1277); PX-132 (AR 9812). Moreover, the Census Bureau's expert team concluded that the addition of a citizenship question to the 2020 Census would objectively harm data quality while imposing greater expense and burden on the public than reliance on administrative records. PX-132 at 5 (AR 9816). The technical analysis compared "the self-response rates for the same household address" on the 2010 Census and the 2010 ACS and found that for the same universe of housing units, self response to the ACS, which contained a citizenship question, was lower than it was to the Decennial Census, which did not. PX-22 at 4-5 (AR 1280-81); PX-102 at 6-7 (AR 5505-06).

26. Led by Dr. Abowd, the Census Bureau SWAT team provided the Secretary with a memorandum dated December 22, 2017 (the "December 22 Memorandum"), analyzing "Alternative Sources of Citizenship Data for the 2020 Census." PX-147 (AR 11634). The December 22 Memorandum identified several sources of administrative records that the Census Bureau concluded could provide "a more accurate measure of citizenship" in a more "cost efficient" manner than adding a citizenship question to the Decennial Census. Id. at 11 (AR 11644). The December 22 Memorandum concluded that adding a citizenship question to the 2020 Decennial Census was likely to decrease self-response rates, particularly in households with noncitizens; increase costs; and produce lower quality citizenship data. Id. at 6-12 (AR 11639-11645. Accordingly, Dr. Abowd advised Dr. Jarmin: "[W]e recommend that the citizenship data for Department of Justice Voting Rights Act enforcement be obtained through the use of administrative records and not through the addition of a question to the decennial census instrument." PX-1130 at 1 (AR 11646).

27. Dr. Jarmin emailed Gary that day to convey the Census Bureau's determination that "the best way to" achieve DOJ's stated goal "would be through utilizing a linked file of administrative and survey data the Census Bureau already possesses." PX-71 (AR 3289). Dr. Jarmin further advised that this method of augmenting currently available ACS data "would result in higher quality data produced at lower cost" than the addition of a citizenship question to the 2020 Census. Id. The Census Bureau therefore recommended against adding a citizenship question to the 2020 Decennial Census. Id.

28. In the same email, Dr. Jarmin suggested that Census and DOJ technical experts meet to discuss the details of the Census Bureau's proposal. Id. Dr. Jarmin twice followed up with Gary to set up a meeting between Census Bureau and DOJ technical experts over the next few weeks. PX-101 (AR 5489). A meeting was eventually scheduled but was cancelled by Gary before it took place. PX-124 (AR 9193). As the deadline to report planned 2020 Decennial Census questions fast approached, Gary told Dr. Jarmin that he had spoken with DOJ Leadership and that they believed DOJ's letter fully described the department's request, and they did not want to meet. PX-3 (AR 3460).

29. In the meantime, after the December 22, 2017 initial recommendation, the Census Bureau experts continued to analyze both the impact of adding a citizenship question to the Decennial Census and potential alternative sources of citizenship data in addition to the ACS. In a January 3, 2018 memorandum to the Secretary, Dr. Abowd elaborated on the research and analysis discussed in the December 22 Memorandum. PX-100 (AR 5473). The January 3 Memorandum presented three alternatives, Alternatives A, B, and C, for meeting the DOJ request: (A) "[m]aintain the status quo for data collection, preparation and publication"; (B) "[a]dd a citizenship question to the 2020 Census questionnaire"; and (C) do not add a citizenship question to the Decennial Census, and provide DOJ with CVAP data using available administrative records. Id.

30. The January 3 Memorandum recommended adopting Alternative C because using administrative records rather than adding a citizenship question would provide higher quality citizenship data to DOJ and be less costly to implement. Id. at 3. In particular, the Census Bureau estimated that adding a citizenship question would cost an additional $ 27.5 million based on the need for increased NRFU operations and cause at least a 5.1 percentage point decline in self-response among noncitizen households, thereby leading to an estimated minimum of "154,000 fewer correct enumerations." Id. at 2 (emphasis in original).

31. On January 4, 2018, Dr. Abowd emailed multiple Census Bureau officials advising that Dr. Jarmin "reports that he has discussed this with the Under Secretary [Karen Dunn Kelley], and she agrees with the recommendation of Alternative C." PX-121 at 1 (AR 9008). While Dr. Abowd noted that "Alternative A [i.e., no change] remains a possibility as well," he made no mention of Alternative B [i.e., adding a citizenship question]. Id . A January 19 subsequent memorandum, prepared by Dr. Abowd for Secretary Ross and transmitted to him "through" acting Census Bureau Director Jarmin and Undersecretary Kelley, expanded on the Census Bureau's technical analysis of Alternatives A through C. PX-22 at 1 (AR 1277). The January 19 Memorandum's conclusion was the same as that stated in the January 3 Memorandum, and advised the Secretary that "Alternative C best meets DoJ's stated uses, is comparatively far less costly than Alternative B, does not increase response burden, and does not harm the quality of the census count." Id. Conversely, adding a citizenship question to the 2020 Census "is very costly, harms the quality of the census count, and would use substantially less accurate citizenship status data than are available from administrative sources." Id. The January 19 Memorandum concluded that, even if block-level CVAP data could be improved through a Census citizenship question, there would be "serious quality issues remaining" and the addition of a citizenship question would cause "[m]ajor potential quality and cost disruptions." Id. at 2.

32. The Census Bureau's technical analysis showed that a citizenship question on the 2020 Census would decrease self-response rates disproportionately among noncitizen households, causing a 5.1 percentage point decline in self-responses from households containing at least one noncitizen-an estimate that the Bureau characterized as conservative. Id. 4-6. The January 19 Memorandum noted that item nonresponse rates (i.e., nonresponse to a particular question on the questionnaire) for the citizenship question "are much greater than the comparable rates for other demographic variables like sex, birthdate/age, and race/ethnicity." Id. at 4. Between 2013 and 2016, item nonresponse rates of Hispanics were approximately double that of non-Hispanic whites. Id. Similarly, the "breakoff rate" for the citizenship question (i.e., the rate at which households stop answering the questionnaire at a particular question) is far higher for Hispanic respondents (36 percent) than for non-Hispanic whites (4 percent). Id. at 5. The analysis also revealed that a high percentage of noncitizens provide erroneous answers to the ACS citizenship question. Specifically, "[i]n 2010 and 2016, individuals for whom the administrative data indicate noncitizen respond citizen in 32.7% and 34.7% of the ACS questionnaires, respectively." Id. at 8. Further, the material decline in noncitizen household self-response rate would result in more such households becoming subject to NRFU procedures, and data obtained in NRFU have greater rates of erroneous enumeration and whole-person imputation. Id. at 5-6. Adoption of Alternative C would provide more accurate citizenship data than Alternative B, which would cause harm to the data quality of the Census count. Id.

33. On February 12, 2018, Census Bureau staff met with Secretary Ross to discuss the January 19 Memorandum. PX-127 (AR 9450). According to the Administrative Record, the February 12 meeting is the only in-person meeting between Secretary Ross and Census Bureau staff concerning the citizenship question. Despite the findings detailed in the December 22, January 3, and January 19 memos and communicated to Secretary Ross at the February 12 meeting, the Ross Memo would go on to repeatedly assert incorrectly that the Census Bureau and concerned stakeholders could not "document that the response rate would in fact decline materially" because of a citizenship question. PX-26 at 3 (AR 1315); see also id. at 4, 5, 6.

4. Secretary Ross and Staff Persist

34. Faced with the Census Bureau's analysis that DOJ's stated goals could be best achieved without adding a citizenship question and that a citizenship question would be costly and harmful to data quality, Secretary Ross nonetheless persisted in his efforts to add a citizenship question to the 2020 Census.

35. On February 12, 2018, the same day that the Secretary conferred with the Census Bureau about its analysis and recommendation, Kobach sent a letter to the Secretary, formally requesting that the Secretary add the citizenship question to the 2020 Census. PX-1 at 1141 (AR 1141). Unlike his earlier requests, see e.g. , PX-19 at 2 (AR 764), Kobach now endorsed the VRA enforcement rationale as a reason to add the citizenship question to the 2020 Census, and referenced concerns about voter fraud. PX-1 at 1141 (AR 1141). Kobach also repeated his interest in including the question for "election-related reasons" but he was not explicit about his earlier congressional-apportionment rationale. Id. Instead, he vaguely referred to the fact that lawful immigrants "are part of the population of continuous residents in a state, and are not temporarily or illegally present," implying that undocumented immigrants are not "residents" for purposes of apportionment. Id.

36. Meanwhile, apparently dissatisfied by the Census Bureau's consensus, the Secretary next directed the Census Bureau to analyze a fourth alternative, which he devised, and which is referred to in the Administrative Record as "Alternative D." PX-132 at 2 (AR 9813). Alternative D would "combin[e] Alternative B (asking the citizenship question of every household on the 2020 Census) with Alternative C (do not ask the question, link reliable administrative data on citizenship status instead)." Id.

37. At the Secretary's request, the Census Bureau conducted additional technical research and analysis on Alternative D and the weaknesses of Alternative C on its own, and Dr. Abowd sent an additional recommendation memorandum (the "March 1 Memorandum"), through Jarmin, Kelley, and Lamas to Secretary Ross. PX-25 (AR 1308); PX-132 (AR 9812). In the March 1 Memorandum, the Census Bureau continued to recommend against the addition of a citizenship question. Id. Specifically, the March 1 Memorandum concluded that Alternative D would increase the burden on "100 percent of respondents" while "result[ing] in poorer quality citizenship data than Alternative C" and having "all the negative cost and quality implications of Alternative B" described in the January 19 Memorandum. PX-25 at 5 (AR 1312).

38. The conclusion by the Census Bureau that adding a citizenship question would increase burden on "100 percent of respondents" was consistent with its earlier determination "that a question on citizenship would lead to some decline in overall self response because it would make the 2020 Census modestly more burdensome in the direct sense, and potentially much more burdensome in the indirect sense that it would lead to a larger decline in self-response for noncitizen households." PX-22 at 5 (AR 1281). Yet, the Ross Memo would ultimately state incorrectly that the addition of a citizenship question imposes no additional burden on citizens and there is "limited empirical evidence to support" the view that "recipients are generally less likely to respond to a survey that contained more questions than one that contained fewer." PX-26 at 6 (AR 1318); see also id. at 5 (AR 1317) (citizenship question would be "no additional imposition" for citizens and for the 70% of noncitizens who respond to the ACS citizenship question accurately); see also id. (stating that that the reinstatement of the citizenship question would impose a "limited burden"). To the contrary, the Census Bureau found that "inclusion of a citizenship question on the 2020 Census Questionnaire is very likely to reduce self-response rate, pushing more households into NRFU. Not only will this likely lead to more incorrect enumerations, but it is expected to increase the number of persons who cannot be linked to the administrative data because NRFU PII [i.e., personal identifying information] is lower quality than self-response data." PX-25 at 4 (AR 1311). The Census Bureau characterized the quality of any survey data collected through a citizenship question on the decennial Census as "suspect." Id. at 5 (AR 1312).

39. The Census Bureau elaborated on the differences between Alternative C and Alternative D in a further memorandum titled, "Summary of Analysis of the Key Differences Between Alternative C and Alternative D." PX-24 (AR 1304) (Key Differences Memo). This memorandum set forth the Census Bureau's additional conclusion that, in comparison to Alternative C, Alternative D will lead to a larger number of people for whom the Census cannot match an administrative record and whose answers must be produced by a model. PX-24 (AR 1304). Further, the memorandum explained:

Under Alternative C, there will be error in the administrative records, but we believe these to be relatively limited due[ ] to the procedure follow[ed] by SSA, USCIS and State. In both Alternative[s], the modeled cases will be subject to prediction error. ... Alternative D has an additional source or error, response error. This is where 2020 respondent give the incorrect status. Statisticians often hope these error[s] are random and cancel out. However, we know from prior research that citizenship status responses are systematically biased for a subset of noncitizens. Response error is only an issue in alternative D.

PX-24 at 2 (AR 1305). Because data quality would be better under Alternative C, a higher number of individuals could be linked to more reliable administrative records than under Alternative D. Id.

40. The Census Bureau anticipated needing to model the citizenship status of approximately 35 million people under Alternative C. Id. Under Alternative D, the Bureau expected 35.4 million people not to respond to a citizenship question. Id. Further, the Census Bureau asserted that of the approximately 295 million individuals for whom self responses to a citizenship question would likely exist, 263 million people would respond with citizenship data that matches administrative records. Id. Thus, taking these numbers together, Alternative D would provide no improvement to the citizenship data available under Alternative C for 298.4 million individuals or 90.4% of the population. See id.

41. The Census Bureau also concluded that, under Alternative D, a group of approximately 22 million people would respond to a citizenship question but would not be linked to existing administrative records because of self-response errors. Id. As a result, the citizenship data for this group would be less accurate under Alternative D than under Alternative C. Id. Thus, for 6.7% of the population, Alternative D will produce lower quality data than Alternative C because the Census Bureau would have to use survey responses that are generally less accurate than the imputation methods the Census Bureau would deploy under Alternative C. Id. And for the remaining 2.9% of the population, Alternative D creates a problem that does not exist under Alternative C, due to conflict between survey and administrative data as to citizenship. Id. In sum, the Census Bureau concluded that based on the relevant metrics, Alternative C was an objectively superior method than Alternative D to achieve DOJ's goal and limit harm to the overall Census. See id.

42. Despite the Census Bureau's finding that Alternative C was objectively superior to Alternative D in terms of data quality, cost, and respondent burden, Secretary Ross rejected Alternative C in favor of Alternative D. PX-26 at 4 (AR 1316). The Secretary supported his choice of Alternative D with the assertion that it could "eliminate the need for the Census Bureau to have to impute an answer for millions of people." Id. at 5. But the Census Bureau explained that while neither Alternative C nor Alternative D would yield perfect results, the errors caused by Alternative D would likely outweigh the margin of error caused by modeling under Alternative C. The Census Bureau's analysis thus does not support Secretary Ross's decision to prioritize reducing the need for the Census Bureau to impute answers. PX-24 at 2 (AR 1305).

43. The Ross Memo also asserts incorrectly that Alternative D "would maximize the Census Bureau's ability to match the decennial census responses with administrative records." PX-26 at 4 (AR 1316). This assertion is directly contradicted by the Census Bureau's analysis. PX-25 at 4 (AR 1311). The Census Bureau concluded that, under Alternative C, approximately 35 million people would not be linked to administrative citizenship data. PX-24 at 3 (AR 1036). Under Alternative D, 36 million people cannot be linked to administrative records. Id. at 4. There is no evidence in the Administrative Record contradicting the Census Bureau's conclusion.

44. The Secretary's staff also worked to downplay deviation from Census Bureau standard procedures and gin up support for the Secretary's proposal. First, the Ross Memo misleadingly states that the citizenship question has been "well tested." PX-26 at 2 (AR 1314). This statement suggests compliance with the Census Bureau's standard pretesting procedures, which apply unless the Census Bureau obtains a waiver or uses a question that has performed adequately in another survey. However, there is no evidence in the Administrative Record that the citizenship question underwent any testing required by the Census Bureau's Statistical Quality Standards. Although it is true that the citizenship question underwent testing before it was added to the ACS, id. at 7 (AR 1319), the Census Bureau reported to Secretary Ross that approximately a third of respondents identified as noncitizens by administrative records reported themselves as citizens on the 2016 ACS. PX-22 at 8 (AR 1284); PX-26 at 6. In light of this finding, the Census Bureau concluded that data on citizenship obtained from the citizenship question were of "suspect quality" and "may not be reliable," particularly for noncitizens. PX-25 at 4-5 (AR 1311-12). Similarly, the Ross Memo does not account for the significant differences between the Decennial Census questionnaire and the ACS. Id. at 1-8 (AR 1313-1320). By labeling the citizenship question "well tested" while failing to acknowledge the evidence that the question does not perform adequately on the ACS and ignoring the differences between the ACS and the Census questionnaire, the Ross Memo downplayed deviations from Census Bureau procedure.

45. Similarly, although the Ross Memo states that the "value" of generating the requested data for DOJ is of "greater importance" than any adverse effects on the Census, PX-26 at 7 (AR 1319), Secretary Ross did not require DOJ to "demonstrate[ ] a clear statutory or regulatory need for data at small geographies or for small populations" per the Census Bureau's well-established processes for adding new questions to a Decennial Census, PX-140 at 7 (AR 10901). There is nothing in the Administrative Record reflecting an assessment by Secretary Ross or any other Defendant of the "value" or "importance" of the DOJ's request. In fact, the Administrative Record undermines the assertion that the requested data were of great importance to DOJ. It shows that the Commerce Department originally approached DOJ to request the question, PX-2 (AR 1321); PX-51 (AR 2462); PX-84 (AR 3701); PX-537 (AR 12756); DOJ initially refused to request the question, PX-537 (AR 12756); DOJ ultimately requested it only after the Attorney General personally spoke with Secretary Ross, PX-57 (AR 2528); PX-62 (AR 2637); PX-97 (AR 4004); and DOJ refused to meet with the Census Bureau to discuss the request, PX-101 (AR 5489); PX-109 (AR 6659).

46. In another effort to downplay deviations from standard operations, the Commerce Department revised the Census Bureau's description of its "well-established process" for "adding or changing content on the Census." The Secretary's staff had prepared a set of 35 questions regarding the Census Bureau's January 2018 analysis and recommendation. PX-545 (AR 1976). Question 31, asked "[w]hat was the process that was used in the past to get questions added to the decennial Census or do we have something similar where a precedent was established?" Id. at 21. The Census Bureau's written response to Question 31 described the following well-established process:

The Census Bureau follows a well-established process when adding or changing content on the census or ACS to ensure the data fulfill legal and regulatory requirements established by Congress. Adding a question or making a change to the Decennial Census or the ACS involves extensive testing, review, and evaluation. This process ensures the change is necessary and will produce quality, useful information for the nation.

The Census Bureau and the Office of Management and Budget (OMB) have laid out a formal process for making content changes.

First, federal agencies evaluate their data needs and propose additions or changes to current questions through OMB.

In order to be included, proposals must demonstrate a clear statutory or regulatory need for data at small geographies or for small populations.

Final proposed questions result from extensive cognitive and field testing to ensure they result in proper data, with an integrity that meets the Census Bureau's high standards.

This process includes several opportunities for public comment.

The final decision is made in consultation with OMB.

Id. at 21-22. The procedure described above is consistent with other Census Bureau documents addressing the same subject. See, e.g. , PX-699 (AR 3890), PX-3 (AR 3560), PX-4 (AR 9867); PX-140 at 7. Defendants' initial, incomplete production of the Administrative Record included only a different, far shorter response to question 31:

Because no new questions have been added to the Decennial Census (for nearly 20 years), the Census Bureau did not feed [sic] bound by past precedent when considering the Department of Justices' [sic] request. Rather, the Census Bureau is working with all relevant stakeholders to ensure that legal and regulatory requirements are filled and that questions will produce quality, useful information for the nation. As you are aware, that process is ongoing at your direction.

PX-1 (AR 1296). Although there is evidence that one member of the Census Bureau team said she was "fine" with an interim iteration of the response that was drafted by the Secretary's staff, see PX-14 (AR 13023), there is no evidence in the Administrative Record indicating that anyone at the Census Bureau approved or even saw this altered version of the question 31 response.

47. The Secretary and his staff's dealings with stakeholders offer another example of Defendants' efforts to stack the deck in the citizenship question's favor. The Ross Memo refers to discussions with an executive at the Nielsen survey agency, during which the executive indicated that Nielsen had added certain sensitive questions to short survey forms "without any appreciable decrease in response rates." PX-26 at 3 (AR 1315); see also id. at 6 (describing "empirical evidence" from Nielsen). The Administrative Record does not contain any of the "empirical evidence" obtained from Nielsen that is referenced in the Ross Memo. See PX-1 to PX-14 (AR 1-13024). The only evidence in the Administrative Record of Secretary Ross's interactions with Nielsen-notes from a call between Secretary Ross and Christine Pierce, the Nielsen executive-contradict the Ross Memo's characterization of the "evidence" provided by Nielsen. These notes actually indicate that "Ms. Pierce stated that her biggest concerns [sic] was that the reinstatement of a citizenship question could lead to a lower response rate ...." and that Pierce "noted the importance of testing questions." PX-1 (AR 1276).

48. In early 2018, Secretary Ross conferred with multiple outside stakeholders and received numerous written submissions regarding the citizenship question. See e.g. , PX-1112-1129 (AR 787-AR 3608). However, the evidence in the Administrative Record shows that nearly all of the stakeholders who provided an opinion on the citizenship question to Secretary Ross opposed the addition of citizenship as a subject for the 2020 Census and overwhelmingly reinforced the Census Bureau's recommendation against the addition. See, e.g. , PX-1 (AR 780, AR 778, AR 787, AR 840, AR 1053, AR 1150, AR 1222); PX-116 (AR 8555); PX-1123 (AR 1122); PX-1128 (AR 3605).

49. The Administrative Record reflects that acting Director Jarmin attempted to identify stakeholders who would speak in favor of adding a citizenship question and had trouble finding supporters. PX-70 (AR 3275) at 2. On February 13, 2018, Dr. Jarmin wrote to Michael Strain at the American Enterprise Institute (AEI) asking if someone would "speak to the pros" of adding a citizenship question because "[m]ost stakeholders will speak against the proposal." Id. Strain declined, responding that "[n]one of my colleagues at AEI would speak favorably about the proposal." Id. Dr. Jarmin ultimately reported that the Census Bureau was only able to find two organizations, the Center for Immigration Studies and the Heritage Foundation, that supported the addition of the citizenship question. PX-1 (AR 1206, AR 1261); PX-4 (AR 4849), PX-113 (AR 8325). However, neither of these organizations submitted any empirical data or technical research addressing the likely impact of the addition on Census data quality or the feasibility of meeting the DOJ's request using administrative records rather than by altering the Census questionnaire. See id.

50. Finally, the Trump/Pence reelection campaign-an unusual stakeholder given the Census Bureau's status as a non-political statistical agency-communicated its position on the Secretary's proposal indirectly. A campaign email broadcasted that "[t]he President wants the 2020 United States Census to ask people whether or not they are citizens." PX-64 (AR 2643-44); PX-3 (AR 3424-25). The Administrative Record shows that before the Ross Memo issued, Secretary Ross's staff alerted the Secretary of media reports about the reelection campaign's support for adding a citizenship question to the 2020 Census. PX-78 (AR 3597).

51. Despite the Census Bureau unanimously and repeatedly recommending against adding a citizenship question because the objectively superior Alternative C would achieve DOJ's stated goal while avoiding the damage to the enumeration, the Secretary nonetheless announced the "reinstatement of a citizenship question on the 2020 decennial census" in the Ross Memo on March 26, 2018. PX-26 at 8 (AR 1320).

B. The Secretary's Decision (Extra-Record Evidence)

52. Evidence in the Trial Record provides additional context to the circumstances surrounding Secretary Ross's decision to add a citizenship question to the 2020 Decennial Census.

53. First, the evidence confirms the Court's finding that the Secretary decided in the Spring of 2017, months before receiving DOJ's request, that he wanted to add a citizenship question to the 2020 Census. ECF No. 103-8 (Comstock Dep.) at 146:1-15. Secretary Ross concealed this fact when he represented to Congress that the Department of Commerce analysis around the citizenship question was "solely" in response "to the Department of Justice's request," and not at the direction of President Trump or anyone at the White House, PX-491, and that DOJ "initiated the request for the inclusion of the citizenship question" to the 2020 Census, PX-480 at 51.

54. Extra-record evidence also provides more support for the finding that the Secretary's staff searched for a rationale and an agency to request the question. The Secretary's staff did not know why Secretary Ross wanted to add a citizenship question. ECF No. 103-5 (Teramoto Dep.) at 32:10-12; ECF No. 103-6 (Dunn Kelley Dep.) at 39:3-16; see Comstock Dep. 266:4-12. But they nonetheless set out to come up with a "legal rationale" to support the proposal. Comstock Dep. 266:4-12. Comstock, in particular, believed he needed to find another agency to request the addition of a citizenship question because OMB and the Paperwork Reduction Act required the Commerce Department to "justify" why a citizenship question was "need[ed]," and he understood that simply saying "the Secretary wanted it" would not "clear [the] legal thresholds." Id. 153:6-13, 154:6-11. Comstock believed that it was his job to "figure out how to carry out what my boss asks me to do" and "find a legal rationale" for the question. Id. at 266:4-12. According to Comstock, it did not "matter what [Secretary Ross's] particular personal perspective" was. Id.

55. When Comstock first contacted DOJ on May 4, 2017 to solicit DOJ's request for the addition of a citizenship question, he was not seeking to promote more effective enforcement of the VRA. See Comstock Dep. 167:5-172:15. Neither James McHenry nor DOJ's Executive Office of Immigration Review, which McHenry heads up, have responsibility for enforcing the VRA, yet McHenry was Comstock's first DOJ contact. Comstock Dep. at 270-71; ECF No. 103-10 (Gore Dep.) at 65:3-14; PX-485; PX-537. Similarly, Comstock contacted DHS, which has no responsibility for enforcement of the VRA. See Comstock Dep. at 276:19-277:3. As Comstock was reaching out to DOJ and DHS, Langdon, on behalf of Comstock, requested information from Census Bureau staff regarding whether and/or how the Census counts noncitizens and illegal immigrants for purposes of apportionment. ECF No. 103-12 (Langdon Dep.) 174:15-184:11.

56. Additionally, extra-record evidence confirms that around the beginning of September 2017, Secretary Ross initiated a discussion with Attorney General Sessions regarding the addition of a citizenship question to the Census, even though DOJ had never communicated that CVAP data obtained from the ACS were not meeting DOJ's needs for VRA enforcement purposes. Gore Dep. at 83:16-84:1; PX-302; PX-1194 at 996:19-23. The Trial Record shows that Attorney General Sessions made the decision to help Secretary Ross by authorizing DOJ to request that the Census Bureau ask a citizenship question on the Census. Gore Dep. at 442.

57. After Attorney General Sessions' call with Secretary Ross, the Attorney General spoke with Gore about requesting the addition of a citizenship question. Gore Dep. at 74:18-75:14, 83. Gore confirmed that any discussions between the Department of Commerce and DOJ prior to September 2017 regarding the citizenship question were initiated by the Department of Commerce. Id. at 67-68.

58. On September 11, 2017, Gary sent an email to Gore for more information about concerns "the Secretary of Commerce raised last week with the AG relating to the 2020 Census" and the citizenship question. PX-648 at 2. In this email, Gary noted that he previously worked on adding "potential questions to the ACS relating to LGBTQ status, and on behalf of [DOJ] ... signed correspondence with Census on that topic." Id. Gary explained that, as a part of his involvement in the 2020 Census, he had not heard about "citizenship issues." Id. After speaking with Gore by phone, Gary writes, "My contact at Census OGC (not at the Department level) has heard nothing, and is equally puzzled about the question." Id. In September and October 2017, Gore spoke with the Department of Commerce's Peter Davidson, James Uthmeier, and Wendy Teramoto regarding the citizenship question. Gore Dep. at 91:18-94:3, 118:15-17.

59. In one of Gore's several calls with the Secretary's advisors, id. at 102-03, 117-19, 120-