New York v. Trump

Case 1:20-cv-05770 Document 1 Filed 07/24/20 Page 1 of 49
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, STATE OF

COLORADO, STATE OF
CONNECTICUT, STATE OF
DELAWARE, DISTRICT OF
COLUMBIA, STATE OF HAWAI‘I, 20 Civ. ______
STATE OF ILLINOIS, STATE OF
MARYLAND, COMMONWEALTH
OF MASSACHUSETTS, STATE OF COMPLAINT FOR DECLARATORY
MICHIGAN, STATE OF AND INJUNCTIVE RELIEF
MINNESOTA, STATE OF NEVADA,
STATE OF NEW JERSEY, STATE
OF NEW MEXICO, STATE OF
NORTH CAROLINA, STATE OF
OREGON, COMMONWEALTH OF
PENNSYLVANIA, STATE OF
RHODE ISLAND, STATE OF
VERMONT, COMMONWEALTH
OF VIRGINIA, STATE OF
WASHINGTON; CITY OF
CENTRAL FALLS, CITY OF
CHICAGO, CITY OF COLUMBUS,
CITY OF NEW YORK, CITY OF
PHILADELPHIA, CITY OF
PHOENIX, CITY OF PITTSBURGH,
CITY OF PROVIDENCE, CITY AND
COUNTY OF SAN FRANCISCO,
CITY OF SEATTLE; CAMERON
COUNTY, EL PASO COUNTY,
HIDALGO COUNTY, and
MONTEREY COUNTY,
Plaintiffs,
v.
DONALD J. TRUMP, in his official

capacity as President of the United
States; UNITED STATES
DEPARTMENT OF COMMERCE;
WILBUR L. ROSS, JR., in his official
capacity as Secretary of Commerce;
BUREAU OF THE CENSUS; and
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STEVEN DILLINGHAM, in his

official capacity as Director of the
United States Census Bureau,
Defendants.
INTRODUCTION
1. This lawsuit challenges President Donald J. Trump’s blatant disregard of an
unambiguous constitutional command. The Fourteenth Amendment provides that
“Representatives shall be apportioned among the several States according to their respective
numbers, counting the whole number of persons in each State, excluding Indians not taxed.”
U.S. Const. amend. XIV, § 2. The Framers of the Fourteenth Amendment deliberately chose the
phrase “whole number of persons” to refer to all persons living in each State—including the
“entire immigrant population not naturalized.” Cong. Globe, 39th Cong., 1st Sess. 432 (1866)
(Rep. John Bingham).
2. For 150 years—since the United States recognized the whole personhood of those
formerly bound in slavery—the unambiguous requirement that all persons be counted for
apportionment purposes, regardless of immigration status, has been respected by every executive
official, every cabinet officer, and every President.
3. Until now. On July 21, 2020, President Trump issued a “Memorandum on
Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census.” 85 Fed.
Reg. 44,679 (July 23, 2020) (attached as Ex. 1). For the first time in our history, the
Memorandum announces a “policy of the United States to exclude from the apportionment base
aliens who are not in a lawful immigration status.” Id. at 44,680. It directs the Secretary of
Commerce to provide the President with information to carry out this policy. And it declares the
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President’s intent to make a determination of the “whole number of persons in each State” that
will in fact exclude the undocumented immigrants he has targeted throughout his administration.
4. The President’s new policy and any actions Defendants take to implement it
unequivocally violate the Fourteenth Amendment. The constitutional mandate to base
apportionment on “the whole number of persons in each State” could hardly be clearer, and the
Supreme Court has long recognized that undocumented immigrants are “persons” under the
Fourteenth Amendment, Plyler v. Doe, 457 U.S. 202, 210 (1982). The Memorandum’s open
disregard of the Constitution’s plain text is reason enough to invalidate it and to prevent
Defendants from taking steps to carry out its unlawful policy.
5. But Defendants’ decision to exclude undocumented immigrants from
apportionment also violates the Constitution and federal statutes in multiple additional ways.
Defendants’ decision unlawfully discriminates against Hispanics and immigrant communities of
color in violation of the Due Process Clause of the Fifth Amendment. By explicitly targeting
and punishing States that refuse to assist in this administration’s enforcement of federal
immigration law, Defendants’ decision violates the Tenth Amendment. And Defendants’
decision to exclude undocumented immigrants from apportionment—as well as any action they
take to implement or further that decision—is both contrary to law and arbitrary and capricious,
in violation of the Administrative Procedure Act.
6. Defendants’ decision harms Plaintiffs’ sovereign, quasi-sovereign, economic, and
proprietary interests. If Defendants succeed in excluding undocumented immigrants from
apportionment, some Plaintiffs will suffer severe injury to their most basic rights under our
Constitution’s representational form of government: they will improperly lose one or more
Members in the House of Representatives and one or more corresponding electors in the
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Electoral College. And removing undocumented immigrants from the apportionment base will
further harm Plaintiffs by, for example, undermining their ability to conduct congressional and
state-level redistricting, depriving them of critical federal funding, and eroding the quality of
census data on which they rely to perform essential government functions.
7. Plaintiffs the State of New York, State of Colorado, State of Connecticut, State of
Delaware, District of Columbia, State of Hawai‘i, State of Illinois, State of Maryland,
Commonwealth of Massachusetts, State of Michigan, State of Minnesota, State of Nevada, State
of New Jersey, State of New Mexico, State of North Carolina, State of Oregon, Commonwealth
of Pennsylvania, State of Rhode Island, State of Vermont, Commonwealth of Virginia, State of
Washington, City of Central Falls, City of Chicago, City of Columbus, City of New York, City
of Philadelphia, City of Phoenix, City of Pittsburgh, City of Providence, City and County of San
Francisco, City of Seattle, Cameron County, El Paso County, Hidalgo County, and Monterey
County therefore bring this action seeking declaratory and injunctive relief to hold Defendants to
their obligation to base apportionment on “the whole number of persons in each State” and to
forbid them from excluding undocumented immigrants—or any other person—from the
apportionment base.
JURISDICTION AND VENUE
8. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and
2201(a).
9. Declaratory and injunctive relief is sought as authorized in 28 U.S.C. §§ 2201 and
2202.
10. Venue is proper in this judicial district under 28 U.S.C. §§ 1391(b)(2) and (e)(1).
Defendants are United States agencies or officers sued in their official capacities. Plaintiffs the
State of New York and the City of New York are residents of this judicial district, and a
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substantial part of the events or omissions giving rise to this Complaint occurred and are
continuing to occur within the Southern District of New York.
PARTIES
11. Plaintiff the State of New York, represented by and through its Attorney General,
is a sovereign state of the United States of America. The Attorney General is New York State’s
chief law enforcement officer and is authorized under N.Y. Executive Law § 63 to pursue this
action.
12. Plaintiff the State of Colorado is a sovereign state of the United States of
America. The State of Colorado brings this action by and through its Attorney General, Philip J.
Weiser. The Attorney General has authority to represent the state, its departments, and its
agencies, and “shall appear for the state and prosecute and defend all actions and proceedings,
civil and criminal, in which the state is a party.” Colo. Rev. Stat. § 24-31-101.
13. Plaintiff the State of Connecticut, represented by and through its Attorney
General, William Tong, is a sovereign state of the United States of America. The Attorney
General brings this action as the state’s chief civil legal officer under Conn. Gen. Stat. § 3-124 et
seq.
14. Plaintiff the State of Delaware is represented by and through its Attorney General
Kathleen Jennings, and is a sovereign state of the United States of America. Attorney General
Jennings is Delaware’s chief law enforcement officer, see Del. Const., art. III, and is authorized
to pursue this action under 29 Del. Code § 2504.
15. Plaintiff the District of Columbia is a municipal corporation empowered to sue
and be sued, and is the local government for the territory constituting the permanent seat of the
federal government. The District brings this case through the Attorney General for the District
of Columbia, who is the chief legal officer for the District and possesses all powers afforded the
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Attorney General by the common and statutory law of the District. The Attorney General is
responsible for upholding the public interest and has the authority to file civil actions in order to
protect the public interest. D.C. Code § 1-301.81.
16. Plaintiff the State of Hawai‘i, represented by and through its Attorney General, is
a sovereign state of the United States of America. Attorney General Clare E. Connors is the
chief legal officer of the State of Hawai‘i and is authorized to appear, personally or by deputy, on
behalf of the state in all courts and in all cases in which the state is a party. Haw. Const. art. V,
§ 6; Haw. Rev. Stat. Chapter 28; Haw. Rev. Stat. § 26-7.
17. Plaintiff the State of Illinois, represented by and through its Attorney General,
Kwame Raoul, is a sovereign state of the United States of America. The Attorney General is
Illinois’s chief law enforcement officer and is authorized under 15 ILCS 205/4 to pursue this
action.
18. Plaintiff the State of Maryland, by and through its Attorney General, Brian E.
Frosh, is a sovereign state of the United States of America. The Attorney General is Maryland’s
chief legal officer with general charge, supervision, and direction of the State’s legal business.
The Attorney General’s powers and duties include acting on behalf of the State and the people of
Maryland in the federal courts on matters of public concern. Under the Constitution of
Maryland, and as directed by the Maryland General Assembly, the Attorney General has the
authority to file suit to challenge action by the federal government that threatens the public
interest and welfare of Maryland residents. Md. Const. art. V, § 3(a)(2); 2017 Md. Laws, Joint
Resolution 1.
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19. Plaintiff the Commonwealth of Massachusetts, represented by and through its
Attorney General, is a sovereign state of the United States of America. The Attorney General is
authorized to pursue this action under Mass. Gen. Laws ch. 12, §§ 3 and 10.
20. Plaintiff the State of Michigan, represented by and through its Attorney General,
is a sovereign state of the United States of America. The Attorney General is Michigan’s chief
law enforcement officer and is authorized under Michigan law, Mich. Comp. Laws §§ 14.28 and
14.29, to pursue this action.
21. Plaintiff the State of Minnesota, represented by and through its Attorney General,
is a sovereign state of the United States of America. The Attorney General is Minnesota’s chief
legal officer and is authorized to pursue this action on behalf of the State. Minn. Stat. § 8.01.
22. Plaintiff the State of Nevada, represented by and through its Attorney General, is
a sovereign state of the United States of America. Attorney General Aaron D. Ford is the chief
legal officer of the State of Nevada and has the authority to commence actions in federal court to
protect the interests of Nevada. Nev. Rev. Stat. § 228.170. Governor Stephen F. Sisolak is the
chief executive officer of the State of Nevada. The Governor is responsible for overseeing the
operations of the State and ensuring that its laws are faithfully executed. Nev. Const., art. 5, § 1.
23. Plaintiff the State of New Jersey, represented by and through its Attorney General
Gurbir S. Grewal, is a sovereign state of the United States of America. The Attorney General is
New Jersey’s chief legal officer and is authorized to pursue this action on behalf of the State.
See N.J. Stat. Ann. § 52:17A-4(e), (g).
24. Plaintiff the State of New Mexico, represented by and through its Attorney
General Hector Balderas, is a sovereign state of the United States of America. The Attorney
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General is authorized to bring an action on behalf of New Mexico in any court when, in his
judgment, the interests of the State so require, N.M. Stat. Ann. § 8-5-2.
25. Plaintiff the State of North Carolina, represented by and through Attorney General
Joshua H. Stein, is a sovereign state of the United States of America. The Attorney General is
the State of North Carolina’s chief law enforcement officer and brings this challenge pursuant to
his independent constitutional, statutory, and common-law authority.
26. Plaintiff the State of Oregon, acting by and through the Attorney General of
Oregon, Ellen F. Rosenblum, is a sovereign state of the United States of America. The Attorney
General is the chief law officer of Oregon and is empowered to bring this action on behalf of the
State of Oregon, the Governor, and the affected state agencies under Or. Rev. Stat. §§ 180.060,
180.210, and 180.220.
27. Plaintiff the Commonwealth of Pennsylvania is a sovereign state of the United
States of America. This action is brought on behalf of the Commonwealth by Attorney General
Josh Shapiro, the “chief law officer of the Commonwealth.” Pa. Const. art. IV, § 4.1. Attorney
General Shapiro brings this action on behalf of the Commonwealth pursuant to his statutory
authority under 71 Pa. Stat. § 732-204.
28. Plaintiff the State of Rhode Island, represented by and through its Attorney
General, is a sovereign state of the United States. Attorney General Peter F. Neronha is the chief
legal advisor to the State of Rhode Island and is authorized to pursue this action pursuant to his
constitutional, statutory, and common law authority. R.I. Const. art. IX § 12, R.I. Gen. Laws
§§ 42-9-1 et seq.
29. Plaintiff the State of Vermont, represented by and through its Attorney General,
Thomas J. Donovan, is a sovereign state in the United States of America. The Attorney General
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is the state’s chief law enforcement officer and is authorized to pursue this action pursuant to Vt.
Stat. Ann. tit. 3, §§ 152 and 157.
30. Plaintiff the Commonwealth of Virginia brings this action by and through its
Attorney General, Mark R. Herring. The Attorney General has the authority to represent the
Commonwealth, its departments, and its agencies in “all civil litigation in which any of them are
interested.” Va. Code Ann. § 2.2-507(A).
31. Plaintiff the State of Washington, represented by and through its Attorney
General, Robert W. Ferguson, is a sovereign state of the United States of America. The Attorney
General is the chief legal adviser to the State of Washington and is authorized to pursue this
action pursuant to RCW 43.10.030. The Attorney General’s powers and duties include acting in
federal court on matters of public concern.
32. Plaintiff the City of Central Falls is a municipal corporation organized pursuant to
the laws of the State of Rhode Island.
33. Plaintiff the City of Chicago is a municipal corporation and home rule unit
organized and existing under the constitution and laws of the State of Illinois.
34. Plaintiff the City of Columbus is a municipal corporation and home rule unit
organized and existing under the constitution and laws of the State of Ohio and the City’s Home
Rule Charter.
35. Plaintiff the City of New York is a municipal corporation organized pursuant to
the laws of the State of New York. New York City is a political subdivision of the State and
derives its powers through the New York State Constitution, New York State laws, and the New
York City Charter. New York City is the largest city in the United States by population.
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36. Plaintiff the City of Philadelphia is a municipal corporation organized pursuant to
the laws of the Commonwealth of Pennsylvania. The City is a political subdivision of the
Commonwealth with powers derived from the Pennsylvania Constitution, Commonwealth law,
and the City’s Home Rule Charter.
37. Plaintiff the City of Phoenix is a municipal corporation organized pursuant to the
laws of the State of Arizona.
38. Plaintiff the City of Pittsburgh is a municipal corporation organized pursuant to
the laws of the Commonwealth of Pennsylvania. The City is a political subdivision of the
Commonwealth with powers derived from the Pennsylvania Constitution, Commonwealth law,
and the City’s Home Rule Charter.
39. Plaintiff the City of Providence is a municipal corporation organized pursuant to
the laws of the State of Rhode Island.
40. Plaintiff the City and County of San Francisco, represented by and through its
City Attorney, is a municipal corporation organized and existing under and by virtue of the laws
of the State of California, and is a charter city and county.
41. Plaintiff the City of Seattle is a first-class charter city, incorporated under the laws
of the State of Washington, empowered to sue and be sued, and represented by and through its
elected City Attorney, Peter S. Holmes.
42. Plaintiff Cameron County, Texas is a political subdivision of the State of Texas.
43. Plaintiff El Paso County, Texas is a political subdivision of the State of Texas.
44. Plaintiff Hidalgo County, Texas is a political subdivision of the State of Texas.
45. Plaintiff Monterey County, California is a political subdivision of the State of
California.
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46. Plaintiffs are aggrieved by Defendants’ decision and conduct and have standing to
bring this action because Defendants’ decision and actions to exclude undocumented immigrants
from the apportionment base harm Plaintiffs’ sovereign, quasi-sovereign, economic, and
proprietary interests and will continue to cause injury unless and until the challenged decision
and conduct are enjoined.
47. Defendant Donald J. Trump is the President of the United States. He is
responsible for the actions and decisions that are being challenged by Plaintiffs in this action and
is sued in his official capacity.
48. Defendant the United States Department of Commerce is a cabinet agency within
the executive branch of the United States government. The Commerce Department is
responsible for planning, designing, and implementing the 2020 Census. 13 U.S.C. § 4.
49. Defendant Wilbur L. Ross, Jr. is the Secretary of Commerce. He is responsible
for overseeing the Census Bureau, conducting the decennial census of the population, and
reporting to the President the tabulation of total population by States for the apportionment of
Representatives in Congress. 13 U.S.C. § 141. He is sued in his official capacity.
50. Defendant Bureau of the Census is an agency within, and under the jurisdiction
of, the Department of Commerce. 13 U.S.C. § 2. The Census Bureau is responsible for planning
and administering the decennial census.
51. Defendant Steven Dillingham is Director of the Census Bureau. He is sued in his
official capacity.
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ALLEGATIONS
I. Constitutional and statutory background.
A. The Constitution requires apportioning Members of the House of

Representatives among the States based on the total number of persons living
in each State.
52. The Constitution requires that the Members of the House of Representatives
“shall be apportioned among the several States according to their respective numbers, counting
the whole number of persons in each State, excluding Indians not taxed.” U.S. Const. amend.
XIV, § 2; see id. art. I, § 2, cl. 3.
53. The number of Representatives apportioned to each State, along with the two
Senators given to each State, determines the allocation among the States of electors in the
Electoral College. Id. art. II, § 1, cl. 2; see also 3 U.S.C. § 3.
54. To apportion Representatives among the States properly (and ultimately to
allocate electors among the States properly) the Constitution requires an “actual Enumeration” of
the total population every ten years, id. art. I, § 2, cl. 3.
55. “By its terms, therefore, the Constitution mandates that every ten years the federal
government endeavor to count every single person residing in the United States, whether citizen
or noncitizen, whether living here with legal status or without,” and to use that enumeration of
the total population “to apportion Representatives among the states.” New York v. Dep’t of
Commerce, 351 F. Supp. 3d 502, 514 (S.D.N.Y. 2019).
56. More than two hundred years of history, practice, and judicial and administrative
precedents establish that the apportionment of Representatives must be based on all persons
living in each State, regardless of their citizenship or immigration status.
57. During the country’s founding, the Framers debated the proper basis on which to
apportion Representatives and declared that Representatives “shall be apportioned among the
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several States which may be included within this Union, according to their respective Numbers.”
U.S. Const. art. I, § 2, cl. 3 (emphasis added). The Framers repeatedly made clear that the basis
for apportionment of Representatives was thus all persons. For example, as James Madison
explained in 1788, the “fundamental principle of the proposed constitution” ensured that “the
aggregate number of representatives allotted to the several states, is to be . . . founded on the
aggregate number of inhabitants.” The Federalist No. 54, p. 284 (G. Carey & J. McClellan eds.
2001).
58. The original Apportionment Clause provided for only two exceptions to the use of
total population for apportionment. First, “Indians not taxed” were excluded from the
apportionment base. U.S. Const. art. I, § 2, cl. 1, § 3. Second, slaves were counted as only
three-fifth of a person. Id. No other exceptions were provided, making clear that all other
persons living in the United States needed to be counted by the decennial enumeration and
included in the apportionment base.
59. When debating what is now the Fourteenth Amendment, Congress reconsidered
the proper basis for apportioning House seats among the States and reaffirmed that
apportionment must be based on all persons living in each State—citizens and noncitizens alike.
The Framers of the Fourteenth Amendment rejected numerous proposals to change the basis of
apportionment from total population to voter population. See, e.g., Cong. Globe, 39th Cong., 1st
Sess. 10 (1865) (proposal to apportion representatives among the States “according to their
respective legal voters”).
60. Instead, the Framers amended the Constitution to remove the provision that
counted slaves as three-fifths of a person and declared that apportionment of Representatives
must be based on the “whole number of persons in each State.” U.S. Const. amend. XIV, § 2.
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As the Fourteenth Amendment’s Framers explained, “numbers,” i.e., all persons living in each
State, is “the most just and satisfactory basis, and this is the principle upon which the
Constitution itself was originally framed, that the basis of representation should depend upon
numbers; and such . . . is the safest and most secure principle upon which the Government can
rest. Numbers, not voters; numbers, not property; this is the theory of the Constitution.” Cong.
Globe, 39th Cong., 1st Sess. 2767 (1866) (Jacob Howard).
61. Basing apportionment on all persons, the Framers further emphasized, ensured
that each State’s representation in the House reflected all persons regardless of whether they
could then vote, including women, children, and the “entire immigrant population not
naturalized.” Id. at 432 (Rep. John Bingham); see, e.g., id. at 411 (representation based on
number of voters improperly “takes from the basis of representation all unnaturalized foreigners”
(Rep. Burton Cook)).
62. Since 1790, in accordance with the Constitution’s express requirement to base
apportionment on all persons living in each State, the decennial actual enumeration has always
counted all persons living in the United States based on where they “usually reside[].” See
Census Act of 1790, § 5, 1 Stat. 101 (1790); 2020 Decennial Census Residence Rule and
Residence Situations, 80 Fed. Reg, 28,950, 28,950 (May 20, 2015) (“The Census Act of 1790
established the concept of ‘usual residence’ as the main principle in determining where people
are to be counted. This concept has been followed in all subsequent censuses.”).
63. Under the Census Bureau’s well-settled practice and a final rule that it
promulgated pursuant to notice-and-comment rulemaking for the 2020 Census, usual residence
means the place where a person lives and sleeps most of the time. See Final 2020 Census
Residence Criteria and Residence Situations, 83 Fed. Reg. 5525, 5533 (Feb. 8, 2018).
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64. Accordingly, the decennial enumeration and apportionment base includes all
noncitizens who live and sleep most of the time in the United States, regardless of their place of
citizenship or immigration status. See, e.g., id. The enumeration likewise counts noncitizens
who are “members of the diplomatic community” “at the embassy, consulate, United Nations’
facility, or other residences where diplomats live.” Id.
65. By contrast, noncitizens who are temporarily visiting the United States, such as on
a vacation or business trip, are not included in the decennial enumeration and apportionment
base because they do not live and sleep most of the time in the United States. See, e.g., id.
66. The millions of undocumented immigrants who do live in the United States have
an established presence here. These immigrants have moved to the United States, and they are
members of their state and local communities.
67. For example, the Migration Policy Institute has estimated, based on data from
2012 to 2016, that more than nine million undocumented immigrants have lived in the United
States for five years or more. The Migration Policy Institute estimated that more than seven
million undocumented immigrants have lived in this country for ten years or more, and that
nearly four million undocumented immigrants have lived here for twenty years or more. 1
68. Undocumented immigrants residing here both contribute to and participate in their
communities and in many public programs. For example, millions of undocumented immigrants
1
Migration Policy Institute, Profile of the Unauthorized Population: United States,
https://www.migrationpolicy.org/data/unauthorized-immigrant-population/state/US.
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work here and pay taxes. 2 Many undocumented immigrants live here with their family members,
including children who are United States citizens. 3
69. Based on the Constitution’s text, more than two centuries of history, and well-
settled census practice, the Supreme Court and other courts have repeatedly made clear that the
Fourteenth Amendment requires apportionment of Representatives based on the total number of
all persons living in each State. See, e.g., Wesberry v. Sanders, 376 U.S. 1, 10-18 (1964);
Evenwel v. Abbott, 136 S. Ct. 1120, 1127-29 (2016). Courts have also repeatedly determined
that the “whole number of persons” used to apportion Representatives includes all noncitizens
who are living in the United States regardless of their immigration status. See, e.g., Fed’n for
Am. Immigration Reform v. Klutznick, 486 F. Supp. 564, 576-78 (D.D.C. 1980) (three-judge
court).
70. The federal government, and several of the Defendants here, have conceded that
the decennial enumeration that constitutes the apportionment base must count all persons living
in the United States.
71. For example, on March 14, 2019, Secretary Ross testified under oath during a
congressional committee hearing, stating “The constitutional mandate, sir, for the census is to try
2
See, e.g., Jens Manuel Krogstad et al., Pew Research Center, 5 facts about illegal immigration
in the U.S. (June 12, 2019), https://www.pewresearch.org/fact-tank/2019/06/12/5-facts-about-
illegal-immigration-in-the-u-s (estimating that in 2017, the United States’ civilian workforce
included 7.6 million undocumented immigrants); American Immigration Council, Adding Up the
Billions in Tax Dollars Paid by Undocumented Immigrants 1,
https://www.americanimmigrationcouncil.org/sites/default/files/research/adding_up_the_billions
_in_tax_dollars_paid_by_undocumented_immigrants.pdf; Hunter Hallman, Bipartisan Policy
Center, How do Undocumented Immigrants Pay Federal Taxes? An Explainer (Mar. 28, 2018),
https://bipartisanpolicy.org/blog/how-do-undocumented-immigrants-pay-federal-taxes-an-
explainer/.
3
Migration Policy Institute, supra (estimating that more than 3 million undocumented
immigrants over the age of 15 resided with a citizen child under the age of 18).
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to count every person residing in the U.S. at their place of residence on the dates when the
census is conducted.” Hearing Before the H. Comm. on Oversight & Reform, 116th Cong. 31
(Mar. 14, 2019) (emphasis added). Secretary Ross further testified that “the Department of
Commerce is fully committed to administering as complete and accurate decennial census as we
can. We intend to try to count every person taking all necessary actions to do so.” Id. (emphasis
added).
72. During a congressional committee hearing in February 2020, Census Bureau
Director Dillingham stated that the Bureau will “count everyone, wherever they are living,”
including undocumented immigrants. Hearing Before the H. Comm. on Oversight & Reform,
116th Cong. 12 (Feb. 12, 2020) (emphasis added).
73. The federal government has repeatedly argued that excluding undocumented
immigrants from the decennial enumeration or the apportionment base violates the Constitution
and applicable statutes. For example, in Federation for American Immigration Reform v.
Klutznick, the government urged a district court to reject claims demanding exclusion of
undocumented immigrants from the “whole number of persons” that constitutes the
apportionment base. The government explained that “the plain language of the Constitution, as
well as the intent of its framers, establishes that all inhabitants, including illegal aliens, must be
enumerated for the purpose of apportioning Representatives.” 4
74. Similarly, the Department of Justice’s Office of Legislative Affairs has opined
that the Constitution requires inclusion of undocumented immigrants in the decennial
4
Defs.’ Mem. of Points & Authorities in Support of Mot. to Dismiss or for Summary Judgment,
No. 79-3269 (D.D.C.), reprinted in 1980 Census: Counting Illegal Aliens, Hr’gs Before the S.
Subcomm. on Energy, Nuclear Proliferation and Federal Services, 96th Cong. 125-156 (1980).
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enumeration that constitutes the apportionment base. See, e.g., Letter from Carol T. Crawford,
Assistant Attorney General, to Senator Jeff Bingham (Sept. 22, 1989).
75. The population count derived from the census is used not only to apportion
representatives and ultimately electors “but also to allocate federal funds to the States and to
draw electoral districts.” Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2561 (2019).
76. For these reasons, the “decennial enumeration of the population is one of the most
critical constitutional functions our Federal Government performs.” Pub. L. No. 105-119,
§ 209(a)(5), 111 Stat. 2440, 2481 (1997).
B. The Census Act requires that the total population count used for
congressional apportionment include all persons living in the United States.
77. The Constitution provides that an “actual Enumeration shall be made” every ten
years “in such manner as [Congress] shall direct by law.” U.S. Const. art. I, § 2. Congress has
exercised its authority over the census by enacting various statutory provisions (“Census Act”).
78. Congress has assigned the responsibility of conducting the decennial enumeration
to the Secretary of Commerce, and the Secretary may delegate authority for establishing
procedures to conduct the census to the Census Bureau. 13 U.S.C. §§ 2, 4, 141.
79. The Census Act requires that the decennial census be taken on April 1, 2020, the
“decennial census date.” 13 U.S.C. § 141(a). The Secretary of Commerce has no discretion to
delay the decennial census date under the Census Act. Id.
80. Within nine months of the decennial census date, i.e., by January 1, 2021, the
Secretary of Commerce must report to the President “[t]he tabulation of total population by
States” that is “required for the apportionment of Representatives in Congress among the several
States.” Id. § 141(b).
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81. Then, between January 3 and January 8, 2021, the President must transmit to
Congress “a statement showing the whole number of persons in each State, excluding Indians not
taxed, as ascertained under the . . . decennial census of the population, and the number of
Representatives to which each State would be entitled under an apportionment of the then
existing number of Representatives by the method known as the method of equal proportions, no
State to receive less than one Member.” 2 U.S.C. § 2a(a).
82. Within fifteen days of receiving the President’s statement, the Clerk of the House
of Representatives must transmit “to the executive of each State a certificate of the number of
Representatives to which such State is entitled.” Id. § 2a(b).
II. Defendants’ unlawful attempt to add a citizenship question to the decennial census.
83. Defendants’ decision and actions to exclude undocumented immigrants from the
apportionment base are directly related to Secretary Ross’s earlier and unlawful attempt to alter
the decennial census that provides the apportionment count by adding a question inquiring about
citizenship status.
84. On March 26, 2018, Secretary Ross directed the Census Bureau to use the 2020
Census to demand information on the citizenship status of every resident in the country. 5
Secretary Ross stated that he had decided to add the citizenship question because doing so was
“necessary to provide complete and accurate data” that would aid enforcement of the Voting
Rights Act (VRA) by the Department of Justice.
5
Memorandum from Sec’y of Commerce Wilbur Ross to Under Sec’y of Commerce for Econ.
Affairs Karen Dunn Kelley, Reinstatement of a Citizenship Question on the 2020 Decennial
Census Questionnaire 7 (Mar. 26, 2018), https://www.commerce.gov/sites/commerce.gov/files”
/2018-03-26_2.pdf.
19
85. Many of the plaintiffs here filed a lawsuit challenging the addition of the
citizenship question as, among other things, arbitrary and capricious and contrary to law, in
violation of the Administrative Procedure Act, 5 U.S.C. § 706(2). See Second Am. Compl., New
York v. U.S. Dep’t of Commerce, No. 18-cv-2921, Doc. No. 210 (S.D.N.Y. filed July 23, 2018).
86. After an eight-day bench trial, the United States District Court for the Southern
District of New York vacated Secretary Ross’s decision to add a citizenship question to the 2020
census questionnaire. New York, 351 F. Supp. 3d at 679. In so ruling, the court concluded that
the plaintiffs had standing to sue because the inclusion of a citizenship question would deter
participation in the census by households with a noncitizen and lead to a differential undercount
of noncitizens and Hispanics that would concretely harm plaintiffs in various ways. Id. at 578-
593. For example, the court found that adding a citizenship question would cause some plaintiffs
to lose congressional seats, impair state and local redistricting efforts that rely on census
numbers, harm the quality and accuracy of census data, and reduce federal funding to plaintiffs’
jurisdictions. Id. at 593-98, 607-15.
87. The court also determined that Secretary Ross’s decision violated the
Administrative Procedure Act for several reasons, including because his rationale for adding the
citizenship question was pretextual. Id. at 660-64. As the court explained, the evidence was
“clear that Secretary Ross’s rationale was pretextual—that is, that the real reason for his decision
[to add the citizenship question] was something other than the sole reason he put forward in his
Memorandum, namely enhancement of DOJ’s VRA enforcement efforts.” Id. at 660. The court
noted that it was “unable to determine—based on the existing record, at least—what Secretary
Ross’s real reasons for adding the citizenship question were.” Id. at 569-70.
20
88. The Supreme Court granted certiorari before judgment and affirmed, in relevant
part, the district court’s final judgment setting aside the Secretary’s decision to add a citizenship
question. The Supreme Court held that “the Secretary’s decision must be set aside because it
rested on a pretextual basis.” Dep’t of Commerce, 139 S. Ct. at 2573. The Court reasoned that
the Secretary’s decision “cannot be adequately explained in terms of DOJ’s request for improved
citizenship data to better enforce the VRA” because there was “a significant mismatch between
the decision the Secretary made and the rationale he provided.” Id. at 2575. In short, Secretary
Ross’s “VRA enforcement rationale—the sole stated reason—seems to have been contrived.”
Id.
89. After the Supreme Court remanded the case to the district court, the court entered
a permanent injunction that enjoined the defendants “from including a citizenship question on
the 2020 decennial census questionnaire; from delaying the process of printing the 2020
decennial census questionnaire after June 30, 2019 for the purpose of including a citizenship
question; and from asking persons about citizenship status on the 2020 census questionnaire or
otherwise asking a citizenship question as part of the 2020 decennial census.” Order, New York
v. Dep’t of Commerce, No. 18-cv-2921, Doc. No. 634 (S.D.N.Y. July 16, 2019).
90. On July 11, 2019, President Trump issued an Executive Order to “ensure that
accurate citizenship data is compiled in connection with the census” notwithstanding the
Supreme Court’s decision and the district court’s order precluding the use of a citizenship
question in the 2020 Census. Collecting Information About Citizenship Status in Connection
with the Decennial Census, Exec. Order 13,880, § 1, 84 Fed. Reg. 33,821, 33,821 (July 16,
2019).
21
91. To achieve that goal, President Trump directed all executive departments and
agencies to provide to the Department of Commerce “the maximum assistance permissible,
consistent with law, in determining the number of citizens and noncitizens in the country.” Id.
92. In a public statement accompanying the issuance of the Executive Order, given
from the White House’s Rose Garden, President Trump made clear that the federal government
would not be “backing down on our effort to determine the citizenship status of the United States
population.” President Donald Trump, Remarks by President Trump on Citizenship and the
Census (July 19, 2018), https://www.whitehouse.gov/briefings-statements/remarks-president-
trump-citizenship-census/. President Trump stated that “[t]here used to be a time when you
could proudly declare, ‘I am a citizen of the United States.’ Now they’re trying to erase the very
existence of a very important word and a very important thing: citizenship.” Id.
93. President Trump further stated that, pursuant to the Executive Order, the federal
government will be taking steps “to ensure that citizenship is counted so that we know how many
citizens we have in the United States.” Id.
III. The July 21, 2020 Memorandum directing exclusion of undocumented immigrants
from the apportionment count.
94. Recent events have now laid bare the real reasons driving Secretary Ross’s
decision to add a citizenship question to the 2020 Census: to exclude undocumented persons
from the “whole number of persons” that constitutes the apportionment base and to discriminate
against Hispanics and noncitizens.
95. On July 21, 2020, President Trump issued a memorandum (i) declaring that
undocumented immigrants will be excluded from the “whole number of persons in each State”
enumerated by the 2020 Census and used to apportion the number of Representatives to each
State, and (ii) directing the Secretary to take “all appropriate action” to provide the President
22
with information to exclude undocumented immigrants from the apportionment base.
Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020
Census, 85 Fed. Reg. 44,679 (July 23, 2020) (attached as Ex. 1).
96. The Memorandum declares that “[f]or the purpose of the reapportionment of
Representatives following the 2020 Census, it is the policy of the United States to exclude from
the apportionment base aliens who are not in a lawful immigration status under the Immigration
and Nationality Act, as amended (8 U.S.C. 1101 et seq.), to the maximum extent feasible.” Id. at
44,680.
97. The Memorandum asserts that the Executive branch has purported “discretion” to
exclude from the apportionment base all undocumented immigrants who reside in the United
States, id. at 44,679—no matter how long they have been living here.
98. The Memorandum acknowledges that the Constitution explicitly requires
apportionment of Representatives based on the “whole number of persons in each State.” Id. It
states that not every person who is physically present on the decennial census date is living in the
United States. Id. For example, the Memorandum states, noncitizens who are temporarily
visiting on vacation or for business are not “inhabitants” of the United States and are thus not
included in the apportionment base. Id. Without any plausible basis, the Memorandum then
asserts that purported “discretion delegated to the executive branch to determine who qualifies as
an ‘inhabitant’ includes authority to exclude from the apportionment base aliens who are not in a
lawful immigration status”—even if those persons have been living in the United States for many
years. Id.
23
99. In the Memorandum, President Trump targets States (including some of the
plaintiff States) that have many undocumented immigrants living in their jurisdictions or that
have declined to affirmatively assist the federal government’s immigration enforcement efforts.
100. For example, President Trump stated that “[a]ffording congressional
representation, and therefore formal political influence, to States on account of the presence
within their borders of aliens who have not followed the steps to secure a lawful immigration
status under our laws undermines those principles.” Id. at 44,680. The Memorandum further
stated that States that decline to adopt state laws or policies to assist federal efforts to enforce the
immigration laws passed by Congress should essentially be stripped of any “representation in the
House of Representatives” that is based on undocumented immigrants living in their
jurisdictions. Id.
101. The Memorandum requires Secretary Ross, in preparing his § 141(b) report of the
actual enumeration on which apportionment must be based, to take actions “to provide
information” to the President to exclude undocumented immigrants from apportionment. Id.
The Memorandum thus directs the Secretary (and by extension the Commerce Department and
Census Bureau) to take actions to enable the President to exclude undocumented immigrants
from his § 2a(a) report of both the “whole number of persons in each State” and the
corresponding number of Representatives that each State receives. Id.
102. On the same day that he issued the Memorandum, President Trump issued a
public statement making clear that Defendants’ decision and actions to exclude undocumented
immigrants from the apportionment base are a continuation of the federal government’s prior
unlawful attempt to add a citizenship question to the 2020 Census. President Donald Trump,
24
Statement from the President Regarding Apportionment (July 21, 2020),
https://www.whitehouse.gov/briefings-statements/statement-president-regarding-apportionment/.
103. As President Trump’s statement explained, he had previously asserted during his
Rose Garden statements in July 2019 that he “would not back down in [his] effort to determine
the citizenship status of the United States population.” Id. He further explained that he was now
following “through on that commitment by directing the Secretary of Commerce to exclude
illegal aliens from the apportionment base following the 2020 census.” Id. Echoing his earlier
statements about the citizenship question, Trump further asserted that “[t]here used to be a time
when you could proudly declare, ‘I am a citizen of the United States’” and that “the radical left is
trying to erase the existence of this concept and conceal the number of illegal aliens in our
country.” Id. He stated that his Memorandum directing exclusion of undocumented immigrants
from the apportionment base responds to a purported “broader left-wing effort to erode the rights
of Americans citizens.” Id.
104. Upon information and belief, following receipt of the Memorandum, the Secretary
or Department of Commerce has issued (or will imminently issue) directives to the Census
Bureau, constituting final agency action, to implement President Trump’s directive to exclude
noncitizens from the enumeration and apportionment base.
IV. Defendants’ decision to exclude undocumented immigrants from the apportionment

base is motivated by discriminatory animus toward Hispanics and immigrant
communities of color.
105. The Memorandum explicitly states that its goal is to reduce political influence and
congressional representation to jurisdictions with a larger share of undocumented immigrants.
85 Fed. Reg. at 44,680.
106. President Trump has repeatedly articulated concerns about the growth of
immigrant communities and the impact of that growth on political power, and has sought to
25
minimize the power of Hispanic and immigrant communities to increase the power of non-
Hispanic whites.
107. During the 2016 presidential campaign, for example, President Trump tweeted:
“How crazy—7.5% of all births in U.S. are to illegal immigrants, over 300,000 babies per year.
This must stop.” 6
108. On April 5, 2018, when discussing his opposition to family-based immigration
systems, President Trump claimed that Democrats favor “chain migration” because the party
believes the immigrants will “vote Democratic.” Three weeks later, on April 28, President
Trump revisited this topic, stating that Democrats favor undocumented immigration because “all
of these people that are pouring across are going to vote for Democrats, they’re not going to vote
for Republicans.” 7
109. Defendants’ exclusion of undocumented immigrants from the apportionment base
is of a piece with President Trump’s anti-immigrant and anti-Hispanic rhetoric and his
Administration’s targeting of immigrant and Hispanic communities, which reflect animus
towards those groups.
110. President Trump has long engaged in rhetoric that disparages Hispanics and
immigrants of color. In statements stretching back to the beginning of his campaign, President
Trump has repeatedly dehumanized, devalued, and vilified immigrants in general, and
specifically immigrants from Latin America. For instance:
6
Donald Trump (@realDonaldTrump), Twitter (Aug. 21, 2015 6:56 AM),
https://twitter.com/realdonaldtrump/status/634725641972248576.
7
Fox News (@FoxNews), Twitter (Apr. 28, 2018),
https://twitter.com/foxnews/status/990383288232620032.
26
a. During his campaign launch in June 2015, President Trump claimed that “[w]hen
Mexico sends its people. . . . They’re sending people that have lots of problems,
and they’re bringing those problems with us. They’re bringing drugs. They’re
bringing crime. They’re rapists. . . . It’s coming from more than Mexico. It’s
coming from all over South and Latin America.” 8
b. During a meeting about recent immigrants in the Oval Office in June 2017,
President Trump stated that 15,000 immigrants from Haiti “all have AIDS” and that
40,000 immigrants from Nigeria would never “go back to their huts” in Africa after
seeing the United States. 9
c. During a January 2018 meeting with lawmakers, while discussing protections for
immigrants from Haiti, El Salvador and other African countries, President Trump
asked why the United States is “having all these people from shithole countries
come here” and suggested that the United States should have more immigrants from
countries like Norway. 10
8
Full text: Donald Trump announces a presidential bid, Wash. Post, June 16, 2015,
https://www.washingtonpost.com/news/post-politics/wp/2015/06/16/full-text-donald-trump-
announces-a-presidential-bid/.
9
Michael D. Shear & Julie Hirschfeld Davis, Stoking Fears, Trump Defied Bureaucracy to
Advance Immigration Agenda, N.Y. Times, Dec. 23, 2017,
https://www.nytimes.com/2017/12/23/us/politics/trump-immigration.html.
10
Ali Vitali, Kasie Hunt & Frank Thorp V, Trump referred to Haiti and African nations as
‘shithole’ countries, Jan. 12, 2018, https://www.nbcnews.com/politics/white-house/trump-
referred-haiti-african-countries-shithole-nations-n836946.
27
d. In a May 16, 2018 speech, President Trump stated that “[w]e have people coming
into the country, or trying to come in . . . . You wouldn’t believe how bad these
people are. These aren’t people, these are animals.” 11
e. Speaking on the topic of migrant groups travelling to the United States from Central
America at a rally on May 8, 2019, President Trump, stated, “[W]hen you see these
caravans starting out with 20,000 people, that’s an invasion.” 12
111. President Trump has acted on this rhetoric by adopting policies that seek to
isolate, exclude, and instill fear in Hispanic immigrants and other immigrants of color. For
instance, the Trump Administration has:
a. Attempted to rescind the Deferred Action for Childhood Arrivals program, which
protected 800,000 individuals, 90% of whom were Hispanic and 80% of whom
were Mexican-American;
b. Banned travel from several majority-Muslim countries;
c. Suspended refugee admissions to the United States;
d. Terminated special protections from removal for migrants from nations
experiencing war and natural disasters, including Nicaragua, Honduras, Haiti and El
Salvador;
11
Julie Hirschfeld Davis, Trump Calls Some Unauthorized Immigrants ‘Animals’ in Rant, N.Y.
Times, May 16, 2018, https://www.nytimes.com/2018/05/16/us/politics/trump-undocumented-
immigrants-animals.html.
12
President Trump Holds Rally in Panama City Beach, Florida, C-SPAN (May 8, 2019) (video),
https://www.c-span.org/video/?460412-1/president-trump-holds-rally-panama-city-beach-florida.
28
e. Increased actual and threatened raids and deportations of undocumented migrants,
including, as recently as June 17, 2019, when President Trump tweeted a threat that
“[n]ext week ICE will begin the process of removing the millions of illegal aliens
who have illicitly found their way into the United States. They will be removed as
fast as they come in”; 13
f. Attempted to build a physical wall along the Mexico-U.S. border;
g. Adopted policies of separating children from their families when entering the
United States from Mexico, and detaining children separate from their parents and
families thereafter; and
h. Maintained children and other migrants across the U.S.-Mexico border in detention
facilities that the United Nations Children’s Fund has described as “dire” and as
causing “irreparable harm” to children housed in them. 14
112. These public statements and actions from Defendant Trump establish that the
rationale for excluding undocumented immigrants from the apportionment base is motivated by
racial animus against immigrants of color, and a desire to curb the political power of immigrant
communities of color.
13
Nick Miroff & Maria Sacchetti, Trump vows mass immigration arrests, removals of ‘millions
of illegal aliens’ starting next week, Wash. Post, June 17, 2019,
https://www.washingtonpost.com/immigration/trump-vows-mass-immigration-arrests-removals-
of-millions-of-illegal-aliens-starting-next-week/2019/06/17/4e366f5e-916d-11e9-aadb-
74e6b2b46f6a_story.html?utm_term=.ece5e6a6b7e6.
14
After Rio Grande tragedy, UNICEF chief highlights “dire” detention centres on US-Mexico
border, UN News (June 27, 2019), https://news.un.org/en/story/2019/06/1041421.
29
V. Plaintiffs are harmed by Defendants’ decision to exclude undocumented immigrants

from the apportionment base.
113. Defendants’ decision and actions to exclude undocumented immigrants from the
apportionment base harm Plaintiffs’ sovereign, quasi-sovereign, economic, and proprietary
interests because they will cause some Plaintiffs to lose congressional seats and decrease their
share of presidential electors in the Electoral College; skew the division of electoral districts
within Plaintiffs’ jurisdictions by impairing state and local redistricting efforts that rely on the
census count; reduce federal funds to Plaintiffs’ jurisdictions by deterring immigrants from
responding to the decennial census that is currently underway; and degrade the quality of census
data that Plaintiffs rely on to perform critical governmental functions.
114. First, excluding undocumented immigrants from the apportionment count will
likely cause several States to lose one or more Representatives in Congress, directly harming
those Plaintiff States, as well as those Plaintiff counties and cities within affected States, by
diluting their political power and undermining their interest in fair congressional representation.
115. For example, large numbers of undocumented immigrants reside in California,
Texas, New York, New Jersey, and Illinois. 15 Defendants’ decision to exclude undocumented
immigrants from the apportionment count is likely to directly reduce representation for those
jurisdictions in Congress, injuring the representational interests of Plaintiffs the State of New
York, State of New Jersey, State of Illinois, City of Chicago, City of New York, City and County
of San Francisco, Cameron County, El Paso County, Hidalgo County, and Monterey County.
15
Pew Research Center, November 27, 2018, U.S. Unauthorized Immigrant Total Dips to Lowest
Level in a Decade, https://www.pewresearch.org/hispanic/wp-
content/uploads/sites/5/2019/03/Pew-Research-Center_2018-11-27_U-S-Unauthorized-
Immigrants-Total-Dips_Updated-2019-06-25.pdf.
30
Other Plaintiffs may also suffer direct representational harms if undocumented individuals are
excluded from the apportionment count.
116. The Memorandum itself acknowledges and intends these harms. See 85 Fed. Reg.
at 44,680 (recognizing that excluding undocumented immigrants will “result in the allocation” of
fewer congressional seats “than would otherwise be allocated” to some states).
117. The loss of a congressional seat will also cause the affected Plaintiff States,
counties, and cities to lose one or more votes in the Electoral College, impairing their ability to
elect the President and Vice President and harming their political power.
118. Second, excluding undocumented immigrants from the apportionment base will
harm Plaintiffs’ representational interests by directly impairing Plaintiffs’ ability to draw
accurate districting lines for congressional, state, or local legislative districts.
119. To comply with the Fourteenth Amendment’s one-person, one-vote requirement,
States must use total population as the population base for congressional redistricting. Wesberry
v. Sanders, 376 U.S. 1, 18 (1964) (describing “our Constitution's plain objective of making equal
representation for equal numbers of people the fundamental goal for the House of
Representatives”); see Evenwel, 136 S. Ct. at 1129. Defendants’ decision to exclude
undocumented immigrants from the apportionment base will undermine Plaintiff States’ ability
to comply with this Constitutional mandate.
120. Certain Plaintiffs are required by state constitutional or statutory provisions to use
the total population count from the decennial census as the basis for redistricting within their
jurisdictions. New York state law provides, for example, that “each federal census taken
decennially . . . shall be controlling as to the number of inhabitants in the state or any part thereof
for the purposes of the apportionment of members of assembly and readjustment or alteration of
31
senate and assembly districts.” N.Y. Const. art. III, § 4(a); see also id. §§ 3-5, 5-a. Many of the
other Plaintiffs have comparable laws. 16
121. Third, excluding undocumented immigrants from the apportionment base will
deprive Plaintiffs of critical federal funding and inflict substantial financial harms on Plaintiffs.
122. Political science literature establishes that States that lose seats in Congress
typically see a decrease in their share of federal outlays in subsequent years due to the reduction
in their voting power in Congress. See, e.g., Roy Elis, Neil Malhotra, & Marc Meredith,
Apportionment Cycles as Natural Experiments, Political Analysis 358-76 (2009). Those
Plaintiffs likely to lose representation in Congress therefore also stand to lose critical federal
resources as a result.
123. All Plaintiffs will further suffer financial harm because Defendants’ decision to
exclude undocumented immigrants from the apportionment base will deter participation in the
ongoing decennial census, undermining the Census Bureau’s efforts to count immigrants and
their families, and depriving Plaintiffs of their fair share of census-derived federal funds.
124. Plaintiffs are home to some of the hardest-to-count communities in the nation,
including significant populations of authorized and undocumented immigrants. 17 Many of these
immigrants live in mixed-status families, with U.S. citizen children, siblings, or spouses. These
16
See, e.g., Chicago Municipal code § 2-8-300; D.C. Code § 1-1011.01; Mass. Const. Amend.
art. CI, §§ 1, 2, arts. CIX, CXVII, CXIX; Nev. Const. art. IV, § 5, art. XV, § 13; Tex. Const. art.
3, § 26; Va. Code Ann. § 30-265; Vt. Const. Ch. II, §§ 13, 18, 73; Vt. Stat. tit. 17, § 1902; Wash.
Const. art. II, § 43; Wash. Rev. Code §§ 29A.76.010, 44.05.090.
17
Jeffrey S. Passel & D’Vera Cohn, U.S. Unauthorized Immigrant Total Dips to Lowest Level in
a Decade, Pew Research Center (Nov. 27, 2018), https://www.pewresearch.org/hispanic/wp-
content/uploads/sites/5/2019/03/Pew-Research-Center_2018-11-27_U-S-Unauthorized-
Immigrants-Total-Dips_Updated-2019-06-25.pdf.
32
households are already less likely to respond to the census questionnaire; this Administration’s
ongoing efforts to target immigrants—including Defendants’ failed efforts to add a citizenship
question to the decennial census—have engendered substantial fear within these communities. 18
125. The COVID-19 pandemic has further hampered efforts to ensure that all people—
including hard-to-count populations—are counted. For example, the census relies upon non-
response follow up operations (NRFU) to contact potential respondents and increase the census
response rate. But NRFU operations were suspended and delayed during the pandemic, and the
Government Accountability Office has raised concerns that even when resumed, these efforts
will be less effective in light of the virus. 19
126. Defendants’ decision to exclude undocumented immigrants from the
apportionment base was announced just weeks before Census Bureau enumerators were finally
scheduled to go into the field to encourage households to respond to the census, 20 creating
confusion and further increasing the risk of an undercount.
18
See, e.g., Alexandra Schmidt, Citizenship question is gone. Michigan immigrants still distrust
the Census, (Mar. 2, 2020), https://www.bridgemi.com/michigan-government/citizenship-
question-gone-michigan-immigrants-still-distrust-census (noting ongoing “fear among
immigrants about what the government will do with information collected in the count”).
19
See U.S. Government Accountability Office, 2020 Census: COVID-19 Presents Delays and
Risks to Census Count https://www.gao.gov/products/GAO-20-551R#summary.
20
U.S. Census Bureau, 2020 Census Operational Adjustments Due to COVID-19,
https://2020census.gov/en/news-events/operational-adjustments-covid-19.html (last visited July
24, 2020).
33
127. The announcement of Defendants’ decision was intended to promote fear and
deter participation in the census by immigrants and their families, including through the
President’s remarks that he “will not stand” for efforts to “conceal the number” of immigrants. 21
128. The Census Bureau has repeatedly emphasized that “[e]veryone counts,” citizens
and noncitizens alike. 22 But Defendants’ decision and actions to exclude undocumented
immigrants from the apportionment base do the opposite. Excluding undocumented immigrants
from the apportionment count communicates to immigrants that their census responses are less
valuable and less important than those of citizens.
129. Many federal programs rely on the population figures collected in the decennial
census to distribute federal funds among states and local governments. At least 320 federal
domestic financial assistance programs rely on census data to allocate money; in fiscal year
2016, these programs “allocated about $900 billion using census-derived data.” New York, 351
F. Supp. 3d at 596. These programs support essential services for Plaintiffs, including
healthcare, public education, social services, and infrastructure development. The reduction in
census participation caused by Defendants’ announcement that they will exclude undocumented
immigrants from the apportionment base will harm Plaintiffs by depriving them of their statutory
fair share of federal funding and removing crucial resources for important government services.
130. Finally, by deterring immigrants and their families from responding to the
decennial census, Defendants’ decision to exclude undocumented immigrations from the
apportionment base will degrade the quality of census data. As census self-response rates
21
President Donald Trump, Statement from the President Regarding Apportionment (July 21,
2020), https://www.whitehouse.gov/briefings-statements/statement-president-regarding-
apportionment/.
22
See, e.g., Census Bureau, Setting the Record Straight, https://2020census.gov/en/news-
events/rumors.html.
34
decline, the quality of the data—including information relating to population subgroups and their
characteristics—worsens. But Plaintiffs “rely on accurate data to perform essential
governmental functions,” including to draw school zones, deploy health care resources, and
make infrastructure decisions. Id. at 600. Defendants’ decision will therefore undermine
Plaintiffs’ interests in using accurate census data to perform critical governmental functions.
VI. Defendants have not identified any reliable method to accurately enumerate the
population of undocumented immigrants.
131. Defendants cannot reliably exclude undocumented immigrants from the
apportionment count. Just months ago, the Federal Government represented in separate litigation
that there is a “lack of accurate estimates of the resident undocumented population” on a state-
by-state basis. 23
132. Although a previous executive order suggests that the Census Bureau may rely on
administrative records to identify noncitizens, see 84 Fed. Reg. at 33,821, many noncitizens are
lawfully present; and administrative records cannot provide sufficiently reliable or accurate
information about whether noncitizens are undocumented, particularly for actual enumeration
and apportionment purposes. Indeed, administrative records are “weak in their coverage of
undocumented aliens because programs typically require documentation that many
undocumented aliens do not have.” 24 The limited administrative records available with respect
to undocumented immigrants are incomplete, outdated, and often inaccurate.
23
Decl. of Census Bureau Senior Advisor Enrique Lamas, Defs.’ Supp. Rule 26(a)(1)
Disclosures and Rule 26(a)(2)(C) Disclosures, Alabama v. Dep’t of Commerce, No. 2:18-cv-
00772-RDP (N.D. Ala. Mar. 13, 2020).
24
John L. Czajka, Can Administrative Records Be Used to Reduce Nonresponse Bias?, 645
Annals Am. Acad. Pol. & Social Sci. 171, 175 (2013).
35
133. For example, the Department of Homeland Security (DHS) recently
acknowledged that determining immigration status from their records is “challenging,” given the
“the decentralized nature of admission and immigration information, as well as the lack of a
nationwide departure control system.” 25 DHS has acknowledged that time lags between
collecting and reporting data mean that “data accuracy issues may arise.” 26 Even when used in
combination, existing administrative records are inadequate to ascertain reliably whether
individuals are undocumented.
134. Although the federal government has already suggested that they may resort to
“statistical modeling” to estimate the undocumented population in furtherance of the Presidential
Memorandum, the Census Bureau has not yet “formulated a methodology,” 27 and Defendants
have not articulated how such statistical modeling will comport with their constitutional
obligation to conduct an “actual Enumeration.” U.S. Const. art. 1, § 2, cl. 3.
135. Despite Defendants’ failure to identify any reliable method to accurately
enumerate the population of undocumented immigrants, Defendants have already decided to
report that population to the President and to exclude that population from the tabulation of total
population reported to Congress. Defendants’ commitment to proceeding on this course of
action without regard to the unreliability or inaccuracy of their underlying enumeration
demonstrates that they have prejudged the decision, violates their statutory obligations to report
25
Department of Homeland Security, Privacy Impact Assessment for the Department of
Homeland Security Immigration-Related Information Sharing with the U.S. Census Bureau, 2,
11 (Dec. 20, 2019), https://www.dhs.gov/sites/default/files/publications/privacy-pia-dhs079-
sharingwithcensus-december2019.pdf.
26
Id. at 6.
27
Hansi Lo Wang (@hansilowang), Twitter (July 22, 2020, 10:58 AM),
https://twitter.com/hansilowang/status/1285952274410409985.
36
total population, and confirms the irrational and arbitrary nature of their decision and actions to
exclude undocumented immigrants from the actual enumeration and apportionment base.
CLAIMS FOR RELIEF
FIRST CLAIM FOR RELIEF
(U.S. Constitution article I, section 2, clause 3;

U.S. Constitution amend. XIV, sec. 2)
136. Plaintiffs incorporate by reference the allegations set forth in each of the
preceding paragraphs of this Complaint.
137. The Constitution requires that “Representatives shall be apportioned among the
several States according to their respective numbers, counting the whole number of persons in
each State.” U.S. Const. amend. XIV, § 2; see id. art. I, § 2, cl. 3.
138. Undocumented immigrants are persons. Plyler, 457 U.S. at 210 (“Whatever his
status under the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that
term.”).
apportionment base for the purpose of reapportionment of Representatives following the 2020
Census, as well as any action they take to implement or further that decision, violates the
constitutional command to apportion Representatives “counting the whole number of persons in
each State.” U.S. Const. amend. XIV, § 2.
140. Defendants’ violation causes ongoing harm to Plaintiffs and their residents.
SECOND CLAIM FOR RELIEF
(U.S. Constitution amend. V—Due Process Clause)
141. Plaintiff States incorporate by reference the allegations set forth in each of the
37
142. Under the equal protection component of the Due Process Clause of the Fifth
Amendment to the United States Constitution, the federal government cannot deny to any person
the equal protection of its laws. The Due Process Clause specifically prohibits the federal
government from discriminating against individuals on the basis of race, ethnicity, and national
origin. U.S. Const. amend. V.
apportionment base is motivated by discriminatory animus toward Hispanics and immigrant
communities of color. This animus is reflected in Defendants’ repeated statements vilifying
these communities.
144. The highly unusual chronology of events, sharp departure from centuries of past
practice, articulation of a pretextual reason for Defendants’ now-enjoined efforts to demand
citizenship information on the decennial census questionnaire, and disproportionate burden of
Defendants’ decision on Hispanics and immigrant communities of color further indicate that
Defendants’ decision is motivated by unconstitutional discriminatory purpose.
145. By excluding undocumented immigrants from the apportionment base,
Defendants intend to reduce political power, influence, and funding resources among Hispanic
and immigrant communities as compared to non-Hispanic whites.
146. Defendants’ violation causes ongoing harm to Plaintiff States and their residents.
THIRD CLAIM FOR RELIEF
(U.S. Constitution amend. X)
148. The Tenth Amendment prohibits the federal government from coercing states and
localities to legislate or promote policies that capitulate to federal interests.

38
apportionment count punishes Plaintiffs for refusing to assist in the enforcement of federal
immigration law, in an attempt to coerce Plaintiffs to change their policies. 85 Fed. Reg. at
44,680.
150. The Tenth Amendment requires the federal government to respect the equal
sovereignty of the sovereign states.
151. Without adequate justification, Defendants’ decision to exclude undocumented
immigrants from the apportionment count impermissibly targets certain states for unfavorable
treatment because of their refusal to assist in the enforcement of federal immigration law. 85
Fed. Reg. at 44,680.
FOURTH CLAIM FOR RELIEF
(Administrative Procedure Act, 5 U.S.C. § 706)
154. The Administrative Procedure Act provides that the Court “shall” “hold unlawful
and set aside” agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706(2)(A).
apportionment base, as well as any action they take to implement or further that decision, is
arbitrary and capricious because it is contrary to the evidence before the agency and fails to
consider important aspects of the problem, including that Defendants lack data reliably to
exclude undocumented immigrants from the apportionment base.
39
156. Defendants’ decision and any implementing actions they undertake are also not in
accordance with law because the Census Act requires the Secretary to tabulate and report to the
President a tabulation of “total population by States . . . as required for apportionment of
Representatives in Congress.” 13 U.S.C. § 141(b).
PRAYER FOR RELIEF
Wherefore, Plaintiffs respectfully request that this Court:
1. Declare that Defendants’ decision to exclude undocumented immigrants from the
apportionment base following the 2020 Census, as well as any action they take to implement or
further that decision, is unauthorized by and contrary to the Constitution and laws of the United
States;
2. Declare that Defendants’ decision to exclude undocumented immigrants from the
apportionment base following the 2020 Census is intentionally discriminatory in violation of the
equal protection component of the Due Process Clause of the Fifth Amendment;
3. Declare that Defendants’ decision and any implementing actions they take are
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law within the
meaning of 5 U.S.C. § 706(2)(A);
4. Enjoin Defendants and all those acting on their behalf from excluding
undocumented immigrants from the apportionment base following the 2020 Census, or taking
any action to implement or further such a policy;
5. Issue an order holding unlawful, vacating, and setting aside the decision to
exclude undocumented immigrants from the apportionment base, as well as any action taken to
implement or further that decision;
40
6. Issue a writ of mandamus compelling the Secretary of Commerce to tabulate and
report to the President the total population by States under 13 U.S.C § 141(b) based solely on the
total number of persons in each State, including undocumented immigrants, without providing
any information about the number of undocumented immigrants in each State.
7. Issue a writ of mandamus compelling the President to transmit to Congress
pursuant to 2 U.S.C. § 2a(a) a statement of the whole number of persons in each State, and the
number of Representatives to which each State would be entitled under an apportionment of the
then existing number of Representatives by the method known as the method of equal
proportions, based on the total number of residents of each state, including undocumented
immigrants.
8. Award Plaintiffs their reasonable fees, costs, and expenses, including attorneys’
fees; and
9. Grant such other and further relief as the Court deems just and proper.
DATED: July 24, 2020 Respectfully submitted,
LETITIA JAMES
Attorney General of the State of New York
By: /s/ Matthew Colangelo

Steven C. Wu Matthew Colangelo
Deputy Solicitor General Chief Counsel for Federal Initiatives
Judith N. Vale Elena Goldstein
Senior Assistant Solicitor General Deputy Chief, Civil Rights Bureau
Office of the New York State Attorney
Of Counsel General
28 Liberty Street
New York, NY 10005
Phone: (212) 416-6057
Matthew.Colangelo@ag.ny.gov
Attorneys for the State of New York
41
PHILIP J. WEISER WILLIAM TONG

Attorney General of the State of Colorado Attorney General of Connecticut
By: /s/ Eric R. Olson By: /s/ Joshua Perry

Eric R. Olson,* Solicitor General Joshua Perry
Office of the Attorney General Special Counsel for Civil Rights
Colorado Department of Law Office of the Attorney General
1300 Broadway, 10th Floor 165 Capitol Avenue
Denver, CO 80203 Hartford, CT 06106
Phone: (720) 508-6548 Phone: (860) 808-5020
eric.olson@coag.gov Joshua.Perry@ct.gov
Attorney for the State of Colorado Attorney for the State of Connecticut
KATHLEEN JENNINGS KARL A. RACINE

Attorney General of Delaware Attorney General for the District of Columbia
By: /s/ Vanessa L. Kassab By: /s/ Kathleen Konopka

Christian Douglas Wright Kathleen Konopka
Director of Impact Litigation Deputy Attorney General
Vanessa L. Kassab Brendan B. Downes*
Deputy Attorney General James Graham Lake
Delaware Department of Justice Assistant Attorneys General
820 N. French Street, 5th Floor Public Advocacy Division
Wilmington, DE 19801 Office of the Attorney General
Phone: (302) 577-8600 441 4th Street NW
vanessa.kassab@delaware.gov Suite 600 South
Washington, DC 20001
Attorneys for the State of Delaware Phone: (202) 724-6610
Fax: (202) 741-0444
Kathleen.Konopka@dc.gov
Attorneys for the District of Columbia
42
CLARE E. CONNORS KWAME RAOUL

Attorney General of the State of Hawai‘i Attorney General of the State of Illinois
/s Nicholas M. McLean /s Jeffrey J. VanDam

Nicholas M. McLean Jeffrey J. VanDam, Public Interest Counsel
Deputy Solicitor General Office of the Illinois Attorney General
Department of the Attorney General 100 W. Randolph Street
State of Hawai‘i Chicago, IL 60601
425 Queen Street Tel. (312) 814-3400
Honolulu, HI 96813 Fax (312) 814-3212
(808) 586-1360 jvandam@atg.state.il.us
nicholas.mclean@hawaii.gov
Attorney for the State of Illinois
Attorney for the State of Hawai‘i
BRIAN E. FROSH MAURA HEALEY

Attorney General of the State of Maryland Attorney General of the Commonwealth of
Massachusetts
/s Andrea Trento
Andrea Trento, Assistant Attorney General /s Ann E. Lynch
Civil Litigation Division Ann E. Lynch*
Maryland Office of the Attorney General Miranda M. Cover*
200 St. Paul Place, 20th Floor Assistant Attorneys General
Baltimore, Maryland 21202 Public Protection & Advocacy Bureau
atrento@oag.state.md.us Massachusetts Attorney General’s Office
Phone: (410) 576-6472 One Ashburton Place
Boston, MA 02108
Attorney for the State of Maryland ann.lynch@mass.gov
mercy.cover@mass.gov
Phone: (617) 727-2200
Fax: (617) 727-5762
Attorneys for the Commonwealth of

Massachusetts
43
DANA NESSEL KEITH ELLISON

Attorney General of the State of Michigan Attorney General of the State of Minnesota
/s/ Christina M. Grossi /s/ Jacob Campion

Christina M. Grossi (P67482) Jacob Campion,* Assistant Attorney General
Assistant Attorney General Office of the Minnesota Attorney General
Michigan Department of Attorney General 445 Minnesota Street, Suite 1100
525 W. Ottawa Street St. Paul, Minnesota 55101-2128
Lansing, MI 48934 jacob.campion@ag.state.mn.us
GrossiC@michigan.gov (tel) 651-757-1459
(fax) 651-282-5832
Attorney for the State of Michigan
Attorney for the State of Minnesota
AARON D. FORD GURBIR S. GREWAL

Attorney General of the State of Nevada Attorney General of the State of New Jersey
By: /s/ Heidi Parry Stern By: /s/ Mayur P. Saxena

Heidi Parry Stern, Solicitor General Mayur P. Saxena, Assistant Attorney General
Office of the Nevada Attorney General Marie Soueid, Deputy Attorney General
555 E. Washington Ave., Ste. 3900 Office of the Attorney General
Las Vegas, NV 89101 25 Market Street
(775) 684-1136 Trenton, NJ 08625
HStern@ag.nv.gov Phone: (609) 376-2564
Marie.Soueid@law.njoag.gov
Attorney for the State of Nevada
Attorneys for the State of New Jersey
HECTOR BALDERAS JOSHUA H. STEIN

Attorney General of New Mexico Attorney General of the State of North
Carolina
By: /s/ Tania Maestas
Tania Maestas By: /s/ Sripriya Narasimhan
Chief Deputy Attorney General Sripriya Narasimhan*
P.O. Drawer 1508 Deputy General Counsel
Santa Fe, New Mexico 87504-1508 North Carolina Department of Justice
tmaestas@nmag.gov 114 W. Edenton Street
Raleigh, NC 27603
Attorney for the State of New Mexico, by and SNarasimhan@ncdoj.gov
through Attorney General Hector Balderas Tel. (919) 716-6421
Attorney for the State of North Carolina
44
ELLEN F. ROSENBLUM JOSH SHAPIRO

Attorney General of the State of Oregon Attorney General of the Commonwealth of
Pennsylvania
/s Brian de Haan
Brian de Haan, Assistant Attorney General Michael J. Fischer
Trial Attorney Chief Deputy Attorney General
Tel. (971) 673-1880
Fax (971) 673-5000 /s Aimee D. Thomson
brian.a.dehaan@doj.state.or.us Aimee D. Thomson
Jacob B. Boyer
Attorney for the State of Oregon Deputy Attorneys General
1600 Arch Street, Suite 300
Philadelphia, PA 19103
athomson@attorneygeneral.gov
Tel. (267) 940-6696
Attorneys for the Commonwealth of

Pennsylvania
PETER F. NERONHA THOMAS J. DONOVAN, JR.

Attorney General of the State of Rhode Island Attorney General of the State of Vermont
/s Justin J. Sullivan /s Benjamin D. Battles

Justin J. Sullivan*, Special Assistant Attorney Benjamin D. Battles, Solicitor General
General Julio A. Thompson*
Office of the Rhode Island Attorney General Assistant Attorney General, Civil Rights Unit
150 South Main St. Office of the Vermont Attorney General
Providence, RI 02903 109 State Street
Phone: (401) 274-4400, ext. 2007 Montpelier, VT 05609
Fax: (401) 222-2995 Benjamin.Battles@vermont.gov
jjsullivan@riag.ri.gov Tel. (802) 828-5500
Fax (802) 828-3187
Attorneys for the State of Rhode Island
Attorneys for the State of Vermont
45
MARK R. HERRING ROBERT W. FERGUSON

Attorney General of the Commonwealth of Attorney General of the State of Washington
Virginia
/s/ Laura K. Clinton
/s Michelle S. Kallen Laura K. Clinton*
Michelle S. Kallen,* Deputy Solicitor General Assistant Attorney General
202 North Ninth Street Complex Litigation Division
Richmond, VA 23219 800 Fifth Avenue, Suite 2000
MKallen@oag.state.va.us Seattle, WA 98104
Tel. (804) 786-7704 LauraC5@atg.wa.gov
Fax (804) 371-0200 (206) 233-3383
Attorneys for the Commonwealth of Virginia Peter Gonick, Deputy Solicitor General
Office of the Attorney General
PO Box 40100
Olympia, WA 98504-0100
peterg@atg.wa.gov
Tel. (360) 753-6245
Attorneys for the State of Washington
MATTHEW JERZYK MARK A. FLESSNER

City Solicitor for the City of Central Falls Corporation Counsel of the City of Chicago
/s Matthew Jerzyk /s Stephen J. Kane

Matthew Jerzyk* Stephen J. Kane,* Deputy Corporation Counsel
City Solicitor Rebecca Hirsch,* Assistant Corporation Counse
City of Central Falls City of Chicago Law Department
580 Broad Street 121 North LaSalle Street, Room 600
Central Falls, RI 02863 Chicago, IL 60602
MJerzyk@CentralFallsRI.us Stephen.kane@@cityofchicago.org
Tel. (401) 727-7422 Rebecca.hirsch2@cityofchicago.org
Tel. (312) 744-8143
46
ZACH KLEIN JAMES E. JOHNSON

Columbus City Attorney Corporation Counsel of the City of New York
/s Richard N. Coglianese /s Aaron Bloom

Richard N. Coglianese,* Assistant City Aaron Bloom
Attorney Joseph Pepe
Lara N. Baker-Morrish,* Assistant City Tonya Jenerette
Attorney 100 Church Street
77 North Front Street, 4th Floor New York, NY 10007
Columbus, Ohio 43215 abloom@law.nyc.gov
rncoglianese@columbus.gov Tel. (212) 356-4055
lnbaker-morrish@columbus.gov
(tel) 614-645-7385
(fax) 614-645-6949
MARCEL S. PRATT OFFICE OF THE PHOENIX CITY

Solicitor of the City of Philadelphia ATTORNEY
Cris Meyer, City Attorney
/s Marcel S. Pratt
Marcel S. Pratt,* City Solicitor /s Patricia J. Boland
Diana P. Cortes* Patricia J. Boland*
Chair, Litigation Group Assistant Chief Counsel
Eleanor N. Ewing,* Chief Deputy Solicitor City of Phoenix Law Department
Benjamin H. Field* 200 West Washington, Suite 130
Divisional Deputy City Solicitor Phoenix, AZ 85003-1611
Michael W. Pfautz, Assistant City Solicitor Patricia.Boland@phoenix.gov
City of Philadelphia Law Department Tel. (602) 262-6761
1515 Arch Street, 17th Floor
Philadelphia, PA 19102
marcel.pratt@phila.gov
Tel. (215)683-5000
Fax (215)683-5299
47
YVONNE S. HILTON JEFFREY DANA

City Solicitor of the City of Pittsburgh City Solicitor for the City of Providence
/s Emily C. McNally /s Jeffrey Dana

Emily C. McNally,* Assistant City Solicitor Jeffrey Dana,* City Solicitor
Michael E. Kennedy, Associate City Solicitor City of Providence
City of Pittsburgh Law Department 444 Westminster Street
414 Grant Street Providence, RI 02903
313 City-County Building JDana@providenceri.gov
Pittsburgh, PA 15219 401-680-5333
Tel. (412)255-2613
Fax. (412)255-0711
emily.mcnally@pittsburghpa.gov
DENNIS J. HERRERA CITY OF SEATTLE

City Attorney for the City and County of San City of Seattle City Attorney
Francisco
/s Peter S. Holmes
/s Dennis J. Herrera Peter S. Holmes,* City Attorney
Dennis J. Herrera,* City Attorney Erica R. Franklin, Assistant City Attorney
Jesse C. Smith, Chief Assistant City Attorney Ghazal Sharifi, Assistant City Attorney
Ronald P. Flynn, Chief Deputy City Attorney 701 Fifth Avenue, Suite 2050
Yvonne R. Meré Seattle, WA 98104-7097
Chief of Complex and Affirmative Litigation Peter.Holmes@seattle.gov
Erin Kuka,* Deputy City Attorney Erica.Franklin@seattle.gov
Neha Gupta, Deputy City Attorney Ghazal.Sharifi@seattle.gov
San Francisco City Attorney’s Office Tel. (206) 684-8200
City Hall, Room 234 Fax (206) 684-4648
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102
Erin.Kuka@sfcityatty.org
Tel. (415) 554-4229
Fax (415) 554-4715
48
ROLANDO L. RIOS JO ANNE BERNAL

Special Counsel for Hidalgo and Cameron El Paso County Attorney
Counties
/s Jo Anne Bernal
/s Rolando Rios Jo Anne Bernal,* County Attorney
Rolando Rios* Ian Kaplan, Assistant County Attorney
Special Counsel for Hidalgo and Cameron El Paso County Attorney’s Office
Counties 500 E. San Antonio, Room 503
115 E. Travis, Suite 1645 El Paso, TX 79901
San Antonio, TX 78205 Joanne.bernal@epcounty.com
rrios@rolandorioslaw.com Ian.kaplan@epcounty.com
(210) 222-2102 Tel. (915) 546-2050
LESLIE J. GIRARD
Monterey County Counsel
/s Leslie J. Girard
Leslie J. Girard, County Counsel
Susan K. Blitch, Assistant County Counsel
William M. Litt, Deputy County Counsel
Office of the County Counsel
County of Monterey
168 West Alisal St., 3d Floor
Salinas, CA 93901
GirardLJ@co.monterey.ca.us
LittWM@co.monterey.ca.us
Tel. (831) 755-5045
Fax (831) 755-5283
* Application for pro hac vice admission forthcoming
49
Case 1:20-cv-05770 Document 1-1 Filed 07/24/20 Page 1 of 4
Exhibit 1
44679
Federal Register Presidential Documents

Vol. 85, No. 142
Thursday, July 23, 2020
Title 3— Memorandum of July 21, 2020
The President Excluding Illegal Aliens From the Apportionment Base

Following the 2020 Census
Memorandum for the Secretary of Commerce
By the authority vested in me as President by the Constitution and the

laws of the United States of America, it is hereby ordered as follows:
Section 1. Background. In order to apportion Representatives among the
States, the Constitution requires the enumeration of the population of the
United States every 10 years and grants the Congress the power and discretion
to direct the manner in which this decennial census is conducted (U.S.
Const. art. I, sec. 2, cl. 3). The Congress has charged the Secretary of
Commerce (the Secretary) with directing the conduct of the decennial census
in such form and content as the Secretary may determine (13 U.S.C. 141(a)).
By the direction of the Congress, the Secretary then transmits to the President
the report of his tabulation of total population for the apportionment of
Representatives in the Congress (13 U.S.C. 141(b)). The President, by law,
makes the final determination regarding the ‘‘whole number of persons
in each State,’’ which determines the number of Representatives to be appor-
tioned to each State, and transmits these determinations and accompanying
census data to the Congress (2 U.S.C. 2a(a)). The Congress has provided
that it is ‘‘the President’s personal transmittal of the report to Congress’’
that ‘‘settles the apportionment’’ of Representatives among the States, and
the President’s discretion to settle the apportionment is more than ‘‘ceremo-
nial or ministerial’’ and is essential ‘‘to the integrity of the process’’ (Franklin
v. Massachusetts, 505 U.S. 788, 799, and 800 (1992)).
The Constitution does not specifically define which persons must be included
in the apportionment base. Although the Constitution requires the ‘‘persons
in each State, excluding Indians not taxed,’’ to be enumerated in the census,
that requirement has never been understood to include in the apportionment
base every individual physically present within a State’s boundaries at the
time of the census. Instead, the term ‘‘persons in each State’’ has been
interpreted to mean that only the ‘‘inhabitants’’ of each State should be
included. Determining which persons should be considered ‘‘inhabitants’’
for the purpose of apportionment requires the exercise of judgment. For
example, aliens who are only temporarily in the United States, such as
for business or tourism, and certain foreign diplomatic personnel are ‘‘per-
sons’’ who have been excluded from the apportionment base in past censuses.
Conversely, the Constitution also has never been understood to exclude
every person who is not physically ‘‘in’’ a State at the time of the census.
For example, overseas Federal personnel have, at various times, been in-
cluded in and excluded from the populations of the States in which they
maintained their homes of record. The discretion delegated to the executive
branch to determine who qualifies as an ‘‘inhabitant’’ includes authority
to exclude from the apportionment base aliens who are not in a lawful
immigration status.
jbell on DSKJLSW7X2PROD with MEMO_FR
VerDate Sep<11>2014 18:39 Jul 22, 2020 Jkt 250001 PO 00000 Frm 00003 Fmt 4705 Sfmt 4790 E:\FR\FM\23JYO0.SGM 23JYO0
44680 Federal Register / Vol. 85, No. 142 / Thursday, July 23, 2020 / Presidential Documents
In Executive Order 13880 of July 11, 2019 (Collecting Information About

Citizenship Status in Connection With the Decennial Census), I instructed
executive departments and agencies to share information with the Department
of Commerce, to the extent permissible and consistent with law, to allow
the Secretary to obtain accurate data on the number of citizens, non-citizens,
and illegal aliens in the country. As the Attorney General and I explained
at the time that order was signed, data on illegal aliens could be relevant
for the purpose of conducting the apportionment, and we intended to exam-
ine that issue.
Sec. 2. Policy. For the purpose of the reapportionment of Representatives
following the 2020 census, it is the policy of the United States to exclude
from the apportionment base aliens who are not in a lawful immigration
status under the Immigration and Nationality Act, as amended (8 U.S.C.
1101 et seq.), to the maximum extent feasible and consistent with the discre-
tion delegated to the executive branch. Excluding these illegal aliens from
the apportionment base is more consonant with the principles of representa-
tive democracy underpinning our system of Government. Affording congres-
sional representation, and therefore formal political influence, to States on
account of the presence within their borders of aliens who have not followed
the steps to secure a lawful immigration status under our laws undermines
those principles. Many of these aliens entered the country illegally in the
first place. Increasing congressional representation based on the presence
of aliens who are not in a lawful immigration status would also create
perverse incentives encouraging violations of Federal law. States adopting
policies that encourage illegal aliens to enter this country and that hobble
Federal efforts to enforce the immigration laws passed by the Congress
should not be rewarded with greater representation in the House of Represent-
atives. Current estimates suggest that one State is home to more than 2.2
million illegal aliens, constituting more than 6 percent of the State’s entire
population. Including these illegal aliens in the population of the State
for the purpose of apportionment could result in the allocation of two
or three more congressional seats than would otherwise be allocated.
I have accordingly determined that respect for the law and protection of
the integrity of the democratic process warrant the exclusion of illegal aliens
from the apportionment base, to the extent feasible and to the maximum
extent of the President’s discretion under the law.
Sec. 3. Excluding Illegal Aliens from the Apportionment Base. In preparing
his report to the President under section 141(b) of title 13, United States
Code, the Secretary shall take all appropriate action, consistent with the
Constitution and other applicable law, to provide information permitting
the President, to the extent practicable, to exercise the President’s discretion
to carry out the policy set forth in section 2 of this memorandum. The
Secretary shall also include in that report information tabulated according
to the methodology set forth in Final 2020 Census Residence Criteria and
Residence Situations, 83 FR 5525 (Feb. 8, 2018).
Sec. 4. General Provisions. (a) Nothing in this memorandum shall be con-
strued to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency,
or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget
relating to budgetary, administrative, or legislative proposals.
(b) This memorandum shall be implemented consistent with applicable
law and subject to the availability of appropriations.
Federal Register / Vol. 85, No. 142 / Thursday, July 23, 2020 / Presidential Documents 44681
(c) This memorandum is not intended to, and does not, create any right
or benefit, substantive or procedural, enforceable at law or in equity by
any party against the United States, its departments, agencies, or entities,
its officers, employees, or agents, or any other person.
THE WHITE HOUSE,

Washington, July 21, 2020
[FR Doc. 2020–16216

Filed 7–22–20; 2:00 pm]
Billing code 3510–07–P
Trump.EPS</GPH>

New York v. Trump

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Case 1:20-cv-05770 Document 1 Filed 07/24/20 Page 1 of 49

UNITED STATES DISTRICT COURT

STATE OF NEW YORK, STATE OF

DONALD J. TRUMP, in his official

STEVEN DILLINGHAM, in his

1. This lawsuit challenges President Donald J. Trump’s blatant disregard of an

unambiguous constitutional command. The Fourteenth Amendment provides that

(Rep. John Bingham).

official, every cabinet officer, and every President.

3. Until now. On July 21, 2020, President Trump issued a “Memorandum on

unequivocally violate the Fourteenth Amendment. The constitutional mandate to base

Defendants from taking steps to carry out its unlawful policy.

5. But Defendants’ decision to exclude undocumented immigrants from

Defendants’ decision unlawfully discriminates against Hispanics and immigrant communities of

in violation of the Administrative Procedure Act.

6. Defendants’ decision harms Plaintiffs’ sovereign, quasi-sovereign, economic, and

proprietary interests. If Defendants succeed in excluding undocumented immigrants from

census data on which they rely to perform essential government functions.

Delaware, District of Columbia, State of Hawai‘i, State of Illinois, State of Maryland,

Commonwealth of Massachusetts, State of Michigan, State of Minnesota, State of Nevada, State

of Pennsylvania, State of Rhode Island, State of Vermont, Commonwealth of Virginia, State of

JURISDICTION AND VENUE

9. Declaratory and injunctive relief is sought as authorized in 28 U.S.C. §§ 2201 and

continuing to occur within the Southern District of New York.

to pursue this action under 29 Del. Code § 2504.

15. Plaintiff the District of Columbia is a municipal corporation empowered to sue

protect the public interest. D.C. Code § 1-301.81.

§ 6; Haw. Rev. Stat. Chapter 28; Haw. Rev. Stat. § 26-7.

19. Plaintiff the Commonwealth of Massachusetts, represented by and through its

14.29, to pursue this action.

See N.J. Stat. Ann. § 52:17A-4(e), (g).

his independent constitutional, statutory, and common-law authority.

180.210, and 180.220.

27. Plaintiff the Commonwealth of Pennsylvania is a sovereign state of the United

authority under 71 Pa. Stat. § 732-204.

Stat. Ann. tit. 3, §§ 152 and 157.

interested.” Va. Code Ann. § 2.2-507(A).

federal court on matters of public concern.

the laws of the State of Rhode Island.

36. Plaintiff the City of Philadelphia is a municipal corporation organized pursuant to

and the City’s Home Rule Charter.

laws of the State of Arizona.

38. Plaintiff the City of Pittsburgh is a municipal corporation organized pursuant to

and the City’s Home Rule Charter.

39. Plaintiff the City of Providence is a municipal corporation organized pursuant to

the laws of the State of Rhode Island.

of the State of California, and is a charter city and county.

elected City Attorney, Peter S. Holmes.

45. Plaintiff Monterey County, California is a political subdivision of the State of

and conduct are enjoined.

47. Defendant Donald J. Trump is the President of the United States. He is

is sued in his official capacity.

49. Defendant Wilbur L. Ross, Jr. is the Secretary of Commerce. He is responsible

Representatives in Congress. 13 U.S.C. § 141. He is sued in his official capacity.

and administering the decennial census.

I. Constitutional and statutory background.

A. The Constitution requires apportioning Members of the House of

XIV, § 2; see id. art. I, § 2, cl. 3.

Electoral College. Id. art. II, § 1, cl. 2; see also 3 U.S.C. § 3.

54. To apportion Representatives among the States properly (and ultimately to

the total population every ten years, id. art. I, § 2, cl. 3.

Commerce, 351 F. Supp. 3d 502, 514 (S.D.N.Y. 2019).

living in each State, regardless of their citizenship or immigration status.