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NAACP’s suit over 2020 census resurrected

Where the NAACP’s Enumeration Clause challenge to the “methods and means” to be used in the 2020 census was ripe by the time it sought leave to reintroduce the claims in February 2019, the district court’s contrary conclusion was legal error. However, the court did not err in dismissing claims under the Administrative Procedure Act, or APA, because they did not meet the jurisdictional requirement of “final agency action.”

Background

The Enumeration Clause of the Constitution requires that Congress conduct an “actual Enumeration” of the population every 10 years, the results of which are used for the apportionment of Congressional representatives and the allocation of federal funding. But, despite its paramount importance in our constitutional scheme, it is widely acknowledged that each decennial census inevitably results in an “undercount” of the American public.

This undercount is not spread uniformly across the population. The census bureau long has recognized that the undercount affects African Americans and other “racial and ethnic minority groups to a greater extent than it does whites.” And, because the results of the census directly impact both political representation and the allocation of federal funding, this “differential undercount” has had the effect of disproportionately reducing the amount of political representation and funding that undercounted communities receive.

This appeal addresses a challenge to the “methods and means” that the census bureau has adopted for the 2020 census, and the contention that the 2020 census will produce an even greater differential undercount. The plaintiffs’ claims, brought under both the Enumeration Clause and the APA, were dismissed by the district court.

APA claims

We begin by considering the APA claims, which the district court dismissed after concluding that the face of the complaint failed to identify any “agency action” reviewable under the Act. According to the plaintiffs, the “design choices” at issue are discrete, because those choices can be analyzed “without reference” to one another. The plaintiffs also assert that the challenged decisions are final, because each will lead directly to a differential undercount. Finally, the plaintiffs contend that because they have presented each APA claim exclusively as a request to “set aside agency action” under Section 706(2), it is not necessary to show that any action of the census bureau is “required by law.”

After considering these arguments, we conclude that the district court did not err in dismissing the APA claims, because they do not meet the jurisdictional requirement of “final agency action” within the meaning of the APA.

Enumeration Clause challenge

We turn now to consider the district court’s decision dismissing as unripe the plaintiffs’ Enumeration Clause challenge.

We agree with the plaintiffs that the district court erred in its ripeness analysis. First, we hold that the plaintiffs’ claims are “fit” for review. We hold that, at the latest, this point occurred when the defendants announced that the Operational Plan was final and the plaintiffs sought leave to file an amended complaint. Once announced as part of the “final design” for the census, the procedures challenged by the plaintiffs no longer credibly could be described as “uncertain.” We also hold that delayed adjudication would result in hardship to the plaintiffs.

For these reasons, we hold that the plaintiffs’ Enumeration Clause challenge to the “methods and means” to be used in the 2020 census was ripe by the time the plaintiffs sought leave to reintroduce those claims in February 2019, and that the district court’s contrary conclusion was legal error. And, because a district court necessarily abuses its discretion when its ruling is “based on an erroneous view of the law,” we further hold that the district court abused its discretion in denying on ripeness grounds the plaintiffs’ request to file an amended complaint setting forth their Enumeration Clause claims.

Affirmed in part, reversed in part and remanded,

Concurring opinion

Gregory, C.J., concurring:

If Congress is in violation of the Enumeration Clause’s mandate, it cannot take refuge behind the fig leaf of deference to administrative procedure. Nothing is more existential to the preservation of the “Republic” than requiring an “actual Enumeration” without “partiality or oppression.”

National Association for the Advancement of Colored People, Appeal No. 19-1863, Dec. 19, 2019. 4th Cir. (Keenan), from DMD at Greenbelt (Grimm). Rachel Brown and Jessica Ring Amunson for Appellants, Thais-Lyn Trayer for Appellees. VLW 019-2-303. 20 pp.

VLW 019-2-303