Common Cause Files Reply Brief Seeking Summary Judgment Against Trump’s Directive to Exclude Undocumented Immigrants in Census Apportionment Calculations  

On Wednesday, Common Cause filed its reply brief in support of its motion for summary judgment in its challenge to President Trump’s memorandum requiring the exclusion of undocumented immigrants from the congressional apportionment base following the 2020 Census. The brief, filed in the U.S. District Court for the District of Columbia in Common Cause v. Trump, also urges the court to expedite proceedings so that a final judgment and appeal to the U.S. Supreme Court can be completed before January  2021, when the President is scheduled to send apportionment numbers to Congress.  

In a separate filing today, additional municipalities joined the challenge as plaintiffs, including El Paso, Texas; Clarkston, Georgia; and Santa Monica, South Pasadena, and El Monte Union High School District in California. 

Common Cause v. Trump seeks a declaratory judgment and injunctive relief against the President, as well as the Department of Commerce, Secretary of Commerce Wilbur Ross, the Census Bureau, and the Director of the Census Bureau, Steven Dillingham. The five-count complaint alleges violations of several different Constitutional protections and federal statutory requirements related to the census count and the apportionment of congressional districts.  

“President Trump’s memorandum is an attempt to strip cities, states, and residents of the congressional representation they are entitled to under our Constitution,” said Suzanne Almeida, Common Cause Redistricting and Representation Counsel. “This brazen and unconstitutional directive attempts to exclude millions of families from the census count and would deprive states and municipalities across the country of vital resources to fund everything from schools and fire departments to disaster relief and COVID-19 recovery.” 

The President’s memorandum “is part of a plan intended to shift political power from Latinos to ‘non-Hispanic Whites.’”  

“This attempt to skew the census for racial advantage and partisan political gain is part of a longstanding pattern of attempts by President Trump to abuse the powers of his office for his own benefit,” said Karen Hobert Flynn, President of Common Cause. “But the directive ignores the United States Constitution which is absolutely clear in its requirement that all persons must be counted in the census and subsequently in the reapportionment of Congressional seats.”  

The complaint charges the Administration with violating the U.S. Constitution – specifically, Article I, Section 2 of the Constitution as amended by Section 2 of the Fourteenth Amendment, and related statutes requiring that all “persons in each state” be counted in the census and included in the basis for reapportioning congressional districts. Further, the complaint outlines the Administration’s violations of the Equal Protection guarantees of the Fifth and Fourteenth Amendments by diluting a voter’s vote based on where they live and by taking an adverse action against residents on the basis of race, ethnicity, and national origin. 

A hearing in the case is scheduled for September 29, 2020 at 9:30 a.m. EDT in the U.S. District Court for the District of Columbia and can be viewed here. 

In addition to Common Cause, the original plaintiffs included the cities of Atlanta, Georgia; Dayton, Ohio; Paterson, New Jersey; and Portland, Oregon; the Partnership for the Advancement of New Americans; the Center for Civic Policy; Masa; New Jersey Citizen Action; New Mexico Asian Family Center; New Mexico Comunidades en Acción y de Fé; and 23 individual Latino, African American, Asian American and other voters from California, Florida, New Jersey, New York, and Texas. 

Plaintiffs are represented by Emmet J. Bondurant of Bondurant Mixson & Elmore LLP; Gregory L. Diskant, Daniel S. Ruzumna, Aron Fischer, and Jonah M. Knobler of Patterson Belknap Webb & Tyler LLP; and Michael B. Kimberly of McDermott Will & Emery. 

To read the reply brief, click here. 

To read the amended complaint adding additional municipalities as plaintiffs, click here. 

For more information on the case, click here.