SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES - - - - - - - - - - - - - - - - - DEPARTMENT OF COMMERCE, ET AL., Petitioners, v. ) ) ) No. 18-966 NEW YORK, ET AL., Respondents. ) ) - - - - - - - - - - - - - - - - - - Pages: 1 through 93 Place: Washington, D.C. Date: April 23, 2019 HERITAGE REPORTING CORPORATION Official Reporters 1220 L Street, N.W., Suite 206 Washington, D.C. 20005 (202) 628-4888 www.hrccourtreporters.com Official - Subject to Final Review 1 1 IN THE SUPREME COURT OF THE UNITED STATES 2 - - - - - - - - - - - - - - - - - - 3 DEPARTMENT OF COMMERCE, ET AL., 4 5 6 7 8 9 10 Petitioners, v. ) ) ) No. 18-966 NEW YORK, ET AL., Respondents. ) ) - - - - - - - - - - - - - - - - - Washington, D.C. Tuesday, April 23, 2019 11 12 The above-entitled matter came on for 13 oral argument before the Supreme Court of the 14 United States at 10:06 a.m. 15 16 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation Official - Subject to Final Review 2 1 APPEARANCES: 2 3 GEN. NOEL J. FRANCISCO, Solicitor General, 4 Department of Justice, Washington, D.C.; 5 on behalf of the Petitioners. 6 BARBARA D. UNDERWOOD, Solicitor General, 7 New York, New York; 8 on behalf of Respondents New York, et al. 9 DALE E. HO, ESQ., New York, New York; 10 on behalf of Respondents New York Immigration 11 Coalition, et al. 12 DOUGLAS N. LETTER, ESQ., Washington, D.C.; on behalf 13 of the United States House of Representatives, 14 as amicus curiae, in support of the Respondents. 15 16 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation Official - Subject to Final Review 3 1 C O N T E N T S 2 ORAL ARGUMENT OF: 3 GEN. NOEL J. FRANCISCO, ESQ. 4 On behalf of the Petitioners 5 ORAL ARGUMENT OF: 6 BARBARA D. UNDERWOOD, ESQ. 7 On behalf of Respondents New York, 8 et al. 9 10 PAGE: 43 ORAL ARGUMENT OF: DALE E. HO, ESQ. 11 On behalf of Respondents New York 12 Immigration Coalition, et al. 13 ORAL ARGUMENT OF: 14 DOUGLAS N. LETTER, ESQ. 15 On behalf of the United States 16 House of Representatives, as amicus 17 curiae, in support of the Respondents 18 REBUTTAL ARGUMENT OF: 19 GEN. NOEL J. FRANCISCO, ESQ. 20 4 On behalf of the Petitioners 21 22 23 24 25 Heritage Reporting Corporation 65 77 87 Official - Subject to Final Review 4 1 P R O C E E D I N G S 2 3 (10:06 a.m.) CHIEF JUSTICE ROBERTS: We'll hear 4 argument this morning in Case 18-966, the 5 Department of Commerce versus New York. 6 7 8 9 10 General Francisco. ORAL ARGUMENT OF GEN. NOEL J. FRANCISCO ON BEHALF OF THE PETITIONERS GENERAL FRANCISCO: Mr. Chief Justice, and may it please the Court: 11 In March 2018, Secretary Ross 12 reinstated a citizenship question that has been 13 asked as part of the census in one form or 14 another for nearly 200 years. 15 court's invalidation -- The district 16 JUSTICE SOTOMAYOR: I'm sorry. 17 GENERAL FRANCISCO: -- of that 18 19 decision was wrong for -JUSTICE SOTOMAYOR: I'm sorry, it's 20 not been a part of the survey, which is where 21 he reinstated it, since 1950. 22 years, every Secretary of the Department of 23 Commerce, every statistician, including this 24 Secretary's statistician, recommended against 25 adding the question. And for 65 So it may be that 200 Heritage Reporting Corporation Official - Subject to Final Review 5 1 years of asking a citizenship question in other 2 forms may be true, but not on the short survey. 3 That's what's at issue here. 4 GENERAL FRANCISCO: Well, but, Your 5 Honor, it has been part of the census for the 6 better part of 200 years, initially as part of 7 the overall census itself -- 8 9 10 11 12 JUSTICE SOTOMAYOR: But don't we put GENERAL FRANCISCO: -- that went to -- all individuals. JUSTICE SOTOMAYOR: -- don't we ask 13 the question in context? 14 years, everybody said don't add it? 15 And for 65-odd-plus GENERAL FRANCISCO: No, Your Honor, 16 because, in fact, it was included in the 17 long-form census until the year 2000. 18 JUSTICE SOTOMAYOR: 19 different -- that's the whole issue. 20 have been -- it's still included -- or it could 21 have been included in the ACS form, which is 22 still being done. 23 first, third, and fifth year. 24 25 That is a It could And that's being done every GENERAL FRANCISCO: Yes, Your Honor, but it has been part of the census in one form Heritage Reporting Corporation Official - Subject to Final Review 6 1 or another for a very long period of time. 2 has a long pedigree. 3 4 5 JUSTICE SOTOMAYOR: It So the question now before us is -GENERAL FRANCISCO: The question, 6 therefore, is two things. First, we think that 7 the Respondents' claims are not justiciable 8 because their injuries aren't fairly 9 attributable to the government or subject to 10 APA review. 11 well within his discretion when he determined 12 that reinstating the citizenship question would 13 provide the best evidence of citizenship. 14 And, secondly, the Secretary acted JUSTICE GINSBURG: Can we just go back 15 a bit to your opening? 16 question dropped in 1960 and remained off for 17 all the decades after that? 18 reason for dropping it? 19 Why was the citizenship GENERAL FRANCISCO: What was the Your Honor, in 20 1960, it didn't appear in anything, and it was 21 moved on to the American Community Survey. 22 JUSTICE GINSBURG: 23 GENERAL FRANCISCO: But -- but why -That was part of 24 an overall movement of most of the demographic 25 -- I'm sorry, onto the long form census, not Heritage Reporting Corporation Official - Subject to Final Review 7 1 the American Community Survey. 2 part of a larger process that moved a large 3 number of demographic questions off of the 4 short form and onto the long form. 5 And that was We no longer have a long form, so then 6 the question is do you reinstate the long form 7 or do you, in fact, move it back under the 8 short-form census. 9 10 JUSTICE GINSBURG: didn't -- 11 12 13 14 15 But didn't -- GENERAL FRANCISCO: It was eminently -JUSTICE GINSBURG: -- didn't the Census Bureau give a reason why it was dropped? GENERAL FRANCISCO: Well, they 16 generally wanted to move all of the demographic 17 questions onto the long form. 18 have a long form. 19 the American Community Survey are well known. 20 So you basically -- 21 We no longer And the problems with using JUSTICE GINSBURG: But there was 22 nothing -- there was nothing in 1960 to the 23 effect that the Census Bureau found that 24 putting it on the short form would depress the 25 count of non-citizens? Nothing like that? Heritage Reporting Corporation Official - Subject to Final Review 8 1 GENERAL FRANCISCO: Well -- well, 2 sure, Your Honor, but that's because they 3 thought that, along with all of the other 4 demographic questions in the census, had an 5 overall impact of -- on -- on -- on overall 6 census accuracy. 7 And that underscores why we don't 8 think this is really subject to judicial 9 review, because really what you're saying is 10 that Congress -- courts would have to review 11 every question on the long form to determine if 12 the informational value of the question 13 outweighed the impact on census accuracy, 14 because, at the end of the day, if you add any 15 particular question onto the census, you're 16 always trading off information and accuracy. 17 And 141(a) doesn't provide courts with 18 a basis for evaluating that determination. So 19 that's why we think this isn't subject to APA 20 review at all. 21 Respondents don't have standing here because 22 they're injured if and only if, first, you have 23 third-party action; secondly, you have 24 third-party action that's illegal; and, third, 25 that third-party action is based on speculation But we also think that the Heritage Reporting Corporation Official - Subject to Final Review 9 1 that the government will itself violate the 2 law. 3 CHIEF JUSTICE ROBERTS: On the -- on 4 the illegality, is -- is that a -- a predictive 5 factor? 6 have often said, do not assume illegal behavior 7 in establishing standing, but is that simply 8 predictive? 9 are going to engage on a regular basis in In other words, do we, as our cases In other words, we doubt people 10 illegal behavior, and, therefore, we don't 11 think their injury is -- is tangible or likely, 12 or is there something special about the fact 13 that it's illegal activity? 14 GENERAL FRANCISCO: Well, I think, 15 Your Honor, in -- in the Court's past cases, it 16 has often been used as a predictive factor, but 17 I also think that when you put it all together, 18 it breaks the chain of causation for Article 19 III causation purposes. 20 CHIEF JUSTICE ROBERTS: I mean, it is 21 true that if people go 60 miles an hour in a 22 55-mile-an-hour zone, that's unlawful. 23 wouldn't say that they're not going to do that 24 in forming public policy -- 25 GENERAL FRANCISCO: And -- Heritage Reporting Corporation But you Official - Subject to Final Review 10 1 2 3 CHIEF JUSTICE ROBERTS: -- or considering standing. GENERAL FRANCISCO: -- I agree, Your 4 Honor, and that's not our argument here. I 5 think that Clapper is a good analogy. 6 Clapper, it was quite clear that the plaintiffs 7 in that case suffered an injury in fact, 8 because they declined to use their cell phones 9 to communicate with their clients and their In 10 clients declined to use their cell phones to 11 communicate with them out of a fear that their 12 phone calls would be intercepted. 13 that there was an injury in fact. 14 No question But what the Court held was that that 15 injury wasn't fairly attributable to the 16 government because it was caused by the 17 plaintiffs' fear -- 18 19 20 21 22 23 JUSTICE SOTOMAYOR: I -- I -- I'm sorry, you're talking -GENERAL FRANCISCO: -- that the government would intercept their calls. JUSTICE SOTOMAYOR: You're talking proximate cause, which we've never used. 24 GENERAL FRANCISCO: No, Your Honor. 25 JUSTICE SOTOMAYOR: We've used Heritage Reporting Corporation Official - Subject to Final Review 11 1 determinate or coercive effect. 2 one of the reasons we found the stores, not the 3 states, to be injured is because consumers fail 4 to pay taxes, an illegality under the law. 5 we said that's why the states were being 6 harmed. 7 In Wayfair, And In NAACP versus Alabama, we held the 8 NAACP had standing, even though it was their 9 members who would be injured by other people, 10 an illegality, harassment, but as the just -- 11 as Chief Justice Roberts said, it's 12 predictable. 13 respond less -- There's no doubt that people will 14 GENERAL FRANCISCO: Uh-huh. 15 JUSTICE SOTOMAYOR: -- because of the 16 census. 17 study. 18 incident where he walked into a home, started 19 asking citizenship, and the person stopped and 20 left his home, leaving the census surveyor 21 sitting there. 22 That has been proven in study after One census surveyor described an So, if you're talking about 23 prediction, this is about 100 percent that 24 people will answer less, so -- but I don't know 25 that it's prediction. It's an action by the Heritage Reporting Corporation Official - Subject to Final Review 12 1 government will be a -- will be a cause of 2 this, not proximate necessarily, but that cause 3 will cause harm. 4 GENERAL FRANCISCO: Right, two 5 responses, Your Honor. First, we're not 6 talking about proximate cause. 7 about an analysis that was similar to what this 8 Court used in the Clapper case, where the 9 Clappers said that even though there was injury We're talking 10 in fact, even though the government's actions 11 were in a very real sense a but-for cause of 12 that injury in fact, it wasn't fair to 13 attribute that to the government because it was 14 based on the plaintiffs' speculation that the 15 government would intercept their telephone 16 calls. 17 JUSTICE SOTOMAYOR: 18 CHIEF JUSTICE ROBERTS: 19 JUSTICE SOTOMAYOR: 20 21 But this is not -You -- -- the plaintiff acting; this is third parties acting. GENERAL FRANCISCO: Yes, and that 22 makes it, we think, even worse because the 23 Court's cases have generally said you don't 24 rely on third-party standing. 25 CHIEF JUSTICE ROBERTS: But -You -- you Heritage Reporting Corporation Official - Subject to Final Review 13 1 said you had two responses? 2 GENERAL FRANCISCO: Yeah. The second 3 is that on NAACP against Alabama, that was a 4 case where the NAACP was being directly 5 regulated by the statute that they were 6 challenging. 7 their private membership lists, and that was 8 their injury. 9 between them and the disclosure of their 10 They were forced to disclose There was nobody that stood in private injury -- private membership list. 11 But turning to the agency 12 reviewability argument, there really is nothing 13 in 141(a) that provides courts with a basis to 14 review this decision. 15 similar to what the Court addressed in Webster. 16 The language is quite Every -- the addition of any 17 particular demographic question is always going 18 to be a tradeoff between information and 19 accuracy. 20 look to the 2000 long form census that had 21 highly detailed questions about not just 22 citizenship but things like your commuting 23 time, how many bedrooms you had in your house, 24 whether you suffered from certain health 25 conditions. And I'd -- I'd -- I'd urge you to Heritage Reporting Corporation Official - Subject to Final Review 14 1 Under Respondents' position, courts 2 would have to review each one of those 3 questions to determine whether the 4 informational value of that question outweighed 5 any potential impact -- 6 JUSTICE BREYER: 7 GENERAL FRANCISCO: 8 On the main form --- on census accuracy. 9 JUSTICE BREYER: -- on the main form 10 -- on the main form, suppose the Secretary puts 11 in a question about sexual orientation. 12 Suppose he puts a question in about arrest 13 record. 14 whole survey in French. Suppose he says, I'm going to have the 15 GENERAL FRANCISCO: 16 JUSTICE BREYER: 17 Uh-huh. In other words, we have no role to play no matter how extreme? 18 GENERAL FRANCISCO: Your Honor, you 19 certainly do have a role to play, and I think 20 -- 21 22 23 24 25 JUSTICE BREYER: All right. Well, then that's the question. GENERAL FRANCISCO: -- and I think your examples -JUSTICE BREYER: That's the question. Heritage Reporting Corporation Official - Subject to Final Review 15 1 GENERAL FRANCISCO: 2 JUSTICE BREYER: Yeah. That's the question. 3 And in this case, there's a statute, and the 4 statute says that the Secretary -- at least on 5 this form, the main form, he shall use 6 administrative records, unless -- it says to 7 the maximum extent possible. 8 questions. 9 they want to keep it short. 10 GENERAL FRANCISCO: 11 JUSTICE BREYER: Don't ask direct Use administrative records, because Right. To the maximum extent 12 possible. 13 questions in what I think is the heart of this 14 case. 15 So I have two rather technical It's a technical case. All right. The first question is the 16 Secretary, I gather from the record -- and 17 we've looked at it, my office, pretty carefully 18 -- is told by the Census Bureau in three 19 studies that if you ask this question on the 20 regular form, you will get back fewer answers. 21 And they extrapolated to do that from 22 the other surveys and so forth, and those 23 extrapolations, you know, holding for 24 everything constant, showed that the 25 non-citizens often didn't say they were Heritage Reporting Corporation Official - Subject to Final Review 16 1 non-citizens. 2 GENERAL FRANCISCO: 3 JUSTICE BREYER: 4 Uh-huh. And some didn't return it at all. 5 Now I haven't seen any evidence to the 6 contrary. So I'm asking you where the evidence 7 is on that. 8 GENERAL FRANCISCO: 9 JUSTICE BREYER: Sure. And as to the second, 10 same question, the second is that several 11 surveys, including Dr. Abowd, told the 12 Secretary: 13 question to the census, the short form, the 14 direct form, you will discover that even the 15 information you want about citizenship is worse 16 than if you just look at the administrative 17 record. Mr. Secretary, if you add the Now how can that be? 18 GENERAL FRANCISCO: 19 JUSTICE BREYER: Sure. Well, A, they say 13 20 million people, it'll be a wash because you 21 won't get information either way. 22 return it and you don't have it over on the 23 administrative part. 24 25 They won't But, as to 22 million, which you highlight in your brief -- Heritage Reporting Corporation Official - Subject to Final Review 17 1 GENERAL FRANCISCO: 2 JUSTICE BREYER: Yeah. -- what about them? 3 And as to them, what Dr. Abowd says he says, 4 and I saw it in the record, he says, as to 5 those 22 million, I'll tell you what, you just 6 look to the census returns and you're going to 7 find it not that accurate because some are not 8 going to tell the truth. 9 10 GENERAL FRANCISCO: JUSTICE BREYER: Right. So go look at the 11 administrative returns, and they won't be 12 there, but we'll model them. 13 Now the question is, which is more 14 accurate as to citizenship? 15 GENERAL FRANCISCO: 16 JUSTICE BREYER: Sure. The models over here 17 on the administrative part or the answer to the 18 questions on the census part? 19 And here is what Dr. Abowd says: 20 million, he's asked, if you follow your 21 practice, you'd use a survey response, not 22 model it; is that right? 23 That's right. 24 And in your opinion, that would be 25 less accurate than if you just went with Heritage Reporting Corporation 22 Official - Subject to Final Review 18 1 modeling over on the administrative part? 2 That's correct. 3 And the conclusion of the Census 4 Bureau remains that adding the question over 5 here, even if you use the administrative part 6 too, produces worse citizen -- worse data on 7 citizenship than just using the administrative 8 data alone? 9 GENERAL FRANCISCO: 10 11 That's the question. JUSTICE BREYER: expert: 12 Yep. Answer from the "That's correct." So I read that, and, you know, the 13 judges below have listed 14 other examples or 14 40 other examples of many other examples and -- 15 and -- but that's the most direct. 16 17 So where in the decision memo did the Secretary address that problem? 18 19 20 21 22 GENERAL FRANCISCO: So, sure, Your Honor. JUSTICE BREYER: Both problems. There are two problems. GENERAL FRANCISCO: Yes, yes. And I'd 23 like to address that evidentiary issue first 24 and then I would like to come back to your 25 question about Section 6(c) of the statute as Heritage Reporting Corporation Official - Subject to Final Review 19 1 well. 2 If you look at the Joint Appendix page 3 148, the -- the Census Bureau staff 4 specifically told the Secretary -- and here I'm 5 quoting from it -- that it "cannot quantify the 6 relative magnitude of the errors across 7 alternatives" -- and he's talking about 8 Alternatives C and D -- "at this time." 9 So what he was saying was that I don't 10 know if the response error from asking the 11 question is going to be more or less than the 12 prediction error if I -- 13 JUSTICE BREYER: 14 you said. No, he said just what He said, I cannot quantify it. 15 GENERAL FRANCISCO: 16 JUSTICE BREYER: Sure. And that means he 17 can't put scientific numbers. 18 said that they wanted two years to test it, but 19 they can't quantify it. 20 Of course, they But we do have three studies, and 21 those studies look at what happened when you 22 asked this question before, and what happened 23 when you asked this question before -- 24 GENERAL FRANCISCO: 25 JUSTICE BREYER: Right. -- is the response Heritage Reporting Corporation Official - Subject to Final Review 20 1 rate fell. 2 GENERAL FRANCISCO: And so, if I could 3 complete my answer, what the Bureau staff told 4 him was that they didn't know which one would 5 be better or worse. 6 So what the Secretary -- 7 JUSTICE SOTOMAYOR: 8 JUSTICE BREYER: 9 that? 10 I'm sorry. Where does it say Where does it say that? CHIEF JUSTICE ROBERTS: Maybe you 11 could, if you don't mind, maybe you could 12 complete your answer. 13 GENERAL FRANCISCO: Sure. That is 14 specifically, Your Honor, at page 148 of the 15 Joint Appendix, where it specifically says and 16 explains that it cannot quantify the relative 17 magnitude of the errors across the 18 alternatives, Alternatives C and D, at this 19 time because it didn't know if the response 20 errors from asking the question would be more 21 or less than the prediction errors from the 22 model. 23 24 25 So what the Secretary knew was two basic things -JUSTICE SOTOMAYOR: I'm sorry. Heritage Reporting Corporation They Official - Subject to Final Review 21 1 -- they have prediction models. 2 multiple times, at least three, if not more, 3 that Alternative D, which was the Secretary's 4 alternative, and their Alternative C, so 5 everybody's clear C was simply to use 6 administrative records, D was the Secretary's 7 idea of adding the question to the survey plus 8 administrative records. 9 They say And on the prediction models, which is 10 what scientists can do, each and every time 11 they said D would be less accurate than C. 12 Now you're asking -- 13 GENERAL FRANCISCO: Except for the one 14 time where it mattered, Your Honor, in the key 15 differences -- 16 JUSTICE SOTOMAYOR: But comparative -- 17 GENERAL FRANCISCO: -- memo, where 18 they specifically said that they did not know 19 if C was better than D. 20 And so what the Secretary knew -- 21 JUSTICE SOTOMAYOR: 22 23 24 25 No, no, no, no, that's not what he said. GENERAL FRANCISCO: That is exactly what he said. JUSTICE SOTOMAYOR: He said you can't Heritage Reporting Corporation Official - Subject to Final Review 22 1 -- you're -- the words "comparative errors" 2 have a different meaning than you're giving it. 3 Comparative errors are I'm comparing this type 4 of error to that type of error and what they 5 compare each other to. 6 scientific certainty. 7 8 You can't do that to a But you can have predictive models, which is what they did, and they -- 9 GENERAL FRANCISCO: Right. 10 JUSTICE SOTOMAYOR: -- showed you, 11 time and again they told you, you add the 12 survey question, it's going to be less accurate 13 than just relying on administrative records. 14 GENERAL FRANCISCO: Your Honor, I -- 15 JUSTICE SOTOMAYOR: So how do you -- 16 how do you take or pluck out of what they say 17 in one sentence, if you're the Secretary, and 18 rely on that one sentence and ignore the wealth 19 of statistics, graphs, testimony, proof, 20 control studies of how -- how these response 21 rates came about and decide that that one 22 sentence is enough to justify ignoring 23 everything else? 24 25 GENERAL FRANCISCO: Because, Your Honor, I respectfully disagree with your Heritage Reporting Corporation Official - Subject to Final Review 23 1 reading of the administrative record. 2 If you read through the key 3 differences memo, what the Bureau staff is 4 telling to the Secretary -- and, look, there's 5 no question that the Bureau staff preferred not 6 to have this question on the census -- but what 7 they were telling the Secretary was that they 8 couldn't tell which model would be more or less 9 accurate. 10 But they did give him specific information. 11 JUSTICE KAGAN: 12 GENERAL FRANCISCO: 13 But, General -They told him that -- 14 JUSTICE KAGAN: Please finish. 15 GENERAL FRANCISCO: They told him that 16 if he actually asked the question for 30 -- for 17 22.2 million people for whom no administrative 18 records existed, he would have got actual 19 answers at 98 percent accuracy. 20 And that the alternative, their 21 preferred alternative, was to use a statistical 22 model to estimate citizenship, not just for the 23 22.2 million, but for 35 million, but they had 24 not yet constructed that model and didn't know 25 what the error rate in that model would be. Heritage Reporting Corporation Official - Subject to Final Review 24 1 JUSTICE KAGAN: But I -- I -- 2 GENERAL FRANCISCO: 3 JUSTICE KAGAN: And so the -- -- I think, General, I 4 mean, 98 percent sounds awfully high, but it's 5 kind of irrelevant too. 6 The question is whether, if you used 7 the model, it would be greater than 98 percent. 8 It would be 99.5 percent. 9 GENERAL FRANCISCO: 10 JUSTICE KAGAN: Right. Because then the 11 Secretary would have no basis for saying that 12 you should use the question rather than the 13 model. 14 And as to that, as I think my 15 colleagues are suggesting, there is a bottom 16 line conclusion from the Census Bureau, and the 17 bottom line conclusion is that Alternative D, 18 which is the proposal that the Secretary 19 eventually took, would still have all the 20 negative cost and quality implications of 21 Alternative B, which was simply adding the 22 question alone, and would result in poorer 23 quality citizenship data than Alternative C, 24 which is just using the administrative records 25 plus the modeling. Heritage Reporting Corporation Official - Subject to Final Review 25 1 So there is a bottom line conclusion 2 from the Census Bureau. And it seems as though 3 what the Secretary needs is some -- I mean, a 4 Secretary can deviate -- 5 GENERAL FRANCISCO: 6 JUSTICE KAGAN: Uh-huh. -- from his experts' 7 recommendations and from his experts' bottom 8 line conclusions. 9 GENERAL FRANCISCO: 10 JUSTICE KAGAN: Right. But the Secretary 11 needs reasons to do that, and I searched the 12 record and I don't see any reason. 13 GENERAL FRANCISCO: Sure. And, Your 14 Honor, so I want to just finish what I was 15 saying instantly before because I think it -- 16 it responds to your question, and then I'd like 17 to expand directly in response to your 18 question. 19 What the Secretary concluded was, in 20 the face of uncertainty, he'd rather go with 21 the bird in a hand and ask the question at 22 98 percent accuracy than an unknown and 23 untested statistical model. 24 all, the same preference that the Enumeration 25 Clause itself makes, a prefer -- preference for And that's, after Heritage Reporting Corporation Official - Subject to Final Review 26 1 actual counting over estimation, because actual 2 counting is less efficient. 3 JUSTICE SOTOMAYOR: 4 JUSTICE KAGAN: Well, if I can just 5 add to the question, and -- 6 GENERAL FRANCISCO: 7 8 9 But not census -- But to go -- to go to your question -- yes. JUSTICE KAGAN: -- and let me just add to it a bit because you said, you know, an 10 unknown and untested statistical model, but 11 here are his experts in the Census Bureau 12 saying we are confident that we can produce a 13 statistical model that will produce more 14 accurate bottom line results, and -- and, 15 again, this bottom line conclusion is the same. 16 They know what kind of statistical 17 models they can build. 18 line conclusion. 19 the Secretary gives as to why he rejects that? 20 And this is the bottom And where is the reason that GENERAL FRANCISCO: So there are a 21 couple of reasons, Your Honor. First of all, 22 although they had a high confidence that they 23 could create a good statistical model, they 24 were not able to tell him that they thought 25 that that model would be any better or worse an Heritage Reporting Corporation Official - Subject to Final Review 27 1 estimation. 2 would -- it would beat that 98 percent number. 3 4 They never were able to say that So, in the face of that uncertainty, he reasonably chose -- 5 JUSTICE KAGAN: I think what I read 6 you is them saying that they could beat the 7 98 percent number. 8 9 GENERAL FRANCISCO: No, Your Honor, I don't think that's what they're saying there. 10 I think what they're saying there is that if 11 you ask the citizenship question, it will make 12 the model a little bit less accurate because 13 you're going to have fewer people for whom 14 there are administrative records, but you 15 actually have to use that model for a much 16 smaller number of people because you have 17 actual answers from 22.2 million at 98 percent 18 accuracy. 19 So that's what they're saying. But 20 what they couldn't come down with a conclusion 21 on is whether it would be more or less accurate 22 to ask the question -- 23 24 25 JUSTICE BREYER: All right. When you answer this question -GENERAL FRANCISCO: -- or use the Heritage Reporting Corporation Official - Subject to Final Review 28 1 model. 2 JUSTICE KAGAN: 3 JUSTICE BREYER: Would you answer this 4 question? 5 question, to write down the pages. 6 going to, you know, resolve this right now. 7 Wait. So can I just ask -- I am trying, go back to my I'm not So, when Justice Kagan asked the 8 question or I do, you've mentioned page 148. 9 Insofar in answer to her question or to mine, 10 if you could give me a few things to read to 11 show that he did consider it, to show that he 12 did give a reason for rejecting it, that would 13 be helpful to me. 14 Sorry. Go back to you. GENERAL FRANCISCO: So, Your Honor, if 15 you look at Secretary Ross's decision memo, the 16 pre- -- the decision memo in the Petitioners' 17 appendix, I would look to a couple of things. 18 First of all, I would look to his 19 discussion on pages 555a with the problems with 20 administrative records. 21 evolving its use of administrative records, and 22 the bureau does not yet have complete 23 administrative records data set for the entire 24 population. 25 The bureau is still And that points out why he preferred Heritage Reporting Corporation Official - Subject to Final Review 29 1 asking the question and getting actual answers 2 from 22.2 million people at 98 percent 3 accuracy, because you simply didn't have 4 administrative records for 35 million people, 5 and the bureau had not yet figured out how to 6 do that estimation. 7 He then goes on to say on that same 8 page, more than 10 percent of the American 9 population, some 25 million voting-age people, 10 would need to have their citizen age imputed by 11 the Census Bureau. 12 that he'd rather go with actual counting than 13 imputation. 14 And so he was making clear And he pointed out that by proceeding 15 with his preferred course -- this is at page 16 556a of the Petitioners' appendix -- this may 17 eliminate the need for the Census Bureau to 18 have to impute an answer for millions of 19 people, specifically about 22.2 million people 20 for whom the bureau -- 21 JUSTICE KAGAN: 22 GENERAL FRANCISCO: 23 24 25 But --- told him he would get actual answers at 98 actual accuracy. JUSTICE KAGAN: If I may say, General, when you think about those statements, I mean, Heritage Reporting Corporation Official - Subject to Final Review 30 1 it's just conclusory. 2 this would eliminate the -- the -- the need for 3 modeling because we could ask a question. 4 It's just like, well, But the question is, why is asking a 5 question better when you know that asking a 6 question is going to result in lots of 7 non-responses and in lots of false reporting? 8 And so you can't just go back to I'd 9 rather ask a question. You have to say why 10 you'd rather ask a question and what benefits 11 it has to ask a question. 12 GENERAL FRANCISCO: 13 JUSTICE KAGAN: Right. And if I may say -- 14 I'll just finish here, General -- I mean, a lot 15 of your argument -- your briefs are extremely 16 well done. 17 GENERAL FRANCISCO: 18 JUSTICE KAGAN: Thank you. But a lot of your 19 argument just do not appear in the Secretary's 20 decision memo. 21 lawyers can come up with 60 pages of 22 explanation for a decision, that's all post hoc 23 rationalization. 24 25 And -- and the fact that SG The question is, what did the Secretary say? Where did he say it? Heritage Reporting Corporation When did Official - Subject to Final Review 31 1 he say it? What does it mean, other than just 2 ipse dixit and conclusions? 3 GENERAL FRANCISCO: Sure. Your -- 4 Your Honor, I -- I'm tempted to pocket the 5 compliment and sit down, but I won't do that. 6 (Laughter.) 7 GENERAL FRANCISCO: I think the 8 Secretary fully acknowledged that there was an 9 upside to the request, and the upside was the 10 one the Department of Justice set forth in his 11 letter, that having citizenship data would help 12 improve Voting Rights Act enforcement. 13 He fully understood there was an 14 alternative using administrative records, and 15 he analyzed that alternative in the language 16 that I just read to Justice Breyer, and he 17 understood there was a downside, that adding 18 the citizenship question would potentially 19 increase self-response -- decrease -- increase 20 the number of -- decrease the number of 21 self-response rates. 22 But he found two things with respect 23 to that. First, he found -- and all of this is 24 in his letter -- that he could mitigate that to 25 at least a certain extent with follow-up Heritage Reporting Corporation Official - Subject to Final Review 32 1 operations, perhaps not entirely but at least 2 to a certain extent, and, secondly, to the 3 extent that materialized, it was the product of 4 illegal activity. 5 So he considered the benefits. 6 considered the alternatives. 7 costs -- 8 9 JUSTICE GINSBURG: He He considered the Which -- which letter -- 10 GENERAL FRANCISCO: -- and he 11 concluded that the benefits outweighed the 12 costs. 13 14 JUSTICE GINSBURG: letter are we talking about? 15 16 GENERAL FRANCISCO: JUSTICE GINSBURG: 18 GENERAL FRANCISCO: JUSTICE GINSBURG: GENERAL FRANCISCO: 23 JUSTICE GINSBURG: 25 The memo, yes, -- not the letter from -- 22 24 The memo, not -- Your Honor. 20 21 Secretary Ross's decision memo in March 2018, Your Honor. 17 19 General, which Yeah. -- Department of Justice. GENERAL FRANCISCO: Yes, Your Honor, Heritage Reporting Corporation Official - Subject to Final Review 33 1 the memo. But the Department of Justice's 2 letter is the one that articulated the Voting 3 Rights Act rationale that formed -- 4 JUSTICE KAVANAUGH: Can you explain -- 5 GENERAL FRANCISCO: -- the principal JUSTICE KAVANAUGH: -- can you explain 6 7 benefit. 8 how it would improve Voting Rights Act 9 enforcement? 10 GENERAL FRANCISCO: Yes, Your Honor. 11 One of the critical elements of Voting Rights 12 Act enforcement is something called Citizen 13 Voting Age Population, or CVAP. 14 everything for CVAP comes from the census, with 15 the exception of citizenship. 16 age, race, all of that comes from the census 17 except for citizenship, the C in CVAP. 18 Right now, So population, So a large amount of voting rights 19 litigation focuses on expert witnesses who try 20 to fill in that missing C and try to estimate 21 that missing C through imputation based on the 22 American Community Survey, which goes to just 23 one in 38 households. 24 25 And the Department of Justice wanted to get all of the same information from the Heritage Reporting Corporation Official - Subject to Final Review 34 1 same database so that critical feature of 2 voting rights litigation, CVAP, all came from 3 the same place. 4 JUSTICE SOTOMAYOR: 5 JUSTICE KAGAN: 6 JUSTICE SOTOMAYOR: General -- And to just --- how do we know 7 that DOJ couldn't do Alternative C, rely on the 8 administrative records? 9 do know is that the Secretary went to the The one thing that we 10 Department -- went to DOJ at the beginning and 11 asked them for help in adding the citizenship 12 question. 13 their lower-level people said no, told them to 14 shop it to DHS and see if DHS wanted the 15 citizenship question. They initially said no. At least DHS said not our work -- 16 GENERAL FRANCISCO: Uh-huh. 17 JUSTICE SOTOMAYOR: -- go back to DOJ. 18 They go back to DOJ, the people they're in 19 touch with, that are not low-level, but they're 20 not the highest level, say no. 21 22 And Secretary of Commerce speaks to the head of DOJ at the time -- 23 GENERAL FRANCISCO: Uh-huh. 24 JUSTICE SOTOMAYOR: -- and the head of 25 the DOJ says: We'll give you anything you Heritage Reporting Corporation Official - Subject to Final Review 35 1 need. They do a letter, the letter says the 2 ACS is not enough. 3 What the letter doesn't say is, ah, if 4 you supplemented with administrative records, 5 which 6(c) lets you do and tells you you should 6 do to maximize the extent possible that the 7 actual count is accurate, and we do know that 8 there will be less people being reported, which 9 is the whole purpose of the survey -- 10 GENERAL FRANCISCO: Uh-huh. 11 JUSTICE SOTOMAYOR: -- how many people 12 there are, and nobody doubts that there will be 13 less people reported. 14 That's a maximum need of the census 15 survey report, not citizenship. Let's not 16 confuse the two things. 17 many people reside here, not how many are 18 citizens. 19 supposed to figure out. The enumeration is how That's what the census survey is 20 GENERAL FRANCISCO: Uh-huh. 21 JUSTICE SOTOMAYOR: DOJ needs 22 citizenship. But, when the Bureau asks DOJ, 23 not the Secretary, to meet so they can discuss 24 why the administrative records are not good 25 enough, they say we don't need to. Heritage Reporting Corporation Official - Subject to Final Review 36 1 2 So tell me, in that sequence, how does the Secretary know the answer -- 3 GENERAL FRANCISCO: Sure. 4 JUSTICE SOTOMAYOR: -- to that GENERAL FRANCISCO: Sure. 5 6 question? So a couple 7 of responses to that, Your Honor. 8 start with the 6(c) issue because I know that 9 was of interest to Justice Breyer as well. 10 I'm going to And under 6(c), under my -- my 11 friend's on the other side's position, you 12 actually couldn't even ask the citizenship 13 question on the American Community Survey. 14 you also couldn't ask about sex and age on the 15 census itself since all of that information is 16 all also available in administrative records. 17 And But the reason why administrative 18 records are insufficient under 6(c) for any of 19 these purposes is for the simple reason that 20 you don't have them for 35 million people. 21 In terms of the Department of 22 Justice's request and the Census Bureau's 23 alternative proposal, it simply wasn't 24 responsive to the Department of Justice's 25 request for two reasons. Heritage Reporting Corporation Official - Subject to Final Review 37 1 First, administrative records didn't 2 solve the problem that the Department of 3 Justice was trying to solve, which was getting 4 all of their CVAP data from the same source and 5 covering the same time period. 6 records come from a different database and 7 cover a different time period than all of the 8 other information used to construct citizenship 9 voting age population. 10 JUSTICE SOTOMAYOR: 11 you why it's not good enough. 12 wanted something. Administrative That doesn't tell They may have 13 GENERAL FRANCISCO: Sure. 14 JUSTICE SOTOMAYOR: But they would 15 then be introduced with one database that has 16 been, according to the chief statistician of 17 the Bureau, introducing multiple layers of 18 uncertainty. 19 GENERAL FRANCISCO: Right. 20 JUSTICE SOTOMAYOR: Uncertainty about 21 or an undercount of people because they already 22 say that undercount's going to be at a minimum 23 5.8, less people are going to respond. 24 25 You're going to have a lesser number that are going to group with the administrative Heritage Reporting Corporation Official - Subject to Final Review 38 1 record. 2 conflict between their answer and the 3 administrative records. 4 the Bureau's use of that information to be able 5 to use the administrative record. 6 7 You're going to have 9.5 million that And we have to change And the Secretary doesn't ask, if we change that, what else will it affect? 8 GENERAL FRANCISCO: Right. 9 JUSTICE SOTOMAYOR: So he doesn't know 10 that. 11 population of at least 500,000. 12 And we now have error in the unreporting So something the chief statistician of 13 the Bureau tells us is, unlike our simpler 14 prior models, this introduces more uncertainty 15 at every single level of the calculus. 16 And so that data is going to be more 17 suspect, more prone to cross -- to less 18 reliability, and less accurate. 19 And so, if the Bureau -- if the 20 Department of Justice refused to listen to 21 that, how can the Secretary conclude that he's 22 complying with 6(c) fully? 23 the maximum extent possible, and how can you be 24 possible if you don't even ask why? 25 Because it says to This seems like he thought of Heritage Reporting Corporation Official - Subject to Final Review 39 1 something, I want to add a citizenship 2 question, I don't know why, but this is a 3 solution in search of a problem. 4 find a problem that fits what I want to do. 5 GENERAL FRANCISCO: I've got to So, Your Honor, 6 there's a whole lot in that question, but I 7 think I will start with where you ended. 8 9 And if you really think 6(c) is a problem, then we really cannot ask the 10 citizenship question on the American Community 11 Survey since that is just as subject to 6(c) as 12 the census is. 13 JUSTICE SOTOMAYOR: No, what it says 14 -- what it says is to the maximum extent 15 possible. 16 GENERAL FRANCISCO: And here the 17 Secretary is using the administrative records 18 to the maximum extent possible because he's 19 combining them. 20 21 22 JUSTICE SOTOMAYOR: But the ACS is not the survey. GENERAL FRANCISCO: He's combining 23 them with the administrative records and the 24 self-responses and using administrative records 25 where they're available, using self-responses Heritage Reporting Corporation Official - Subject to Final Review 40 1 at 98 percent accuracy -- 2 JUSTICE SOTOMAYOR: But the problem -- 3 GENERAL FRANCISCO: -- where 4 administrative records are not available. 5 JUSTICE SOTOMAYOR: -- but the problem 6 is you can't confuse the survey, which is 7 really the question of 6(c) -- 8 GENERAL FRANCISCO: No. 9 JUSTICE SOTOMAYOR: -- or the focus. 10 GENERAL FRANCISCO: It's not. 11 JUSTICE SOTOMAYOR: Because -- 12 GENERAL FRANCISCO: 6(c) applies to 13 all census instruments, not just the census. 14 It fully applies to the American Community 15 Survey. And it likewise applies -- 16 JUSTICE SOTOMAYOR: But the ACS is not 17 used -- the ACS is not used for the citizenship 18 purpose. 19 You already said why it wasn't. GENERAL FRANCISCO: But, Your Honor, 20 your question -- your question is about 6(c). 21 6(c) applies to the ACS and it applies to the 22 census. 23 And sex and age information, which we 24 ask on the census, is also available in 25 administrative records. Indeed, administrative Heritage Reporting Corporation Official - Subject to Final Review 41 1 records are more accurate with respect to sex 2 and age because, presumably, your birth date 3 and your sex don't change over the course of 4 time, whereas your citizenship status does. 5 So, if you really think that 6(c) is a 6 problem, we can't ask it on the ACS and we 7 can't ask sex and age on the census, so that's 8 why I think that is plainly wrong. 9 does boil down to whether the Secretary's 10 11 It really judgment here is a reasonable one. And in the face of two competing 12 possibilities, either asking the question, 13 getting answers for two-thirds of the people 14 for whom no administrative records existed, at 15 98 percent accuracy, or using an estimation 16 model that had not yet been created and had an 17 unknown error rate, the Secretary reasonably 18 chose to go -- 19 JUSTICE KAGAN: 20 GENERAL FRANCISCO: 21 22 But just --- with the bird in the hand. JUSTICE KAGAN: -- general, just going 23 back to Justice Kavanaugh's simple question 24 about why the Secretary thought that there was 25 a need for this data, and then part of what Heritage Reporting Corporation Official - Subject to Final Review 42 1 Justice Sotomayor was talking about was that it 2 did really seem like the Secretary was shopping 3 for a need. 4 Goes to the Justice Department. 5 Justice Department says we don't need anything. 6 Goes to DHS. 7 anything. 8 Makes it clear that he's going to put in a call 9 to the Attorney General. DHS says they don't need Goes back to the Justice Department. Finally, the Justice 10 Department comes back to him and says: 11 we can give you what you want. 12 Okay, So you can't read this record without 13 sensing that this -- this need is a contrived 14 one. 15 assistant attorney general in the Civil Rights 16 Division that have never made a plea for this 17 kind of data. 18 Nobody had -- there have been lots of And -- and just the way this went back 19 and forth, I guess I'd like an answer to that 20 simple question. 21 GENERAL FRANCISCO: Yeah. Sure. And 22 I have two responses, Your Honor. 23 I may, I'd like to reserve the remainder of my 24 time for rebuttal. 25 And then, if First, I think it is quite common for Heritage Reporting Corporation Official - Subject to Final Review 43 1 cabinet Secretaries to come into office with 2 ideas and inclinations to discuss with their 3 staff and discuss with their colleagues whether 4 there is a legal and policy basis for that 5 inclination. 6 Secondly, there's no evidence in this 7 record that the Secretary would have asked this 8 question had the Department of Justice not 9 requested it. And there's no evidence in this 10 record that the Secretary didn't believe that 11 the Department of Justice actually wanted this 12 information to improve Voting Rights Act 13 enforcement. 14 15 16 17 18 19 20 21 CHIEF JUSTICE ROBERTS: Thank you, General. General Underwood. ORAL ARGUMENT OF BARBARA D. UNDERWOOD ON BEHALF OF RESPONDENTS NEW YORK, ET AL. MS. UNDERWOOD: Mr. Chief Justice, and may it please the Court: The Secretary decided to add this 22 question about citizenship to the 2020 census 23 although the record before him contained 24 uncontradicted and strong evidence that it will 25 cause a decline in the response rate of Heritage Reporting Corporation Official - Subject to Final Review 44 1 non-citizens and Hispanics, to the detriment of 2 the states and localities where they live. 3 He gave three reasons for the 4 decision, and none of them can survive APA 5 review. 6 One, he said there was inadequate 7 evidence of an effect on the response rate. 8 But that is flatly contrary to the record. 9 He said he could dismiss or discount 10 any such effect because non-response is an 11 illegal act. 12 impermissible factor to consider on this 13 question. 14 But that is an irrational and And he said that adding the question 15 would help voting rights enforcement. But that 16 claim is unsupported by the record as well. 17 CHIEF JUSTICE ROBERTS: 18 you think it wouldn't help voting rights 19 enforcement? 20 Population, is the critical element in voting 21 rights enforcement, and this is getting citizen 22 information. 23 Do you -- do The CVAP, Citizen Voting Age MS. UNDERWOOD: Well, as we have -- as 24 has been discussed at length in the -- during 25 the previous argument, the evidence before him Heritage Reporting Corporation Official - Subject to Final Review 45 1 was that it would not give better citizenship 2 information than -- that it's the 22 million 3 that the government points to, the 22 million 4 whose citizenship information will be either 5 modeled or the result of the answer to a census 6 question. 7 JUSTICE GINSBURG: Was there anything 8 that showed that the Department would have been 9 aided in either past cases or cases on the 10 drawing board? 11 Any case? MS. UNDERWOOD: There was not. And 12 what I'd like to point out is that the 13 comparison should be to using administrative 14 records. 15 The Department of Justice letter taken 16 at face value says the old ACS survey data that 17 we've been using is inadequate and we need an 18 improvement over that. 19 The Census Bureau produced this 20 answer, which is we can do this by linking the 21 existing census information to administrative 22 records. 23 commented on that. 24 25 The Department of Justice never The Department of Justice actually declined to meet with the Census Bureau people Heritage Reporting Corporation Official - Subject to Final Review 46 1 who wanted to meet about it. 2 nothing before the Secretary to say that this 3 survey -- this census information would be an 4 improvement -- there was no comparison at all 5 from the Department of Justice about whether 6 this would be an improvement or not. 7 So there was It seems to me that at least with so 8 much question about whether this information 9 would be better or worse than the -- the use of 10 modeling from administrative records, the 11 Secretary had an obligation to find out the 12 answer to that question. 13 14 JUSTICE KAVANAUGH: What if the answer was uncertain? 15 MS. UNDERWOOD: Well, if the answer is 16 uncertain, then it is hard to invoke that as a 17 reason. 18 enumeration. 19 unclear, we think it's worse. 20 just unclear whether this question will improve 21 voting rights enforcement, that is not 22 sufficient to pay the cost of the steep decline 23 in the enumeration because the enumeration is, 24 after all, the primary purpose of the census. 25 Now we get back to the cost in the That is, if the -- if it's JUSTICE ALITO: But, if it's Well, on the Heritage Reporting Corporation Official - Subject to Final Review 47 1 modeling -- 2 3 CHIEF JUSTICE ROBERTS: Well, is that -- go ahead. 4 JUSTICE ALITO: On the modeling, there 5 was a lot of talk during the first part of the 6 argument about -- I think it's 22.6 million 7 people who it would -- it is predicted would 8 answer the citizenship question and as to whom 9 there is not administrative data. 10 And there was an estimate that those 11 answers would be 98 percent accurate. 12 comparison then has to be between that 13 98 percent predicted accuracy rate and whatever 14 the accuracy rate would be for the model. 15 And the And is there anything in the 16 administrative record that shows that the model 17 was tested and that it was possible to extract 18 a -- a predicted error rate for the model? 19 MS. UNDERWOOD: What we have -- what 20 we have is that this -- the model hadn't been 21 generated, but what we have is the Census 22 Bureau saying this is like other modeling that 23 we routinely do. 24 do it. 25 We're confident that we can JUSTICE ALITO: So, if the Secretary Heritage Reporting Corporation Official - Subject to Final Review 48 1 is -- has to choose between two things, and, on 2 one, the Secretary knows there's a 98 percent 3 accuracy rate, and as to the other, the Census 4 Bureau says we're going to create a model, and 5 we don't know how -- we can't give you any 6 statistics, but trust us, it's going to be more 7 accurate than 98 percent, is it arbitrary and 8 capricious for the Secretary to say, I'll go 9 with the 98 percent because that's a known 10 quantity? 11 MS. UNDERWOOD: If there were no cost 12 to the enumeration, that would be a different 13 question. 14 uncertainty, then it is arbitrary and 15 capricious to take that kind of risk -- 16 17 JUSTICE BREYER: I don't understand -- sorry. 18 19 But, when there is this much MS. UNDERWOOD: -- with the enumeration. 20 JUSTICE BREYER: 21 uncertainty. 22 course, it's 98 percent. 23 citizens. I don't understand I thought the 98 percent -- of 24 MS. UNDERWOOD: 25 JUSTICE BREYER: Most people are Right. The people who are Heritage Reporting Corporation Official - Subject to Final Review 49 1 citizens are not going to -- you know, they'll 2 say they're citizens. 3 are a few percent who are not citizens. 4 All you'd ever expect Then I have on pages J -- Joint 5 Appendix 882 through 884 Mr. Abowd's testimony 6 where he unequivocally says three times that in 7 -- in -- not 98 percent -- in respect to those 8 people who are not citizens, the administrative 9 model will be more accurate than just asking 10 the census question, and if you add the census 11 question, then you look to it for the answer, 12 you will discover that you are less accurate in 13 respect to non-citizens. 14 Now he says that. That's why I asked 15 the Solicitor General what is their contrary to 16 that, and he gave me things to look at. 17 would say the most contrary thing, which I want 18 to ask you about, is Dr. Abowd, at the trial, 19 said, "There's no credible quantitative 20 evidence that the addition of a citizenship 21 question will affect the accuracy of the 22 count." All right? That's what he said. 23 MS. UNDERWOOD: 24 JUSTICE BREYER: 25 And I Yes. Now I'm sure in their reply brief they pointed right to that. Heritage Reporting Corporation You Official - Subject to Final Review 50 1 can't simply ignore it. 2 what your answer is to that, which the 3 government says is contrary evidence. 4 MS. UNDERWOOD: And so I want to hear If you look at that 5 testimony in context, it is perfectly clear 6 that what he is saying is that he didn't have 7 enough evidence for a firm quantitative 8 statement, meeting scientific standards. 9 actually defined the term "credible 10 11 He quantitative evidence." And if you'll bear with me, he -- he 12 said it's evidence that is specifically related 13 to the insertion of a citizenship question into 14 the otherwise planned 2020 census that 15 identifies the citizenship question itself as 16 the likely or one of the causal elements 17 associated with changes in the outcomes and 18 that would stand up to extensive peer review 19 within the Census Bureau and with the 20 scientific community. 21 CHIEF JUSTICE ROBERTS: 22 MS. UNDERWOOD: 23 CHIEF JUSTICE ROBERTS: 24 25 That -- And -- and the --- that's the evidence that he found was not available? MS. UNDERWOOD: Yes, that's right. Heritage Reporting Corporation He Official - Subject to Final Review 51 1 said he didn't have enough to quantify accord 2 -- in accordance with peer-reviewed standards. 3 He didn't say there would be no effect. 4 said, I don't have enough to give what I -- 5 what I believe as a scientist to be this term, 6 "credible quantitative" -- to make a credible, 7 quantitative evidence. 8 9 JUSTICE KAVANAUGH: Can -- can I ask -- 10 MS. UNDERWOOD: 11 JUSTICE KAVANAUGH: 12 He So he is -I'm sorry, please finish. 13 MS. UNDERWOOD: And -- and my point is 14 that, at the same trial, if we're going to look 15 at the trial testimony, at the same trial, 16 other experts said: 17 enough evidence to make a different kind of 18 judgment, not a firm scientific, quantified 19 judgment, but a judgment. 20 Maybe so, but there is JUSTICE ALITO: Do you think it's 21 proper to look at the trial record on this 22 issue? 23 Respondents' brief to trial testimony. 24 25 There's a lot of citation in the Aren't we reviewing the administrative record? Heritage Reporting Corporation Official - Subject to Final Review 52 1 MS. UNDERWOOD: We are. Well, as for 2 standing, we're reviewing the whole record. 3 And as -- 4 5 6 JUSTICE ALITO: That's correct. But as to the arbitrary and capricious review -MS. UNDERWOOD: Correct. That's -- 7 that -- that is correct, but that would make 8 this statement also of Dr. Abowd off the 9 record, off the administrative record. 10 JUSTICE KAVANAUGH: 11 MS. UNDERWOOD: 12 JUSTICE KAVANAUGH: 13 MS. UNDERWOOD: 14 JUSTICE KAVANAUGH: 15 MS. UNDERWOOD: 16 17 18 19 Can I -- But what I --- can I ask a -- Yes. Please. Please finish. No, going -- going -- going back to your question -CHIEF JUSTICE ROBERTS: Wait a minute, Justice Kavanaugh. MS. UNDERWOOD: -- while I think there 20 is good evidence, and nothing contrary, that 21 this 22 million would be more accurately 22 identified by the modeling than by the census, 23 I think it is sufficient for this purpose to 24 treat it as somewhat uncertain because it is 25 uncertainty with respect to the discretionary Heritage Reporting Corporation Official - Subject to Final Review 53 1 part of what the Census Bureau does; namely, 2 collect extra information. 3 The core function of the census, not 4 of the Census Bureau in all its actions, but of 5 -- on the census form -- 6 JUSTICE KAVANAUGH: But the -- the 7 United Nations recommends that countries ask a 8 citizenship question on the census. 9 number of other countries do it. And a Spain, 10 Germany, Canada, Australia, Ireland, Mexico ask 11 a citizenship question. 12 And the United States has asked a 13 citizenship question, as you know, in one form 14 or another since 1820, excluding 1840. 15 again, long form at times, in more recent 16 times, and then on the ACS since 2005. 17 And, The question is, does that 18 international practice, that U.N. 19 recommendation, that historical practice in the 20 United States, affect how we should look at the 21 inclusion of a citizenship question in this 22 case? 23 MS. UNDERWOOD: The same guidance from 24 the U.N. also says to be careful to test 25 questions to make sure they don't interfere Heritage Reporting Corporation Official - Subject to Final Review 54 1 with the enumeration. 2 a judgment in context. 3 countries either haven't examined or don't have 4 the problem that has been identified -- the 5 problem of depressing the enumeration that the 6 United States has. 7 8 9 It says you need to make It may be that those It's certainly something to look at, but -JUSTICE KAVANAUGH: But you agree it's 10 very -- it's a very common question 11 internationally? 12 MS. UNDERWOOD: Well, it is certainly 13 useful information for a country to have. 14 I'm not suggesting at all that that information 15 shouldn't be collected. 16 And The question is whether it should be 17 collected on the very instrument that is -- 18 whose principal function is to count the 19 population, when we have such strong evidence 20 that it will depress that count, make it less 21 accurate, and make it less accurate in a -- 22 CHIEF JUSTICE ROBERTS: Well, the 23 principal purpose -- you're -- you're right, 24 the principal purpose is to count the 25 population, but we've had demographic questions Heritage Reporting Corporation Official - Subject to Final Review 55 1 on the census -- I don't know how far back, 2 but, certainly, it's quite common. 3 4 5 MS. UNDERWOOD: That's -- that's correct, but we have no evidence about -CHIEF JUSTICE ROBERTS: Sex, age, 6 things like that. 7 you know, do you -- do you own your house? 8 you own a radio? 9 quite beyond how many people there are. 10 You go back and it looks -Do I mean, the questions go MS. UNDERWOOD: Well, I'd like to say 11 two things about that. 12 evidence about any of those other questions 13 that they depress the count in this substantial 14 a way and in this disproportionate a way 15 because, as this Court said in Wisconsin, 16 distributive accuracy is even more important 17 for the census. 18 JUSTICE ALITO: We have no comparable Well, the -- the -- 19 the response rate is very important, so can I 20 ask you a question about that? 21 A lot of your argument and a lot of 22 the district court's argument seems to hinge on 23 this prediction that there will be 5.1 percent 24 fewer responses if the citizenship question is 25 included on the census. Heritage Reporting Corporation Official - Subject to Final Review 56 1 But that seems -- that is based, as I 2 understand it, on the fact that non-citizens 3 are somewhat less likely to complete the ACS, 4 which includes the citizenship question, than 5 are citizens. 6 that? 7 from? 8 9 10 Am I right in understanding That's fundamentally where that comes MS. UNDERWOOD: completing. It's not about not It's about not -- I mean, it's not about skipping questions on a form. 11 JUSTICE ALITO: Not -- not responding. 12 MS. UNDERWOOD: It's about not 13 responding. 14 Yes. JUSTICE ALITO: That's correct. Okay. 15 They are somewhat less likely to respond to the 16 ACS than are -- 17 18 MS. UNDERWOOD: The ACS in one study and the long form in another. 19 JUSTICE ALITO: Okay. But what jumps 20 out is the fact that citizens and non-citizens 21 differ in a lot of respects other than 22 citizenship. 23 status. 24 in language ability. 25 They differ in socioeconomic They differ in education. They differ So I don't think you have to be much Heritage Reporting Corporation Official - Subject to Final Review 57 1 of a statistician to wonder about the 2 legitimacy of concluding that there is going to 3 be a 5.1 percent lower response rate because of 4 this one factor. 5 more there. 6 7 So what -- what does that analysis miss? 8 9 But maybe there is something MS. UNDERWOOD: couple of things. The strong -- well, a The strong empirical 10 evidence that is the basis for that judgment, 11 which, by the way, has not been contested by 12 the government, the government has other things 13 to say but does not contest this decline -- 14 15 JUSTICE ALITO: I thought they did but, in any event, go ahead. 16 MS. UNDERWOOD: I will come back to 17 that -- is a -- is a retrospective review of 18 comparing in one case for 2010 the short form 19 census and the ACS, and in 2000 it was to 20 compare the short form and the long form 21 census. 22 It's a comparable comparison. In each 23 case the longer one had a citizenship question 24 on it. 25 In each case everyone, population Heritage Reporting Corporation Official - Subject to Final Review 58 1 groups notwithstanding, there was a decline 2 from the short form to the long form. 3 there was a much greater decline among 4 Hispanics and non-citizens. 5 JUSTICE GORSUCH: But But, counsel, 6 doesn't Justice Alito have a point, to the 7 extent that there could be multiple reasons why 8 individuals don't complete the form. 9 MS. UNDERWOOD: 10 JUSTICE GORSUCH: 11 MS. UNDERWOOD: 12 JUSTICE GORSUCH: Well, the lay -And we haven't -I'm sorry, go ahead. Plenty of 13 interrupting. 14 disaggregating the reasons why the forms are 15 left uncompleted. 16 But we don't have any evidence What do we do with that? I mean, normally we would have a 17 regression analysis that would disaggregate the 18 potential cause and identify to a 95th 19 percentile degree of certainty what the reason 20 is that persons are not filling out this form 21 and we could attribute it to this question. 22 23 24 25 We don't have anything like that here. So what are we supposed to do about that? MS. UNDERWOOD: Well, I think -- I think there are a few things to say. Heritage Reporting Corporation Official - Subject to Final Review 59 1 JUSTICE GORSUCH: 2 MS. UNDERWOOD: 3 JUSTICE GORSUCH: And -- and -- and -Well --- and let me just 4 throw in one other question. 5 is on but I really wanted to get it to you and 6 I'm sorry we haven't gotten there. 7 I know your light And, that is, what do we do also -- 8 and it's totally different, so I'm really 9 sorry -- what do we do with the fact that, as I 10 understand it, some of the Respondents and 11 other people in litigation have complained when 12 -- when folks have relied on the ACS to 13 extrapolate citizenship for purposes of 14 redistricting and, in fact, argued that we 15 should rely only on actual census data? 16 And I understand Respondents have made 17 that argument in litigation. 18 with that? 19 MS. UNDERWOOD: So what do we do There are a lot of 20 complaints about the ACS. The Census Bureau's 21 proposal to use administrative records solves 22 most of them. 23 ACS, which is a survey about which there have 24 been many complaints, and the -- putting the 25 question on the census. It's not a question of just the Heritage Reporting Corporation Official - Subject to Final Review 60 1 The Census Bureau is -- they are data 2 experts. There are many ways of trying to 3 collect data. 4 whether doing it on the census form is 5 warranted, even though it causes such a harm to 6 the count. The question in this case is 7 JUSTICE SOTOMAYOR: 8 MS. UNDERWOOD: 9 I thought that -- Now that brings us back -- 10 JUSTICE SOTOMAYOR: -- Dr. Abowd's 11 testimony, or at least the letter, somewhere I 12 read, that they controlled for -- for all of 13 the other reasons that Justice Gorsuch was 14 mentioning as reasons why people would not 15 complete? 16 MS. UNDERWOOD: Well, they certainly 17 controlled for the length of the form. 18 was the -- that was the -- 19 20 JUSTICE BREYER: That Well, not just that. On page 110 -- 21 MS. UNDERWOOD: Yes. Yes. 22 JUSTICE BREYER: -- of the Joint 23 Appendix, it says whether the response -- 24 dah-dah-dah -- that they are much greater. 25 says in comparable rates for other demographic Heritage Reporting Corporation It Official - Subject to Final Review 61 1 variables like sex, birth date -- 2 MS. UNDERWOOD: 3 JUSTICE BREYER: Yes. -- age, race, 4 ethnicity. So I thought that that was an 5 effort to control for the things that Justice 6 Alito -- 7 MS. UNDERWOOD: 8 JUSTICE BREYER: 9 10 It --- mentioned insofar as their relevance. MS. UNDERWOOD: It was. The -- the 11 only limitation on it was that they had to deal 12 with data that already existed. 13 wanted to do a random controlled test of this 14 question and wasn't permitted to do so. 15 JUSTICE ALITO: Dr. Abowd But that's not -- 16 that's a different issue, isn't it, what 17 Justice Breyer mentioned? 18 JUSTICE GORSUCH: 19 20 It's totally different, yeah. JUSTICE ALITO: It's the decline in 21 the response rate based on those variables, but 22 not -- it doesn't -- it doesn't, as Justice 23 Gorsuch says, disaggregate the many factors 24 that could explain a decline when you're 25 distinguishing between citizens and Heritage Reporting Corporation Official - Subject to Final Review 62 1 non-citizens. 2 MS. UNDERWOOD: Well, it did try to 3 control for other properties that citizens have 4 -- 5 JUSTICE GORSUCH: 6 MS. UNDERWOOD: -- and non-citizens -- 7 JUSTICE KAGAN: Am I right -- 8 MS. UNDERWOOD: -- have -- 9 JUSTICE KAGAN: -- that there -- 10 11 JUSTICE GORSUCH: But we don't -- It's fair to say we don't have this isolated, though, isn't it? 12 MS. UNDERWOOD: 13 JUSTICE GORSUCH: 14 MS. UNDERWOOD: They did their best. They did their best. There is some degree 15 of isolation, enough to enable them to believe 16 that they had isolated the factors that people 17 thought of as plausible. 18 JUSTICE BREYER: 19 JUSTICE KAGAN: 20 JUSTICE BREYER: -- there are a million factors. 23 MS. UNDERWOOD: 24 JUSTICE BREYER: 25 Would it be right to say -- 21 22 I mean -- Yes. There is pet dogs, you know. Heritage Reporting Corporation Official - Subject to Final Review 63 1 MS. UNDERWOOD: 2 JUSTICE BREYER: Yes. I mean, there are 3 cats. And -- and so if, in fact, there were 4 some factors that are relevant, which were not 5 in the data, because they only controlled for 6 six other factors instead of 600, I would 7 expect somewhere in this record someone to have 8 written that there were these other factors 9 that also should have been controlled for. 10 I know what you are going to say, 11 unless I'm wrong, you better not tell me that I 12 am right if I'm not. 13 (Laughter.) 14 JUSTICE BREYER: 15 16 But I could not -- -- find any such place in the record. MS. UNDERWOOD: Nobody proposed, that 17 I know of, proposed factors that might be 18 alternative explanations that should have been 19 tested for. 20 JUSTICE KAGAN: And -- and would it be 21 right to say, General, that it was the Census 22 Bureau's conclusion, a Bureau full of 23 statisticians -- 24 MS. UNDERWOOD: Yes. 25 JUSTICE KAGAN: -- that it was the Heritage Reporting Corporation Official - Subject to Final Review 64 1 citizen -- citizenship question that was 2 driving the differential response rates? 3 4 MS. UNDERWOOD: That is -- that is correct. 5 CHIEF JUSTICE ROBERTS: Are there 6 other -- are there other questions on the 7 census for which the administrative records 8 provide more accurate information? 9 10 MS. UNDERWOOD: the record about that. 11 12 There is nothing in CHIEF JUSTICE ROBERTS: Well, then I don't want to hear about it. 13 MS. UNDERWOOD: Okay. 14 JUSTICE SOTOMAYOR: Okay. Could you answer 15 the General's point that, if you rely on 6(c), 16 then you shouldn't be even asking this on the 17 ACS form? 18 MS. UNDERWOOD: No. The -- for one 19 thing, in order to do modeling, in order to do 20 sampling, they need some survey data to compare 21 it to. 22 And so some judgments can be made and 23 the judgment might be made that the ACS or some 24 questionnaire that doesn't involve harm to the 25 count that is sampling or -- or some other form Heritage Reporting Corporation Official - Subject to Final Review 65 1 of -- less -- less than universal questioning, 2 that testing questions on that kind of 3 instrument is the way to do it. 4 CHIEF JUSTICE ROBERTS: 5 But -Thank you. Thank you, General. 6 Mr. Ho. 7 ORAL ARGUMENT OF DALE E. HO 8 ON BEHALF OF RESPONDENTS NEW YORK 9 IMMIGRATION COALITION, ET AL. 10 11 12 MR. HO: Mr. Chief Justice and may it please the Court: The Secretary's decision rested 13 primarily on one assertion, that it would 14 improve the accuracy of citizenship data 15 provided to the Department of Justice. 16 But the administrative record revealed 17 precisely the opposite, that it would make that 18 data less accurate and, thus, harm the 19 Secretary's stated purpose of Voting Rights Act 20 enforcement. 21 And the Secretary's explanation for 22 his decision misstated the evidence in the 23 record in three critical respects. 24 25 First, the Secretary asserted that adding the question would maximize the Census Heritage Reporting Corporation Official - Subject to Final Review 66 1 Bureau's ability to use administrative records 2 on citizenship, but the government has conceded 3 that that was not true. 4 At page 32 of their brief, they 5 acknowledge that, if the question is added, the 6 number of people who can be matched to these 7 administrative records, the most accurate 8 information that we have on citizenship, will 9 fall by one million. 10 Second, the Secretary asserted that 11 adding the question would improve the Bureau's 12 imputation of citizenship for people who lack 13 -- for people for whom the government lacks any 14 such records. 15 But the government has conceded that 16 that was not true either. 17 opening brief, they acknowledge that the Census 18 Bureau determined that if the question is 19 added, the imputation process will become less 20 accurate. 21 And here's why: At page 34 of their The accuracy of 22 imputation depends upon the accuracy of 23 existing data. 24 are based on a person's legal documents of 25 their citizenship, and, thus, are quite Federal administrative records Heritage Reporting Corporation Official - Subject to Final Review 67 1 accurate and reliable for this purpose. 2 But the citizenship question is not. 3 The evidence shows that non-citizens respond to 4 the question inaccurately one-third of the 5 time. 6 that's used for imputation will be contaminated 7 by those incorrect responses, making the output 8 of the imputation process less accurate, making 9 the data less accurate, and, again, harming the So, if the question is used, the data 10 Secretary's stated purpose of improving the 11 accuracy of citizenship information. 12 The Secretary misstated the evidence 13 in a third respect. 14 the question would fill in the gaps in 22 15 million -- for 22 million people in 16 administrative records on citizenship. 17 Census Bureau concluded specifically, on the 18 last page of their March 1 memo in the 19 administrative record, that the Secretary's 20 decision will not solve that problem. 21 He asserted that adding But the And the reason is, again, because 22 responses to the question are highly 23 inaccurate, whereas the imputation process, 24 based solely on -- on administrative records, 25 would be more accurate. That's reflected in Heritage Reporting Corporation Official - Subject to Final Review 68 1 the Census Bureau's bottom line conclusion in 2 its March 1 memo, and it's reflected in the 3 testimony of Dr. Abowd on that trial. 4 JUSTICE ALITO: But this takes us 5 back, does it not, if I'm following your 6 argument, to the 22.6 million people who will 7 answer the citizenship question but as to whom 8 there aren't administrative records? 9 what you're talking about? 10 MR. HO: 11 JUSTICE ALITO: That's Yes, Justice Alito. Okay. And so then 12 this is territory that we've -- we've covered, 13 but, if the Secretary is told here's the error 14 rate that we can expect for those who answer 15 the citizenship question, and on the other 16 hand, we have this model and we can't tell you 17 how accurate it is, but trust us, it's going to 18 be better, is it arbitrary and capricious for 19 the Secretary to say, I don't want to go with 20 this model because I don't know what the 21 accuracy of that is? 22 MR. HO: Justice Alito, respectfully, 23 I think the Census Bureau said a little bit 24 more than trust us. 25 said was we can develop a highly accurate model What the Census Bureau Heritage Reporting Corporation Official - Subject to Final Review 69 1 for this that's going to be better than getting 2 the question wrong one-third of the time, which 3 is what -- 4 JUSTICE ALITO: Yeah, well, they said, 5 in our opinion, this would be better, but they 6 can't quantify it. 7 a specific number; they don't even provide a 8 range. 9 They -- they don't provide Am I right on that? MR. HO: They do say that it would be 10 more accurate than responses to the citizenship 11 question, which they do quantify as being 12 incorrect one-third of the time for 13 non-citizens. And if I could get back to -- 14 CHIEF JUSTICE ROBERTS: 15 MR. HO: 16 CHIEF JUSTICE ROBERTS: 17 MR. HO: But it is a -- -- Justice Kavanaugh's -- Oh, I'm sorry. Go ahead. Justice 18 Kavanaugh's question earlier about whether or 19 not that can help with Voting Rights Act 20 enforcement, it can't. 21 Citizenship data matters in the Voting Rights 22 Act. 23 24 25 And -- and here's why: CHIEF JUSTICE ROBERTS: I'm sorry, just to -- what can't? MR. HO: I'm sorry. Heritage Reporting Corporation Official - Subject to Final Review 70 1 2 3 CHIEF JUSTICE ROBERTS: I lost sight of the "it" in your answer. MR. HO: The Secretary's question, 4 Mr. Chief -- the Secretary's decision, 5 Mr. Chief Justice. 6 And responses -- CHIEF JUSTICE ROBERTS: I thought you 7 were talking about whether it's helpful with 8 respect to the voting rights information. 9 MR. HO: That's right. Adding a 10 citizenship question to the census, I'm sorry, 11 is not helpful for Voting Rights Act purposes 12 because responses to the question are 13 inaccurate so frequently for non-citizens. 14 Citizenship matters in the Voting Rights Act 15 context when you're dealing with a population 16 in which there's a large number of 17 non-citizens. 18 The VRA requires the drawing of 19 districts in which minority voters constitute a 20 majority sometimes under some circumstances. 21 Now, under normal circumstances, voting age 22 population data will be sufficient for that 23 purpose if citizenship rates are high. 24 25 But, if the minority group has relatively low citizenship rates, for example, Heritage Reporting Corporation Official - Subject to Final Review 71 1 as is the case with Hispanic populations in 2 some circumstances, then you need citizenship 3 data to make sure that you're drawing a 4 district in which minority voters are, in fact, 5 a majority of the population. 6 And data that's wrong one-third of the 7 -- the time with respect to non-citizens just 8 doesn't help you draw districts -- 9 JUSTICE GORSUCH: 10 11 12 MR. HO: Well, when we -- -- at that granular block-by-block level. JUSTICE GORSUCH: Well, when we talk 13 about the block-by-block level, one of the 14 complaints that we've heard from the other side 15 is that the data that we rely on from the ACS 16 is at too high a level and that the census goes 17 down to a more granular level. 18 And, in fact, some of the states who 19 are now Respondents before us have in 20 litigation, including in this Court, argued 21 that ACS data should not be relied upon for 22 purposes of citizenship or other purposes, that 23 the census data is more accurate. 24 25 What do we do about that? It seems to me like you kind of put the government in a bit Heritage Reporting Corporation Official - Subject to Final Review 72 1 of a Catch 22. 2 census, except for in later litigation when 3 they have to use the census. 4 MR. HO: You say they shouldn't use the Justice Gorsuch, let me say 5 two things in response to that. The first is 6 that, to the extent that more granular 7 citizenship data were, in fact, necessary for 8 Voting Rights Act enforcement purposes, and we, 9 I think, set forth a number of reasons in our 10 brief why that's not, in fact, the case, but 11 just assuming that it is, the -- 12 JUSTICE GORSUCH: Well, we -- we know 13 states have argued this, including some of the 14 Respondents before us. 15 is a thing. 16 MR. HO: So I'm -- you know, it Okay, that -- that's fair. 17 But what the Census Bureau recommended was that 18 it could develop that block-level data either 19 with existing ACS data or using administrative 20 records and that that would be, in fact, the 21 best and most accurate way to do that. 22 JUSTICE GORSUCH: And -- So -- so the states 23 that said previously that wasn't enough now are 24 going in all future litigation to bind 25 themselves to accept that it is enough? Heritage Reporting Corporation Official - Subject to Final Review 73 1 MR. HO: 2 JUSTICE GORSUCH: 3 4 Well -Are you prepared to say that? MR. HO: -- Justice Gorsuch, we've 5 never taken -- our clients have never taken 6 that position, and I -- I'm not aware of my 7 organization ever taking that position in 8 litigation. 9 JUSTICE GORSUCH: And how -- how about 10 the under-reporting or the folks who stop and 11 break off answering the long form and -- and 12 we're asked to believe that that's solely 13 attributable to this question? 14 bunch of states that say that, in fact, the 15 break-off rate because of that question, at 16 that question, is something like 0.36 percent. 17 MR. HO: 18 JUSTICE GORSUCH: We have a whole Well -So that it's very 19 difficult to understand why that question would 20 be the cause of people stopping answering, 21 whereas another possible explanation that 22 hasn't been explored, as I understand it at 23 least, is the length of the form itself may 24 deter those with less means and less time to 25 fill them out, just as simple as that, and we Heritage Reporting Corporation Official - Subject to Final Review 74 1 2 3 4 don't know. And what do we do with the fact that we don't know? MR. HO: Justice Gorsuch, the Census 5 Bureau's conclusion was that the most likely 6 explanation was the citizenship question. 7 only difference in that comparative estimate 8 was the presence of a non-citizen in a 9 household, and citizenship is obviously the 10 most salient question that goes to the 11 difference between those two populations. 12 The And the number on the break-off rates 13 for the Internet ACS survey, which I believe 14 Your Honor was referring to, they showed that 15 Hispanics were actually eight times as likely 16 to break off in responding to the ACS upon 17 encountering the citizenship question. 18 Now, by contrast, there isn't a shred 19 of evidence in the administrative record that 20 suggests that this question will not have the 21 effect of harming response rates or will 22 actually improve the citizenship data provided 23 to the Department of Justice. 24 25 But if I could make one other point in response to your earlier question, Justice Heritage Reporting Corporation Official - Subject to Final Review 75 1 Gorsuch, adding the citizenship question 2 doesn't even solve that granularity problem 3 that you referenced, and here's why: 4 the Census Bureau can only produce estimates of 5 citizenship at the block level. 6 has now conceded that on page 18 of their reply 7 brief, which is quite remarkable, because the 8 government's rationale for asking this question 9 has been to provide a full count of 10 Because The government citizenship. 11 And because of the Census Bureau's 12 disclosure avoidance protocols, it actually 13 can't do that at the block level. 14 undermines the whole rationale for adding this 15 question, and the Secretary didn't even address 16 it in his decisional memo, which renders his 17 decision arbitrary and capricious under State 18 Farm. 19 JUSTICE KAVANAUGH: 20 JUSTICE KAGAN: 21 JUSTICE KAVANAUGH: 22 JUSTICE KAGAN: Go ahead. -- I was just -- what is the "it" in that sentence? 24 Secretary not address? MR. HO: It seems to me -- So -- 23 25 It What did the He did not address the fact Heritage Reporting Corporation Official - Subject to Final Review 76 1 that because of the bureau's disclosure 2 avoidance protocols, it can only provide 3 estimates of citizenship at the block level. 4 If I could, let me explain why. The 5 statute requires the Census Bureau not to 6 disclose information that could result in the 7 identification of a person's census responses. 8 If you have 100 people living on a block and 9 the Census Bureau says, well, there are 100 10 citizens there, you will have necessarily 11 identified all of their census responses. 12 So what the bureau does is it alters 13 demographic totals for census blocks before 14 publishing them. 15 an approximation, it's an estimate, just like 16 the ACS data that the Department of Justice 17 currently relies on. 18 critical. 19 That means that that data is And here's what's JUSTICE ALITO: Well, this is -- this 20 gets really, really technical, but -- well, and 21 your -- I'm sorry. 22 CHIEF JUSTICE ROBERTS: 23 JUSTICE ALITO: 24 CHIEF JUSTICE ROBERTS: 25 No, go ahead. That's -- that's fine. Okay. you, counsel. Heritage Reporting Corporation Thank Official - Subject to Final Review 77 1 MR. HO: 2 CHIEF JUSTICE ROBERTS: 3 Mr. Letter. ORAL ARGUMENT OF DOUGLAS N. LETTER 4 ON BEHALF OF THE UNITED STATES HOUSE OF 5 REPRESENTATIVES, AS AMICUS CURIAE, 6 IN SUPPORT OF THE RESPONDENTS 7 8 Thank you, Your Honors. MR. LETTER: Mr. Chief Justice, and may it please the Court: 9 I just want to say right upfront the 10 Speaker of the House wishes to thank the 11 Justices for their courtesy in hearing from the 12 House today. 13 14 CHIEF JUSTICE ROBERTS: welcome. 15 (Laughter.) 16 MR. LETTER: 17 Tell her she's that along to her, Mr. Thank you. I'll pass Chief Justice. 18 I want to hit just a couple of points, 19 but one of the ones I want to hit right upfront 20 is something that -- that General Underwood 21 said and I think bears some emphasis, which is 22 the -- remember that the -- the census that 23 we're talking about here is the decennial 24 census provided for in the Constitution of 25 utmost importance to the House of Heritage Reporting Corporation Official - Subject to Final Review 78 1 Representatives. 2 That provision obviously is the ground 3 -- has to be the grounding for the statute that 4 is being applied here. 5 undermines the accuracy of the actual 6 enumeration is immediately a problem. 7 there's been a lot of discussion here, quite 8 properly, because of the way this case has been 9 briefed, about will this help the Justice And so anything that So 10 Department and the Voting Rights Act, et 11 cetera. 12 point, but it is not why the Census Bureau 13 carries out an actual enumeration, which goes 14 to the apportionment of representatives among 15 the states and then distribution within the 16 states. 17 And that may be a very important So if there is something that 18 undermines the accuracy of that count, even if 19 it's important for other reasons, that is both 20 a statutory violation and, therefore, a 21 violation of the Administrative Procedure Act 22 and a constitutional violation. 23 Now, this Court does not have to reach 24 the constitutional question because it is a 25 statutory violation. I -- Heritage Reporting Corporation Official - Subject to Final Review 79 1 JUSTICE ALITO: But do you think that 2 any decrease in the actual count, if -- if you 3 add any question beyond counting people, and 4 that decreases the actual count to any degree, 5 then that additional question is improper? 6 MR. LETTER: Justice Alito, I -- I'm 7 sure that the -- the Court would find there is 8 a de minimis exception. 9 about that. 10 11 There is no doubt So where this Court would draw that line, I don't know. What I -- I can tell you, and I'm -- 12 I'm sure you know this but I will just -- from 13 the -- this Court said in the Wisconsin case 14 that -- a question there was could a 15 statistical adjustment be made, and this Court 16 set the standard of what actual enumeration 17 means and it says, "a reasonable relationship 18 to the accomplishment of an actual 19 enumeration." 20 And this discussion about the 21 importance of voting rights data obviously does 22 not bear a reasonable relationship to the 23 accomplishment of an actual -- 24 25 JUSTICE GORSUCH: Mr. Letter, I'm sure you've given this some thought, but -- I know Heritage Reporting Corporation Official - Subject to Final Review 80 1 you have. 2 In terms of assessing what a 3 reasonable relationship is, what do we do with 4 the history and the fact that this question has 5 been on for what a long time was the only form 6 in the census through almost all of our 7 history, and it continues to be asked today in 8 the long form or in the ACS. 9 It's not like this question or anybody 10 in the room is suggesting the question is 11 improper to ask in some way, shape, or form. 12 And what we do as well with the 13 evidence of practice around the world and 14 virtually every English-speaking country and a 15 great many others besides ask this question in 16 their censuses? 17 consideration, thought -- thoughtful 18 consideration to those questions. 19 20 21 So I'm sure you have given MR. LETTER: Absolutely, Your Honor, although I can tell you also have. First of all, I don't know if the 22 other countries that are listed, for instance, 23 in the U.N. recommendations have an actual 24 Enumeration Clause written into their 25 constitution that is of paramount importance. Heritage Reporting Corporation Official - Subject to Final Review 81 1 So I'm not sure that, when -- when the 2 U.N. made that recommendation, that that 3 matters for the United States. 4 Second, Your Honor, the -- if -- there 5 -- there are other factors that would undermine 6 actual enumeration. 7 There is no evidence in the record 8 here, as the Chief Justice pointed out, we're 9 dealing with a record here. It may be that 10 some people find questions about gender now 11 offensive or maybe in the future that will be 12 deemed offensive and that would undermine the 13 accuracy of the -- of the actual enumeration. 14 We don't have any evidence on that. 15 What we do know, Your Honor, as you 16 quite correctly pointed out, we have a history 17 of this, but what we do know now is the experts 18 right now say that this question, if it is put 19 on the -- the form, which, remember, is the 20 only form right now for the actual enumeration, 21 that will cause -- that will make the 22 undercount worse. 23 JUSTICE GINSBURG: Mr. Letter, the -- 24 Congress has the primary control over what the 25 census will be, not the executive, and Congress Heritage Reporting Corporation Official - Subject to Final Review 82 1 has been alerted to this citizenship question 2 for some time, and it has done nothing about 3 it. 4 So one question is who should decide? 5 Congress is silent. 6 in? 7 8 MR. LETTER: question, Your Honor. 9 Should the Court then step It's a very fair Two responses: One, I think that this is a very 10 ironic point for General Francisco to be 11 making. 12 his brief Congress knows about this. 13 should do something. 14 take judicial notice of this because it's in 15 the public record. He has said -- he has emphasized in 16 Congress This -- the Court can The Secretary of Commerce has been 17 called before Congress to explain what he did 18 here, and Assistant Attorney General Gore, the 19 one, you know, about the -- the author of the 20 -- the request by the Justice Department has 21 been called to Congress. 22 They have been declining to answer. 23 They're not giving Congress the information it 24 requests because they say there's litigation 25 going on. And, I repeat, this is a matter of Heritage Reporting Corporation Official - Subject to Final Review 83 1 public record. 2 So it's ironic for General Francisco 3 to be saying: 4 that's for Congress, obviously the House needs 5 the information. 6 This is for Congress. Well, if And yet we're being told we can't have 7 the information because it's -- because it's 8 only for you. 9 CHIEF JUSTICE ROBERTS: I thought all 10 the information available, as I understand it, 11 leads to only one answer. 12 that answer sufficient for them to take 13 whatever action they consider appropriate? 14 15 16 MR. LETTER: And so why isn't The -- I'm sorry, Chief Justice. CHIEF JUSTICE ROBERTS: Well, we've 17 been told there was no basis for the Secretary 18 to make any decision, other than the 19 recommendation that was submitted to him by the 20 Bureau, because that's the evidence. 21 the scientific evidence. 22 room for the exercise of any discretion. 23 That's And so there's no So what information -- what more 24 information does the Congress need to address 25 the problem? Heritage Reporting Corporation Official - Subject to Final Review 84 1 MR. LETTER: 2 you -- you decided otherwise. 3 decide? 4 provides not -- his memo provides not much 5 information. 6 have been asking these key questions. 7 We want to know what -- As we know, his -- his -- his letter This -- the Justices here today So we want to know what made you do -- 8 what made you decide this? 9 political decision? 10 Why did you JUSTICE KAVANAUGH: Was this just a Well, I thought 11 Justice Ginsburg's question went more to why 12 doesn't Congress prohibit the asking of a 13 citizenship question in the same way that 14 Congress has explicitly provided that no one 15 can be compelled to provide religious 16 information? 17 MR. LETTER: Right. And so that is 18 something that Congress could attempt to do, 19 yes, and that is one of the things that would 20 be -- would be asked about. 21 But, as we know, that doesn't stop 22 this Court from interpreting the statute and 23 the Constitution. 24 25 As we know, this Court is the final word on the Constitution. Heritage Reporting Corporation Official - Subject to Final Review 85 1 JUSTICE KAVANAUGH: On the -- on the 2 statute I had one question, which is you make a 3 good first principles point about enumeration 4 being the purpose of the census. 5 But it turns out that the census, as 6 you know, has been used for lots of other 7 statistical and demographic collection purposes 8 throughout -- throughout our history. 9 So it's not just for enumeration. And 10 the statute that Congress has passed gives huge 11 discretion to the Secretary how to fill out the 12 form, what to put on the form. 13 to think about enumeration when the history and 14 the statute suggests that there is more than 15 just enumeration that's at stake here? 16 MR. LETTER: So how are we Your Honor is exactly 17 right. 18 census data, are used for all sorts of things 19 that are very important. 20 Bureau does things way beyond just the 21 decennial census actual enumeration. 22 The -- the census information, the Remember, the Census But, again, this Court was very clear, 23 and, by the way, the other thing is General 24 Francisco has argued no review. 25 reviewed how the actual enumeration has taken This Court has Heritage Reporting Corporation Official - Subject to Final Review 86 1 place, I think, about five times. 2 3 So there is clearly judicial review here. 4 JUSTICE KAVANAUGH: Well, assuming 5 there is review and assuming it's arbitrary and 6 capricious, as you know it's deferential. 7 MR. LETTER: 8 JUSTICE KAVANAUGH: 9 Yes. And the question I think here is a policy judgment that it's more 10 important to get accurate citizenship 11 information even at the expense, potentially, 12 of a slight decrease, potentially, in response 13 rates. 14 And the question is: Given the 15 statutes, why does that judgment fall below the 16 standard of reasonableness in assessing the 17 different policy considerations? 18 MR. LETTER: Our position is that, 19 one, the Justice Department can get this 20 information elsewhere, as we know. 21 But, two, you can't undermine the 22 accuracy of the actual enumeration in order to 23 get information -- 24 JUSTICE KAVANAUGH: 25 MR. LETTER: So -- -- for the Voting Rights Heritage Reporting Corporation Official - Subject to Final Review 87 1 Act. 2 JUSTICE KAVANAUGH: -- the 3 constitutional backdrop, I think, if I'm 4 translating your argument, means that anything 5 that would undermine the enumeration is 6 impermissible and unreasonable? 7 MR. LETTER: I believe so, Your Honor. 8 And the only thing -- the only addition I would 9 make to that is, as I said to Justice Alito, 10 undoubtedly there is a de minimis 11 determination. 12 But, again, this Court is -- this 13 Court is the expert on the constitution. 14 you. 15 16 17 18 CHIEF JUSTICE ROBERTS: Thank you, counsel. Four minutes, General Francisco. REBUTTAL ARGUMENT OF GEN. NOEL J. FRANCISCO 19 ON BEHALF OF THE PETITIONERS 20 GENERAL FRANCISCO: 21 22 Thank thank you. Mr. Chief Justice, I would like to make four points: First, on the disclosure avoidance 23 protocols, we discussed those at our reply 24 brief at page 17. 25 those protocols apply to all census data, The bottom line is that Heritage Reporting Corporation Official - Subject to Final Review 88 1 including on sex, on age, on race, that the 2 Department of Justice uses to construct citizen 3 voting age population. 4 It has never been a problem before. 5 There is no reason to think it will be a 6 problem now. 7 And I -- in fact, I think in the trial 8 record, Dr. Abowd testified how it would not be 9 a problem. 10 Second, I'd like to point the -- Your 11 Honors to the key differences memo at page 148 12 of the Joint Appendix, the very -- the one full 13 paragraph, the first sentence says, "The 14 relative quality of Alternative C versus 15 Alternative D will depend on the relative 16 importance of the errors in the administrative 17 data, response data, and imputations." 18 goes through and discusses the various types of 19 errors. 20 It then And its final conclusion is 21 "Unfortunately, the Census Bureau cannot 22 quantify the relative magnitude of the errors 23 across the alternatives." 24 25 Third, in terms of response rates, the administrative record shows that the Census Heritage Reporting Corporation Official - Subject to Final Review 89 1 Bureau staff believed that there would be a 2 5.1 percent decrease in the initial response 3 rates from adding the citizenship question. 4 But as Secretary Ross points out in 5 his memorandum, that doesn't take into account 6 follow-up operations. 7 drop before follow-up operations. 8 doesn't disaggregate between those who are 9 going to be put off by the citizenship question That's the response rate And it 10 itself, as opposed to those who are put off by 11 the larger macro environment because they don't 12 trust the government or don't like this 13 particular administration. 14 And that, I think, is one of the 15 reasons why Dr. Abowd concluded in the 16 testimony that Justice Breyer cited that 17 "there's no credible, quantitative evidence 18 that the addition of a citizenship question" -- 19 JUSTICE SOTOMAYOR: I -- 20 GENERAL FRANCISCO: -- "will affect 21 the accuracy of the count." 22 JUSTICE SOTOMAYOR: And -I thought that 23 Dr. Abowd stated and the district court found 24 that the follow-up process was, at best, 25 riddled with a number of -- of inadequacies, Heritage Reporting Corporation Official - Subject to Final Review 90 1 and that it wouldn't be adequate enough to take 2 care of the shortfall. 3 GENERAL FRANCISCO: Well, we can 4 debate about whether it would be adequate 5 enough, but in order to say that the final 6 self-response rate would drop by 5.1 percent, 7 you have to conclude that it's zero percent 8 accurate. 9 10 And I don't think that there's any basis in the record to conclude that it's -- 11 12 JUSTICE SOTOMAYOR: accuracy -- 13 14 So how much GENERAL FRANCISCO: accurate. 15 -- zero percent So -JUSTICE SOTOMAYOR: -- would be -- 16 let's assume it were 5.8 or something close to 17 it. Is that de minimis to you? 18 19 GENERAL FRANCISCO: Your Honor, I JUSTICE SOTOMAYOR: -- think -- 20 21 Is that -- inconsequential? 22 GENERAL FRANCISCO: -- I think that 23 that is largely an impossible question to 24 answer. 25 Constitution itself. That is not built into the There is always going to Heritage Reporting Corporation Official - Subject to Final Review 91 1 be a tradeoff. 2 The long form census, for example, 3 caused a drop in self-response rates relative 4 to -- to the short form by, I believe, around 5 10 percent. 6 7 But my final point is one that Mr. Letter alluded to, and that is under -- 8 9 JUSTICE SOTOMAYOR: That's why you keep -- 10 -- my friend's -- 11 JUSTICE SOTOMAYOR: -- the short form. 12 GENERAL FRANCISCO: Right, Your Honor. 13 And under my friend's on the other side's 14 position, you are effectively empowering any 15 group in the country to knock off any question 16 on the census if they simply get together and 17 boycott it. 18 There are many people in this country 19 who might find the sex question objectionable 20 because it limits individuals to a binary 21 choice. 22 together in one state and said we're going to 23 boycott the census -- If a large number of people got 24 JUSTICE SOTOMAYOR: General -- 25 GENERAL FRANCISCO: -- as long as you Heritage Reporting Corporation Official - Subject to Final Review 92 1 include -- 2 JUSTICE SOTOMAYOR: General -- 3 GENERAL FRANCISCO: -- that sex 4 question you are effectively empowering -- 5 6 GENERAL FRANCISCO: -- to knock that JUSTICE SOTOMAYOR: -- suggesting -- off -- 9 10 11 General, are you -- 7 8 JUSTICE SOTOMAYOR: CHIEF JUSTICE ROBERTS: Justice Sotomayor. 12 JUSTICE SOTOMAYOR: Are you suggesting 13 that Hispanics are boycotting the census, 14 that -- 15 GENERAL FRANCISCO: Not -- 16 JUSTICE SOTOMAYOR: Are you suggesting 17 they don't have, whether it is rational or not, 18 that they don't have a legitimate fear? 19 GENERAL FRANCISCO: 20 slightest, Your Honor. 21 the risk -- Not in the I am suggesting that 22 JUSTICE SOTOMAYOR: So -- 23 GENERAL FRANCISCO: -- of my friend's 24 theory on the other side is that it countenance 25 as precisely that type of coordinated behavior Heritage Reporting Corporation Official - Subject to Final Review 93 1 that would empower groups to knock off any 2 question of the census that they found to be 3 particularly objectionable. 4 5 Mr. Chief Justice, unless the Court has further questions? 6 7 CHIEF JUSTICE ROBERTS: done. 8 9 GENERAL FRANCISCO: 12 13 Thank you, Your Honor. 10 11 We're all CHIEF JUSTICE ROBERTS: General. Thank you, The case is submitted. (Whereupon, at 11:28 a.m., the case was submitted.) 14 15 16 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation 94 0 0.36 [1] 73:16 77 [1] 3:17 1 1 [2] 67:18 68:2 10 [2] 29:8 91:5 10:06 [2] 1:14 4:2 100 [3] 11:23 76:8,9 11:28 [1] 93:12 110 [1] 60:20 13 [1] 16:19 14 [1] 18:13 141(a [2] 8:17 13:13 148 [4] 19:3 20:14 28:8 88:11 17 [1] 87:24 18 [1] 75:6 18-966 [1] 4:4 1820 [1] 53:14 1840 [1] 53:14 1950 [1] 4:21 1960 [3] 6:16,20 7:22 2 200 [3] 4:14,25 5:6 2000 [3] 5:17 13:20 57:19 2005 [1] 53:16 2010 [1] 57:18 2018 [2] 4:11 32:16 2019 [1] 1:10 2020 [2] 43:22 50:14 22 [9] 16:24 17:5,19 45:2,3 52:21 67:14,15 72:1 22.2 [5] 23:17,23 27:17 29:2,19 22.6 [2] 47:6 68:6 23 [1] 1:10 25 [1] 29:9 3 30 [1] 23:16 32 [1] 66:4 34 [1] 66:16 35 [3] 23:23 29:4 36:20 38 [1] 33:23 4 4 40 [1] 18:14 43 [1] 3:8 [1] 3:4 5 5.1 [4] 55:23 57:3 89:2 90:6 5.8 [2] 37:23 90:16 500,000 [1] 38:11 55-mile-an-hour [1] 9:22 555a [1] 28:19 556a [1] 29:16 6 6(c [14] 18:25 35:5 36:8,10,18 38: 22 39:8,11 40:7,12,20,21 41:5 64: 15 60 [2] 9:21 30:21 600 [1] 63:6 65 [2] 3:12 4:21 65-odd-plus [1] 5:13 Official - Subject to Final Review add [10] 5:14 8:14 16:12 22:11 26: 7 5,8 39:1 43:21 49:10 79:3 8 87 [1] 3:20 882 [1] 49:5 884 [1] 49:5 9 9.5 [1] 38:1 95th [1] 58:18 98 [19] 23:19 24:4,7 25:22 27:2,7, 17 29:2,23 40:1 41:15 47:11,13 48:2,7,9,21,22 49:7 99.5 [1] 24:8 A a.m 4:2 93:12 ability [2] 56:24 66:1 able [3] 26:24 27:1 38:4 above-entitled [1] 1:12 Abowd [10] 16:11 17:3,19 49:18 [3] 1:14 52:8 61:12 68:3 88:8 89:15,23 Abowd's [2] 49:5 60:10 Absolutely [1] 80:19 accept [1] 72:25 accomplishment [2] 79:18,23 accord [1] 51:1 accordance [1] 51:2 according [1] 37:16 account [1] 89:5 accuracy [28] 8:6,13,16 13:19 14: 8 23:19 25:22 27:18 29:3,23 40:1 41:15 47:13,14 48:3 49:21 55:16 65:14 66:21,22 67:11 68:21 78:5, 18 81:13 86:22 89:21 90:12 accurate [34] 17:7,14,25 21:11 22: 12 23:9 26:14 27:12,21 35:7 38: 18 41:1 47:11 48:7 49:9,12 54:21, 21 64:8 65:18 66:7,20 67:1,8,9,25 68:17,25 69:10 71:23 72:21 86:10 90:8,14 accurately [1] 52:21 acknowledge [2] 66:5,17 acknowledged [1] 31:8 across [3] 19:6 20:17 88:23 ACS [25] 5:21 35:2 39:20 40:16,17, 21 41:6 45:16 53:16 56:3,16,17 57:19 59:12,20,23 64:17,23 71:15, 21 72:19 74:13,16 76:16 80:8 Act [15] 31:12 33:3,8,12 43:12 44: 11 65:19 69:19,22 70:11,14 72:8 78:10,21 87:1 acted [1] 6:10 acting [2] 12:20,20 action [5] 8:23,24,25 11:25 83:13 actions [2] 12:10 53:4 activity [2] 9:13 32:4 actual [24] 23:18 26:1,1 27:17 29:1, 12,23,23 35:7 59:15 78:5,13 79:2, 4,16,18,23 80:23 81:6,13,20 85:21, 25 86:22 actually [9] 23:16 27:15 36:12 43: 11 45:24 50:9 74:15,22 75:12 added [2] 66:5,19 adding [14] 4:25 18:4 21:7 24:21 31:17 34:11 44:14 65:25 66:11 67: 13 70:9 75:1,14 89:3 addition [4] 13:16 49:20 87:8 89: 18 additional [1] 79:5 address [6] 18:17,23 75:15,24,25 83:24 addressed [1] 13:15 adequate [2] 90:1,4 adjustment [1] 79:15 administration [1] 89:13 administrative [61] 15:6,8 16:16, 23 17:11,17 18:1,5,7 21:6,8 22:13 23:1,17 24:24 27:14 28:20,21,23 29:4 31:14 34:8 35:4,24 36:16,17 37:1,5,25 38:3,5 39:17,23,24 40:4, 25,25 41:14 45:13,21 46:10 47:9, 16 49:8 51:24 52:9 59:21 64:7 65: 16 66:1,7,23 67:16,19,24 68:8 72: 19 74:19 78:21 88:16,25 affect [4] 38:7 49:21 53:20 89:20 age [14] 29:10 33:13,16 36:14 37:9 40:23 41:2,7 44:19 55:5 61:3 70: 21 88:1,3 agency [1] 13:11 agree [2] 10:3 54:9 ah [1] 35:3 ahead [6] 47:3 57:15 58:11 69:16 75:21 76:22 aided [1] 45:9 AL [8] 1:3,6 2:8,11 3:8,12 43:18 65: 9 Alabama [2] 11:7 13:3 alerted [1] 82:1 ALITO [24] 46:25 47:4,25 51:20 52: 4 55:18 56:11,14,19 57:14 58:6 61:6,15,20 68:4,10,11,22 69:4 76: 19,23 79:1,6 87:9 alluded [1] 91:7 almost [1] 80:6 alone [2] 18:8 24:22 already [3] 37:21 40:18 61:12 Alternative [15] 21:3,4,4 23:20,21 24:17,21,23 31:14,15 34:7 36:23 63:18 88:14,15 alternatives [6] 19:7,8 20:18,18 32:6 88:23 alters [1] 76:12 although [3] 26:22 43:23 80:20 American [8] 6:21 7:1,19 29:8 33: 22 36:13 39:10 40:14 amicus [3] 2:14 3:16 77:5 among [2] 58:3 78:14 amount [1] 33:18 analogy [1] 10:5 analysis [3] 12:7 57:6 58:17 analyzed [1] 31:15 another [5] 4:14 6:1 53:14 56:18 73:21 answer [28] 11:24 17:17 18:10 20: 3,12 27:24 28:3,9 29:18 36:2 38:2 42:19 45:5,20 46:12,13,15 47:8 49:11 50:2 64:14 68:7,14 70:2 82: 22 83:11,12 90:24 answering [2] 73:11,20 answers [7] 15:20 23:19 27:17 29: 1,23 41:13 47:11 anybody [1] 80:9 APA [3] 6:10 8:19 44:4 appear [2] 6:20 30:19 APPEARANCES [1] 2:1 Appendix [7] 19:2 20:15 28:17 29: 16 49:5 60:23 88:12 applied [1] 78:4 applies [5] 40:12,14,15,21,21 apply [1] 87:25 apportionment [1] 78:14 appropriate [1] 83:13 approximation [1] 76:15 April [1] 1:10 arbitrary [6] 48:7,14 52:5 68:18 75: 17 86:5 aren't [3] 6:8 51:24 68:8 argued [4] 59:14 71:20 72:13 85: 24 argument [23] 1:13 3:2,5,9,13,18 4:4,7 10:4 13:12 30:15,19 43:17 44:25 47:6 55:21,22 59:17 65:7 68:6 77:3 87:4,18 around [2] 80:13 91:4 arrest [1] 14:12 Article [1] 9:18 articulated [1] 33:2 asks [1] 35:22 asserted [3] 65:24 66:10 67:13 assertion [1] 65:13 assessing [2] 80:2 86:16 assistant [2] 42:15 82:18 associated [1] 50:17 assume [2] 9:6 90:16 assuming [3] 72:11 86:4,5 attempt [1] 84:18 Attorney [3] 42:9,15 82:18 attributable [3] 6:9 10:15 73:13 attribute [2] 12:13 58:21 Australia [1] 53:10 author [1] 82:19 available [6] 36:16 39:25 40:4,24 50:24 83:10 avoidance [3] 75:12 76:2 87:22 aware [1] 73:6 awfully [1] 24:4 B back [21] 6:14 7:7 15:20 18:24 28: 4,13 30:8 34:17,18 41:23 42:7,10, 18 46:17 52:16 55:1,6 57:16 60:9 68:5 69:13 backdrop [1] 87:3 BARBARA [3] 2:6 3:6 43:17 based [7] 8:25 12:14 33:21 56:1 61:21 66:24 67:24 basic [1] 20:24 basically [1] 7:20 Heritage Reporting Corporation Sheet 1 0.36 - basically 95 Official - Subject to Final Review basis [8] 8:18 9:9 13:13 24:11 43: Bureau's [10] 36:22 38:4 59:20 63: 4 57:10 83:17 90:10 bear [2] 50:11 79:22 bears [1] 77:21 beat [2] 27:2,6 become [1] 66:19 bedrooms [1] 13:23 beginning [1] 34:10 behalf [14] 2:5,8,10,12 3:4,7,11,15, 20 4:8 43:18 65:8 77:4 87:19 behavior [3] 9:6,10 92:25 believe [7] 43:10 51:5 62:15 73:12 74:13 87:7 91:4 believed [1] 89:1 below [2] 18:13 86:15 benefit [1] 33:6 benefits [3] 30:10 32:5,11 besides [1] 80:15 best [5] 6:13 62:12,13 72:21 89:24 better [11] 5:6 20:5 21:19 26:25 30: 5 45:1 46:9 63:11 68:18 69:1,5 between [8] 13:9,18 38:2 47:12 48:1 61:25 74:11 89:8 beyond [3] 55:9 79:3 85:20 binary [1] 91:20 bind [1] 72:24 bird [2] 25:21 41:20 birth [2] 41:2 61:1 bit [5] 6:15 26:9 27:12 68:23 71:25 block [4] 75:5,13 76:3,8 block-by-block [2] 71:11,13 block-level [1] 72:18 blocks [1] 76:13 board [1] 45:10 boil [1] 41:9 Both [2] 18:20 78:19 bottom [9] 24:15,17 25:1,7 26:14, 15,17 68:1 87:24 boycott [2] 91:17,23 boycotting [1] 92:13 break [2] 73:11 74:16 break-off [2] 73:15 74:12 breaks [1] 9:18 BREYER [38] 14:6,9,16,21,25 15:2, 11 16:3,9,19 17:2,10,16 18:10,20 19:13,16,25 20:8 27:23 28:3 31: 16 36:9 48:16,20,25 49:24 60:19, 22 61:3,8,17 62:18,21,24 63:2,14 89:16 brief [9] 16:25 49:25 51:23 66:4,17 72:10 75:7 82:12 87:24 briefed [1] 78:9 briefs [1] 30:15 brings [1] 60:8 build [1] 26:17 built [1] 90:24 bunch [1] 73:14 Bureau [44] 7:14,23 15:18 18:4 19: 3 20:3 23:3,5 24:16 25:2 26:11 28: 20,22 29:5,11,17,20 35:22 37:17 38:13,19 45:19,25 47:22 48:4 50: 19 53:1,4 60:1 63:22 66:18 67:17 68:23,24 72:17 75:4 76:5,9,12 78: 12 83:20 85:20 88:21 89:1 22 66:1,11 68:1 74:5 75:11 76:1 but-for [1] 12:11 C cabinet calculus [1] 38:15 call [1] 42:8 called [3] 33:12 82:17,21 calls [3] 10:12,21 12:16 came [3] 1:12 22:21 34:2 Canada [1] 53:10 cannot [5] 19:5,14 20:16 39:9 88: [1] 43:1 21 capricious [6] 48:8,15 52:5 68:18 75:17 86:6 care [1] 90:2 careful [1] 53:24 carefully [1] 15:17 carries [1] 78:13 Case [19] 4:4 10:7 12:8 13:4 15:3, 14,14 45:10 53:22 57:18,23,25 60: 3 71:1 72:10 78:8 79:13 93:11,12 cases [5] 9:5,15 12:23 45:9,9 Catch [1] 72:1 cats [1] 63:3 causal [1] 50:16 causation [2] 9:18,19 cause [10] 10:23 12:1,2,3,6,11 43: 25 58:18 73:20 81:21 caused [2] 10:16 91:3 causes [1] 60:5 cell [2] 10:8,10 census [113] 4:13 5:5,7,17,25 6:25 7:8,14,23 8:4,6,13,15 11:16,17,20 13:20 14:7 15:18 16:13 17:6,18 18:3 19:3 23:6 24:16 25:2 26:3,11 29:11,17 33:14,16 35:14,18 36:15, 22 39:12 40:13,13,22,24 41:7 43: 22 45:5,19,21,25 46:3,24 47:21 48:3 49:10,10 50:14,19 52:22 53: 1,3,4,5,8 55:1,17,25 57:19,21 59: 15,20,25 60:1,4 63:21 64:7 65:25 66:17 67:17 68:1,23,24 70:10 71: 16,23 72:2,3,17 74:4 75:4,11 76:5, 7,9,11,13 77:22,24 78:12 80:6 81: 25 85:4,5,17,18,19,21 87:25 88:21, 25 91:2,16,23 92:13 93:2 censuses [1] 80:16 certain [3] 13:24 31:25 32:2 certainly [5] 14:19 54:7,12 55:2 60:16 certainty [2] 22:6 58:19 cetera [1] 78:11 chain [1] 9:18 challenging [1] 13:6 change [3] 38:3,7 41:3 changes [1] 50:17 CHIEF [47] 4:3,9 9:3,20 10:1 11:11 12:18,25 20:10 37:16 38:12 43:14, 19 44:17 47:2 50:21,23 52:17 54: 22 55:5 64:5,11 65:4,10 69:14,16, 23 70:1,4,5,6 76:22,24 77:2,7,13, 17 81:8 83:9,14,16 87:15,20 92: 10 93:4,6,10 choice [1] 91:21 choose [1] 48:1 chose [2] 27:4 41:18 circumstances [3] 70:20,21 71:2 citation [1] 51:22 cited [1] 89:16 citizen [7] 18:6 29:10 33:12 44:19, 21 64:1 88:2 [11] 35:18 48:23 49:1,2,3, 8 56:5,20 61:25 62:3 76:10 citizenship [77] 4:12 5:1 6:12,13, 15 11:19 13:22 16:15 17:14 18:7 23:22 24:23 27:11 31:11,18 33:15, 17 34:11,15 35:15,22 36:12 37:8 39:1,10 40:17 41:4 43:22 45:1,4 47:8 49:20 50:13,15 53:8,11,13, 21 55:24 56:4,22 57:23 59:13 64: 1 65:14 66:2,8,12,25 67:2,11,16 68:7,15 69:10,21 70:10,14,23,25 71:2,22 72:7 74:6,9,17,22 75:1,5, 10 76:3 82:1 84:13 86:10 89:3,9, 18 Civil [1] 42:15 claim [1] 44:16 claims [1] 6:7 Clapper [3] 10:5,6 12:8 Clappers [1] 12:9 Clause [2] 25:25 80:24 clear [6] 10:6 21:5 29:11 42:8 50:5 85:22 clearly [1] 86:2 clients [3] 10:9,10 73:5 close [1] 90:16 Coalition [3] 2:11 3:12 65:9 coercive [1] 11:1 colleagues [2] 24:15 43:3 collect [2] 53:2 60:3 collected [2] 54:15,17 collection [1] 85:7 combining [2] 39:19,22 come [6] 18:24 27:20 30:21 37:6 43:1 57:16 comes [4] 33:14,16 42:10 56:6 commented [1] 45:23 COMMERCE [5] 1:3 4:5,23 34:21 82:16 common [3] 42:25 54:10 55:2 communicate [2] 10:9,11 Community [8] 6:21 7:1,19 33:22 36:13 39:10 40:14 50:20 commuting [1] 13:22 comparable [3] 55:11 57:22 60: 25 comparative [4] 21:16 22:1,3 74: 7 compare [3] 22:5 57:20 64:20 comparing [2] 22:3 57:18 comparison [4] 45:13 46:4 47:12 57:22 compelled [1] 84:15 competing [1] 41:11 complained [1] 59:11 complaints [3] 59:20,24 71:14 citizens complete [6] 20:3,12 28:22 56:3 58:8 60:15 completing [1] 56:9 compliment [1] 31:5 complying [1] 38:22 conceded [3] 66:2,15 75:6 conclude [3] 38:21 90:7,10 concluded [4] 25:19 32:11 67:17 89:15 concluding [1] 57:2 conclusion [11] 18:3 24:16,17 25: 1 26:15,18 27:20 63:22 68:1 74:5 88:20 conclusions [2] 25:8 31:2 conclusory [1] 30:1 conditions [1] 13:25 confidence [1] 26:22 confident [2] 26:12 47:23 conflict [1] 38:2 confuse [2] 35:16 40:6 Congress [16] 8:10 81:24,25 82:5, 12,12,17,21,23 83:3,4,24 84:12,14, 18 85:10 consider [3] 28:11 44:12 83:13 consideration [2] 80:17,18 considerations [1] 86:17 considered [3] 32:5,6,6 considering [1] 10:2 constant [1] 15:24 constitute [1] 70:19 Constitution [6] 77:24 80:25 84: 23,25 87:13 90:25 constitutional [3] 78:22,24 87:3 construct [2] 37:8 88:2 constructed [1] 23:24 consumers [1] 11:3 contained [1] 43:23 contaminated [1] 67:6 contest [1] 57:13 contested [1] 57:11 context [4] 5:13 50:5 54:2 70:15 continues [1] 80:7 contrary [6] 16:6 44:8 49:15,17 50: 3 52:20 contrast [1] 74:18 contrived [1] 42:13 control [4] 22:20 61:5 62:3 81:24 controlled [5] 60:12,17 61:13 63: 5,9 coordinated [1] 92:25 core [1] 53:3 correct [8] 18:2,11 52:4,6,7 55:4 56:14 64:4 correctly [1] 81:16 cost [4] 24:20 46:17,22 48:11 costs [2] 32:7,12 couldn't [5] 23:8 27:20 34:7 36:12, 14 counsel [3] 58:5 76:25 87:16 count [14] 7:25 35:7 49:22 54:18, 20,24 55:13 60:6 64:25 75:9 78: 18 79:2,4 89:21 countenance [1] 92:24 counting [4] 26:1,2 29:12 79:3 Heritage Reporting Corporation Sheet 2 basis - counting 96 Official - Subject to Final Review countries [4] 53:7,9 54:3 80:22 country [4] 54:13 80:14 91:15,18 couple [5] 26:21 28:17 36:6 57:9 77:18 course [4] 19:17 29:15 41:3 48:22 COURT [26] 1:1,13 4:10 10:14 12: 8 13:15 43:20 55:15 65:11 71:20 77:8 78:23 79:7,9,13,15 82:5,13 84:22,24 85:22,24 87:12,13 89:23 93:4 court's [4] 4:15 9:15 12:23 55:22 courtesy [1] 77:11 courts [4] 8:10,17 13:13 14:1 cover [1] 37:7 covered [1] 68:12 covering [1] 37:5 create [2] 26:23 48:4 created [1] 41:16 credible [5] 49:19 50:9 51:6,6 89: 17 critical [5] 33:11 34:1 44:20 65:23 76:18 cross [1] 38:17 curiae [3] 2:14 3:17 77:5 currently [1] 76:17 CVAP [6] 33:13,14,17 34:2 37:4 44: 19 D D.C [3] 1:9 2:4,12 dah-dah-dah [1] 60:24 DALE [3] 2:9 3:10 65:7 data [40] 18:6,8 24:23 28:23 31:11 37:4 38:16 41:25 42:17 45:16 47: 9 59:15 60:1,3 61:12 63:5 64:20 65:14,18 66:23 67:5,9 69:21 70: 22 71:3,6,15,21,23 72:7,18,19 74: 22 76:14,16 79:21 85:18 87:25 88: 17,17 database [3] 34:1 37:6,15 date [2] 41:2 61:1 day [1] 8:14 de [3] 79:8 87:10 90:17 deal [1] 61:11 dealing [2] 70:15 81:9 debate [1] 90:4 decades [1] 6:17 decennial [2] 77:23 85:21 decide [4] 22:21 82:4 84:3,8 decided [2] 43:21 84:2 decision [16] 4:18 13:14 18:16 28: 15,16 30:20,22 32:16 44:4 65:12, 22 67:20 70:4 75:17 83:18 84:9 decisional [1] 75:16 decline [7] 43:25 46:22 57:13 58:1, 3 61:20,24 declined [3] 10:8,10 45:25 declining [1] 82:22 decrease [5] 31:19,20 79:2 86:12 89:2 decreases [1] 79:4 deemed [1] 81:12 deferential [1] 86:6 defined [1] 50:9 degree [3] 58:19 62:14 79:4 demographic [9] 6:24 7:3,16 8:4 13:17 54:25 60:25 76:13 85:7 DEPARTMENT [31] 1:3 2:4 4:5, 22 31:10 32:23 33:1,24 34:10 36: 21,24 37:2 38:20 42:4,5,7,10 43:8, 11 45:8,15,22,24 46:5 65:15 74: 23 76:16 78:10 82:20 86:19 88:2 depend [1] 88:15 depends [1] 66:22 depress [3] 7:24 54:20 55:13 depressing [1] 54:5 described [1] 11:17 detailed [1] 13:21 deter [1] 73:24 determinate [1] 11:1 determination [2] 8:18 87:11 determine [2] 8:11 14:3 determined [2] 6:11 66:18 detriment [1] 44:1 develop [2] 68:25 72:18 deviate [1] 25:4 DHS [5] 34:14,14,15 42:6,6 differ [4] 56:21,22,23,23 difference [2] 74:7,11 differences [3] 21:15 23:3 88:11 different [10] 5:19 22:2 37:6,7 48: 12 51:17 59:8 61:16,19 86:17 differential [1] 64:2 difficult [1] 73:19 direct [3] 15:7 16:14 18:15 directly [2] 13:4 25:17 disaggregate [3] 58:17 61:23 89: 8 disaggregating [1] 58:14 disagree [1] 22:25 disclose [2] 13:6 76:6 disclosure [4] 13:9 75:12 76:1 87: 22 discount [1] 44:9 discover [2] 16:14 49:12 discretion [3] 6:11 83:22 85:11 discretionary [1] 52:25 discuss [3] 35:23 43:2,3 discussed [2] 44:24 87:23 discusses [1] 88:18 discussion [3] 28:19 78:7 79:20 dismiss [1] 44:9 disproportionate [1] 55:14 distinguishing [1] 61:25 distribution [1] 78:15 distributive [1] 55:16 district [4] 4:14 55:22 71:4 89:23 districts [2] 70:19 71:8 Division [1] 42:16 dixit [1] 31:2 documents [1] 66:24 dogs [1] 62:24 doing [1] 60:4 DOJ [8] 34:7,10,17,18,22,25 35:21, 22 done [5] 5:22,22 30:16 82:2 93:7 doubt [3] 9:8 11:12 79:8 doubts [1] 35:12 DOUGLAS [3] 2:12 3:14 77:3 down [5] 27:20 28:5 31:5 41:9 71: 17 downside [1] 31:17 draw [2] 71:8 79:9 drawing [3] 45:10 70:18 71:3 driving [1] 64:2 drop [3] 89:7 90:6 91:3 dropped [2] 6:16 7:14 dropping [1] 6:18 during [2] 44:24 47:5 ET [9] 1:3,6 2:8,11 3:8,12 43:18 65: 9 78:10 ethnicity [1] 61:4 evaluating [1] 8:18 even [16] 11:8 12:9,10,22 16:14 18: 5 36:12 38:24 55:16 60:5 64:16 69:7 75:2,15 78:18 86:11 event [1] 57:15 eventually [1] 24:19 everybody [1] 5:14 everybody's [1] 21:5 everyone [1] 57:25 E everything [3] 15:24 22:23 33:14 each [5] 14:2 21:10 22:5 57:22,25 evidence [32] 6:13 16:5,6 43:6,9, earlier [2] 69:18 74:25 24 44:7,25 49:20 50:3,7,10,12,24 education [1] 56:23 51:7,17 52:20 54:19 55:4,12 57: effect [6] 7:23 11:1 44:7,10 51:3 10 58:13 65:22 67:3,12 74:19 80: 74:21 13 81:7,14 83:20,21 89:17 effectively [2] 91:14 92:4 evidentiary [1] 18:23 efficient [1] 26:2 evolving [1] 28:21 effort [1] 61:5 exactly [2] 21:23 85:16 eight [1] 74:15 examined [1] 54:3 either [7] 16:21 41:12 45:4,9 54:3 example [2] 70:25 91:2 66:16 72:18 examples [4] 14:24 18:13,14,14 element [1] 44:20 Except [3] 21:13 33:17 72:2 elements [2] 33:11 50:16 exception [2] 33:15 79:8 eliminate [2] 29:17 30:2 excluding [1] 53:14 elsewhere [1] 86:20 executive [1] 81:25 eminently [1] 7:11 exercise [1] 83:22 emphasis [1] 77:21 existed [3] 23:18 41:14 61:12 emphasized [1] 82:11 existing [3] 45:21 66:23 72:19 empirical [1] 57:9 expand [1] 25:17 empower [1] 93:1 expect [3] 49:2 63:7 68:14 empowering [2] 91:14 92:4 expense [1] 86:11 enable [1] 62:15 expert [3] 18:11 33:19 87:13 encountering [1] 74:17 experts [4] 26:11 51:16 60:2 81: end [1] 8:14 17 ended [1] 39:7 experts' [2] 25:6,7 enforcement [11] 31:12 33:9,12 explain [5] 33:4,7 61:24 76:4 82: 43:13 44:15,19,21 46:21 65:20 69: 17 20 72:8 explains [1] 20:16 engage [1] 9:9 explanation [4] 30:22 65:21 73: English-speaking [1] 80:14 21 74:6 enough [13] 22:22 35:2,25 37:11 explanations [1] 63:18 50:7 51:1,4,17 62:15 72:23,25 90: explicitly [1] 84:14 1,5 explored [1] 73:22 entire [1] 28:23 extensive [1] 50:18 entirely [1] 32:1 extent [11] 15:7,11 31:25 32:2,3 Enumeration [25] 25:24 35:16 46: 35:6 38:23 39:14,18 58:7 72:6 18,23,23 48:12,19 54:1,5 78:6,13 extra [1] 53:2 79:16,19 80:24 81:6,13,20 85:3,9, extract [1] 47:17 13,15,21,25 86:22 87:5 extrapolate [1] 59:13 environment [1] 89:11 extrapolated [1] 15:21 error [9] 19:10,12 22:4,4 23:25 38: extrapolations [1] 15:23 10 41:17 47:18 68:13 extreme [1] 14:17 errors [9] 19:6 20:17,20,21 22:1,3 extremely [1] 30:15 88:16,19,22 F ESQ [7] 2:9,12 3:3,6,10,14,19 [4] [1] face 25:20 27:3 41:11 45:16 establishing 9:7 estimate [5] 23:22 33:20 47:10 74: fact [23] 5:16 7:7 9:12 10:7,13 12: 10,12 30:20 56:2,20 59:9,14 63:3 7 76:15 71:4,18 72:7,10,20 73:14 74:2 75: estimates [2] 75:4 76:3 25 80:4 88:7 estimation [4] 26:1 27:1 29:6 41: 15 factor [4] 9:5,16 44:12 57:4 Heritage Reporting Corporation Sheet 3 countries - factor 97 Official - Subject to Final Review factors [8] 61:23 62:16,22 63:4,6, 8,17 81:5 fail [1] 11:3 fair [4] 12:12 62:10 72:16 82:7 fairly [2] 6:8 10:15 fall [2] 66:9 86:15 false [1] 30:7 far [1] 55:1 Farm [1] 75:18 fear [3] 10:11,17 92:18 feature [1] 34:1 Federal [1] 66:23 fell [1] 20:1 few [3] 28:10 49:3 58:25 fewer [3] 15:20 27:13 55:24 fifth [1] 5:23 figure [1] 35:19 figured [1] 29:5 fill [4] 33:20 67:14 73:25 85:11 filling [1] 58:20 final [4] 84:24 88:20 90:5 91:6 Finally [1] 42:9 find [7] 17:7 39:4 46:11 63:14 79:7 81:10 91:19 fine [1] 76:23 finish [5] 23:14 25:14 30:14 51:12 52:14 firm [2] 50:7 51:18 first [18] 5:23 6:6 8:22 12:5 15:15 18:23 26:21 28:18 31:23 37:1 42: 25 47:5 65:24 72:5 80:21 85:3 87: 22 88:13 fits [1] 39:4 five [1] 86:1 flatly [1] 44:8 focus [1] 40:9 focuses [1] 33:19 folks [2] 59:12 73:10 follow [1] 17:20 follow-up [4] 31:25 89:6,7,24 following [1] 68:5 forced [1] 13:6 form [49] 4:13 5:21,25 6:25 7:4,4,5, 6,17,18,24 8:11 13:20 14:6,9,10 15:5,5,20 16:13,14 53:5,13,15 56: 10,18 57:18,20,20 58:2,2,8,20 60: 4,17 64:17,25 73:11,23 80:5,8,11 81:19,20 85:12,12 91:2,4,11 formed [1] 33:3 forming [1] 9:24 forms [2] 5:2 58:14 forth [4] 15:22 31:10 42:19 72:9 found [7] 7:23 11:2 31:22,23 50:24 89:23 93:2 Four [2] 87:17,21 FRANCISCO [113] 2:3 3:3,19 4:6, 7,9,17 5:4,10,15,24 6:5,19,23 7:11, 15 8:1 9:14,25 10:3,20,24 11:14 12:4,21 13:2 14:7,15,18,23 15:1, 10 16:2,8,18 17:1,9,15 18:9,18,22 19:15,24 20:2,13 21:13,17,23 22: 9,14,24 23:12,15 24:2,9 25:5,9,13 26:6,20 27:8,25 28:14 29:22 30: 12,17 31:3,7 32:10,15,18,22,25 33: 5,10 34:16,23 35:10,20 36:3,6 37: 13,19 38:8 39:5,16,22 40:3,8,10, 12,19 41:20 42:21 82:10 83:2 85: 24 87:17,18,20 89:20 90:3,13,18, 22 91:12,25 92:3,7,15,19,23 93:8 French [1] 14:14 frequently [1] 70:13 friend's [4] 36:11 91:10,13 92:23 full [3] 63:22 75:9 88:12 fully [4] 31:8,13 38:22 40:14 function [2] 53:3 54:18 fundamentally [1] 56:6 further [1] 93:5 future [2] 72:24 81:11 granularity [1] 75:2 graphs [1] 22:19 great [1] 80:15 greater [3] 24:7 58:3 60:24 ground [1] 78:2 grounding [1] 78:3 group [3] 37:25 70:24 91:15 groups [2] 58:1 93:1 guess [1] 42:19 guidance [1] 53:23 H hand [3] 25:21 41:21 68:16 happened [2] 19:21,22 harassment [1] 11:10 G hard [1] 46:16 gaps [1] 67:14 harm [4] 12:3 60:5 64:24 65:18 gather [1] 15:16 harmed [1] 11:6 gave [2] 44:3 49:16 harming [2] 67:9 74:21 GEN [5] 2:3 3:3,19 4:7 87:18 head [2] 34:22,24 gender [1] 81:10 health [1] 13:24 General [130] 2:3,6 4:6,9,17 5:4,10, hear [3] 4:3 50:1 64:12 15,24 6:5,19,23 7:11,15 8:1 9:14, heard [1] 71:14 25 10:3,20,24 11:14 12:4,21 13:2 hearing [1] 77:11 14:7,15,18,23 15:1,10 16:2,8,18 heart [1] 15:13 17:1,9,15 18:9,18,22 19:15,24 20: held [2] 10:14 11:7 2,13 21:13,17,23 22:9,14,24 23:11, help [7] 31:11 34:11 44:15,18 69: 12,15 24:2,3,9 25:5,9,13 26:6,20 27:8,25 28:14 29:22,24 30:12,14, 17 31:3,7 32:10,13,15,18,22,25 33: 5,10 34:4,16,23 35:10,20 36:3,6 37:13,19 38:8 39:5,16,22 40:3,8, 10,12,19 41:20,22 42:9,15,21 43: 15,16 49:15 63:21 65:5 77:20 82: 10,18 83:2 85:23 87:17,20 89:20 90:3,13,18,22 91:12,24,25 92:2,3, 5,7,15,19,23 93:8,11 General's [1] 64:15 generally [2] 7:16 12:23 generated [1] 47:21 Germany [1] 53:10 gets [1] 76:20 getting [5] 29:1 37:3 41:13 44:21 69:1 GINSBURG [12] 6:14,22 7:9,13,21 32:8,13,17,20,23 45:7 81:23 Ginsburg's [1] 84:11 give [9] 7:14 23:9 28:10,12 34:25 42:11 45:1 48:5 51:4 given [3] 79:25 80:16 86:14 gives [2] 26:19 85:10 giving [2] 22:2 82:23 Gore [1] 82:18 GORSUCH [23] 58:5,10,12 59:1,3 60:13 61:18,23 62:5,10,13 71:9, 12 72:4,12,22 73:2,4,9,18 74:4 75: 1 79:24 got [3] 23:18 39:3 91:21 gotten [1] 59:6 government [17] 6:9 9:1 10:16,21 12:1,13,15 45:3 50:3 57:12,12 66: 2,13,15 71:25 75:5 89:12 government's [2] 12:10 75:8 granular [3] 71:10,17 72:6 19 71:8 78:9 helpful [3] 28:13 70:7,11 high [4] 24:4 26:22 70:23 71:16 highest [1] 34:20 highlight [1] 16:25 highly [3] 13:21 67:22 68:25 hinge [1] 55:22 Hispanic [1] 71:1 Hispanics [4] 44:1 58:4 74:15 92: 13 historical [1] 53:19 history [5] 80:4,7 81:16 85:8,13 hit [2] 77:18,19 HO [22] 2:9 3:10 65:6,7,10 68:10, 22 69:9,15,17,25 70:3,9 71:10 72: 4,16 73:1,4,17 74:4 75:25 77:1 hoc [1] 30:22 holding [1] 15:23 home [2] 11:18,20 Honor [39] 5:5,15,24 6:19 8:2 9:15 10:4,24 12:5 14:18 18:19 20:14 21:14 22:14,25 25:14 26:21 27:8 28:14 31:4 32:16,19,25 33:10 36: 7 39:5 40:19 42:22 74:14 80:19 81:4,15 82:8 85:16 87:7 90:18 91: 12 92:20 93:9 Honors [2] 77:1 88:11 hour [1] 9:21 House [9] 2:13 3:16 13:23 55:7 77: 4,10,12,25 83:4 household [1] 74:9 households [1] 33:23 huge [1] 85:10 I idea [1] 21:7 ideas [1] 43:2 identification [1] 76:7 identified [3] 52:22 54:4 76:11 identifies [1] 50:15 identify [1] 58:18 ignore [2] 22:18 50:1 ignoring [1] 22:22 III [1] 9:19 illegal [6] 8:24 9:6,10,13 32:4 44: 11 illegality [3] 9:4 11:4,10 immediately [1] 78:6 Immigration [3] 2:10 3:12 65:9 impact [3] 8:5,13 14:5 impermissible [2] 44:12 87:6 implications [1] 24:20 importance [4] 77:25 79:21 80:25 88:16 important [6] 55:16,19 78:11,19 85:19 86:10 impossible [1] 90:23 improper [2] 79:5 80:11 improve [7] 31:12 33:8 43:12 46: 20 65:14 66:11 74:22 improvement [3] 45:18 46:4,6 improving [1] 67:10 imputation [8] 29:13 33:21 66:12, 19,22 67:6,8,23 imputations [1] 88:17 impute [1] 29:18 imputed [1] 29:10 inaccurate [2] 67:23 70:13 inaccurately [1] 67:4 inadequacies [1] 89:25 inadequate [2] 44:6 45:17 incident [1] 11:18 inclination [1] 43:5 inclinations [1] 43:2 include [1] 92:1 included [4] 5:16,20,21 55:25 includes [1] 56:4 including [5] 4:23 16:11 71:20 72: 13 88:1 inclusion [1] 53:21 inconsequential [1] 90:21 incorrect [2] 67:7 69:12 increase [2] 31:19,19 Indeed [1] 40:25 individuals [3] 5:11 58:8 91:20 information [37] 8:16 13:18 16:15, 21 23:10 33:25 36:15 37:8 38:4 40:23 43:12 44:22 45:2,4,21 46:3, 8 53:2 54:13,14 64:8 66:8 67:11 70:8 76:6 82:23 83:5,7,10,23,24 84:5,16 85:17 86:11,20,23 informational [2] 8:12 14:4 initial [1] 89:2 initially [2] 5:6 34:12 injured [3] 8:22 11:3,9 injuries [1] 6:8 injury [8] 9:11 10:7,13,15 12:9,12 13:8,10 insertion [1] 50:13 Insofar [2] 28:9 61:8 instance [1] 80:22 Heritage Reporting Corporation Sheet 4 factors - instance 98 Official - Subject to Final Review instantly [1] 25:15 instead [1] 63:6 instrument [2] 54:17 65:3 instruments [1] 40:13 insufficient [1] 36:18 intercept [2] 10:21 12:15 intercepted [1] 10:12 interest [1] 36:9 interfere [1] 53:25 international [1] 53:18 internationally [1] 54:11 Internet [1] 74:13 interpreting [1] 84:22 interrupting [1] 58:13 introduced [1] 37:15 introduces [1] 38:14 introducing [1] 37:17 invalidation [1] 4:15 invoke [1] 46:16 involve [1] 64:24 ipse [1] 31:2 Ireland [1] 53:10 ironic [2] 82:10 83:2 irrational [1] 44:11 irrelevant [1] 24:5 isn't [5] 8:19 61:16 62:11 74:18 83: 2,14,20,25 64:5,11,14 65:4,10,15 68:4,10,11,22 69:4,14,15,16,17,23 70:1,5,6 71:9,12 72:4,12,22 73:2, 4,9,18 74:4,23,25 75:19,20,21,22 76:16,19,22,23,24 77:2,7,13,17 78: 9 79:1,6,24 81:8,23 82:20 83:9,15, 16 84:10,11 85:1 86:4,8,19,24 87: 2,9,15,20 88:2 89:16,19,22 90:11, 15,20 91:8,11,24 92:2,5,9,10,10, 12,16,22 93:4,6,10 Justice's [3] 33:1 36:22,24 Justices [2] 77:11 84:5 justiciable [1] 6:7 justify [1] 22:22 11 77:2,3,7,16 79:6,24 80:19 81: 23 82:7 83:14 84:1,3,17 85:16 86: 7,18,25 87:7 91:7 level [9] 34:20 38:15 71:11,13,16, 17 75:5,13 76:3 light [1] 59:4 likely [6] 9:11 50:16 56:3,15 74:5, 15 likewise [1] 40:15 limitation [1] 61:11 limits [1] 91:20 line [10] 24:16,17 25:1,8 26:14,15, 18 68:1 79:10 87:24 linking [1] 45:20 list [1] 13:10 K listed [2] 18:13 80:22 KAGAN [26] 23:11,14 24:1,3,10 25: listen [1] 38:20 6,10 26:4,8 27:5 28:2,7 29:21,24 lists [1] 13:7 30:13,18 34:5 41:19,22 62:7,9,19 litigation [9] 33:19 34:2 59:11,17 63:20,25 75:20,22 71:20 72:2,24 73:8 82:24 KAVANAUGH [19] 33:4,7 46:13 little [2] 27:12 68:23 51:8,11 52:10,12,14,18 53:6 54:9 live [1] 44:2 75:19,21 84:10 85:1 86:4,8,24 87: living [1] 76:8 2 localities [1] 44:2 Kavanaugh's [3] 41:23 69:15,18 long [19] 6:1,2,25 7:4,5,6,17,18 8: keep [2] 15:9 91:9 11 13:20 53:15 56:18 57:20 58:2 key [4] 21:14 23:2 84:6 88:11 11 73:11 80:5,8 91:2,25 kind [7] 24:5 26:16 42:17 48:15 51: long-form [1] 5:17 isolated [2] 62:11,16 17 65:2 71:25 isolation [1] 62:15 longer [3] 7:5,17 57:23 [3] 91:15 92:7 93:1 knock issue [6] 5:3,19 18:23 36:8 51:22 look [17] 13:20 16:16 17:6,10 19:2, known [2] 7:19 48:9 61:16 21 23:4 28:15,17,18 49:11,16 50: knows [2] 48:2 82:12 it'll [1] 16:20 4 51:14,21 53:20 54:7 itself [8] 5:7 9:1 25:25 36:15 50:15 looked [1] 15:17 L 73:23 89:10 90:25 looks [1] 55:6 lack [1] 66:12 lost [1] 70:1 lacks [1] 66:13 J lot [10] 30:14,18 39:6 47:5 51:22 [3] Joint [5] 19:2 20:15 49:4 60:22 88: language 13:14 31:15 56:24 55:21,21 56:21 59:19 78:7 large [4] 7:2 33:18 70:16 91:21 12 [4] 30:6,7 42:14 85:6 lots largely [1] 90:23 judges [1] 18:13 [1] 70:25 low [2] larger 7:2 89:11 judgment [9] 41:10 51:18,19,19 low-level [1] 34:19 last [1] 67:18 54:2 57:10 64:23 86:9,15 lower [1] 57:3 later [1] 72:2 judgments [1] 64:22 lower-level [1] 34:13 [3] Laughter 31:6 63:13 77:15 judicial [3] 8:8 82:14 86:2 law [2] 9:2 11:4 M jumps [1] 56:19 [1] 30:21 lawyers [270] [1] Justice 2:4 4:3,9,16,19 5:8, macro 89:11 lay [1] 58:9 12,18 6:3,14,22 7:9,13,21 9:3,20 made [8] 42:16 59:16 64:22,23 79: [1] 10:1,18,22,25 11:11,15 12:17,18, layers 37:17 15 81:2 84:7,8 [1] 19,25 14:6,9,16,21,25 15:2,11 16: leads 83:11 magnitude [3] 19:6 20:17 88:22 [9] 3,9,19 17:2,10,16 18:10,20 19:13, least 15:4 21:2 31:25 32:1 34: main [4] 14:6,9,10 15:5 12 38:11 46:7 60:11 73:23 16,25 20:7,8,10,25 21:16,21,25 22: majority [2] 70:20 71:5 [1] 10,15 23:11,14 24:1,3,10 25:6,10 leaving 11:20 many [11] 13:23 18:14 35:11,17,17 left [2] 11:20 58:15 26:3,4,8 27:5,23 28:2,3,7 29:21, 55:9 59:24 60:2 61:23 80:15 91: [2] 24 30:13,18 31:10,16 32:8,13,17, legal 43:4 66:24 18 [1] 20,23,24 33:4,7,24 34:4,5,6,17,24 legitimacy 57:2 March [4] 4:11 32:16 67:18 68:2 [1] 35:11,21 36:4,9 37:3,10,14,20 38: legitimate 92:18 matched [1] 66:6 [3] 44:24 60:17 73:23 length 9,20 39:13,20 40:2,5,9,11,16 41: materialized [1] 32:3 [29] 11:13,24 17:25 19:11 20: 19,22,23 42:1,4,5,7,9 43:8,11,14, less matter [3] 1:12 14:17 82:25 19 44:17 45:7,15,22,24 46:5,13,25 21 21:11 22:12 23:8 26:2 27:12, mattered [1] 21:14 21 35:8,13 37:23 38:17,18 49:12 47:2,4,25 48:16,20,25 49:24 50: matters [3] 69:21 70:14 81:3 21,23 51:8,11,20 52:4,10,12,14,17, 54:20,21 56:3,15 65:1,1,18 66:19 maximize [2] 35:6 65:25 18 53:6 54:9,22 55:5,18 56:11,14, 67:8,9 73:24,24 maximum [6] 15:7,11 35:14 38:23 [1] 19 57:14 58:5,6,10,12 59:1,3 60:7, lesser 37:24 39:14,18 [32] 2:12 3:14 31:11,24 10,13,19,22 61:3,5,8,15,17,18,20, LETTER mean [11] 9:20 24:4 25:3 29:25 30: 32:9,14,20 33:2 35:1,1,3 45:15 60: 14 31:1 55:8 56:9 58:16 62:18 63: 22 62:5,7,9,10,13,18,19,21,24 63: 2 meaning [1] 22:2 means [5] 19:16 73:24 76:14 79: 17 87:4 meet [3] 35:23 45:25 46:1 meeting [1] 50:8 members [1] 11:9 membership [2] 13:7,10 memo [15] 18:16 21:17 23:3 28:15, 16 30:20 32:16,17,18 33:1 67:18 68:2 75:16 84:4 88:11 memorandum [1] 89:5 mentioned [3] 28:8 61:8,17 mentioning [1] 60:14 Mexico [1] 53:10 might [3] 63:17 64:23 91:19 miles [1] 9:21 million [23] 16:20,24 17:5,20 23: 17,23,23 27:17 29:2,4,9,19 36:20 38:1 45:2,3 47:6 52:21 62:22 66:9 67:15,15 68:6 millions [1] 29:18 mind [1] 20:11 mine [1] 28:9 minimis [3] 79:8 87:10 90:17 minimum [1] 37:22 minority [3] 70:19,24 71:4 minute [1] 52:17 minutes [1] 87:17 miss [1] 57:7 missing [2] 33:20,21 misstated [2] 65:22 67:12 mitigate [1] 31:24 model [27] 17:12,22 20:22 23:8,22, 24,25 24:7,13 25:23 26:10,13,23, 25 27:12,15 28:1 41:16 47:14,16, 18,20 48:4 49:9 68:16,20,25 modeled [1] 45:5 modeling [9] 18:1 24:25 30:3 46: 10 47:1,4,22 52:22 64:19 models [6] 17:16 21:1,9 22:7 26: 17 38:14 morning [1] 4:4 most [9] 6:24 18:15 48:22 49:17 59:22 66:7 72:21 74:5,10 move [2] 7:7,16 moved [2] 6:21 7:2 movement [1] 6:24 MS [53] 43:19 44:23 45:11 46:15 47:19 48:11,18,24 49:23 50:4,22, 25 51:10,13 52:1,6,11,13,15,19 53: 23 54:12 55:3,10 56:8,12,17 57:8, 16 58:9,11,24 59:2,19 60:8,16,21 61:2,7,10 62:2,6,8,12,14,23 63:1, 16,24 64:3,9,13,18 much [8] 27:15 46:8 48:13 56:25 58:3 60:24 84:4 90:11 multiple [3] 21:2 37:17 58:7 N NAACP [4] 11:7,8 13:3,4 namely [1] 53:1 Nations [1] 53:7 nearly [1] 4:14 Heritage Reporting Corporation Sheet 5 instantly - nearly 99 Official - Subject to Final Review necessarily [2] 12:2 76:10 organization [1] 73:7 necessary [1] 72:7 orientation [1] 14:11 need [16] 29:10,17 30:2 35:1,14,25 other [43] 5:1 8:3 9:5,8 11:9 14:16 41:25 42:3,5,6,13 45:17 54:1 64: 20 71:2 83:24 needs [4] 25:3,11 35:21 83:4 negative [1] 24:20 never [7] 10:23 27:1 42:16 45:22 73:5,5 88:4 NEW [12] 1:6 2:7,7,8,9,9,10 3:7,11 4:5 43:18 65:8 nobody [4] 13:8 35:12 42:14 63: 16 NOEL [5] 2:3 3:3,19 4:7 87:18 non-citizen [1] 74:8 non-citizens [15] 7:25 15:25 16:1 44:1 49:13 56:2,20 58:4 62:1,6 67: 3 69:13 70:13,17 71:7 non-response [1] 44:10 non-responses [1] 30:7 none [1] 44:4 normal [1] 70:21 normally [1] 58:16 nothing [8] 7:22,22,25 13:12 46:2 52:20 64:9 82:2 notice [1] 82:14 notwithstanding [1] 58:1 number [15] 7:3 27:2,7,16 31:20, 20 37:24 53:9 66:6 69:7 70:16 72: 9 74:12 89:25 91:21 numbers [1] 19:17 Petitioners' [2] 28:16 29:16 phone [1] 10:12 phones [2] 10:8,10 15:22 18:13,14,14 22:5 31:1 36: place [3] 34:3 63:15 86:1 11 37:8 47:22 48:3 51:16 53:9 55: plainly [1] 41:8 12 56:21 57:12 59:4,11 60:13,25 plaintiff [1] 12:19 62:3 63:6,8 64:6,6,25 68:15 71:14, plaintiffs [1] 10:6 22 74:24 78:19 80:22 81:5 83:18 plaintiffs' [2] 10:17 12:14 85:6,23 91:13 92:24 planned [1] 50:14 others [1] 80:15 plausible [1] 62:17 otherwise [2] 50:14 84:2 play [2] 14:17,19 out [17] 10:11 22:16 28:25 29:5,14 plea [1] 42:16 35:19 45:12 46:11 56:20 58:20 73: please [8] 4:10 23:14 43:20 51:11 25 78:13 81:8,16 85:5,11 89:4 outcomes [1] 50:17 output [1] 67:7 outweighed [3] 8:13 14:4 32:11 over [8] 16:22 17:16 18:1,4 26:1 41:3 45:18 81:24 52:13,14 65:11 77:8 Plenty [1] 58:12 pluck [1] 22:16 plus [2] 21:7 24:25 pocket [1] 31:4 point [10] 45:12 51:13 58:6 64:15 overall [4] 5:7 6:24 8:5,5 own [2] 55:7,8 74:24 78:12 82:10 85:3 88:10 91: 6 pointed [4] 29:14 49:25 81:8,16 P points [5] 28:25 45:3 77:18 87:21 PAGE [13] 3:2 19:2 20:14 28:8 29: 89:4 8,15 60:20 66:4,16 67:18 75:6 87: policy [4] 9:24 43:4 86:9,17 24 88:11 political [1] 84:9 pages [4] 28:5,19 30:21 49:4 poorer [1] 24:22 paragraph [1] 88:13 population [14] 28:24 29:9 33:13, paramount [1] 80:25 15 37:9 38:11 44:20 54:19,25 57: part [16] 4:13,20 5:5,6,6,25 6:23 7: 25 70:15,22 71:5 88:3 2 16:23 17:17,18 18:1,5 41:25 47: populations [2] 71:1 74:11 5 53:1 position [6] 14:1 36:11 73:6,7 86: O particular [3] 8:15 13:17 89:13 18 91:14 objectionable [2] 91:19 93:3 particularly [1] 93:3 possibilities [1] 41:12 obligation [1] 46:11 parties [1] 12:20 possible [9] 15:7,12 35:6 38:23,24 obviously [4] 74:9 78:2 79:21 83: pass [1] 77:16 39:15,18 47:17 73:21 4 passed [1] 85:10 post [1] 30:22 offensive [2] 81:11,12 past [2] 9:15 45:9 potential [2] 14:5 58:18 office [2] 15:17 43:1 pay [2] 11:4 46:22 potentially [3] 31:18 86:11,12 often [3] 9:6,16 15:25 pedigree [1] 6:2 practice [4] 17:21 53:18,19 80:13 Okay [8] 42:10 56:14,19 64:13,13 peer [1] 50:18 pre [1] 28:16 68:11 72:16 76:24 peer-reviewed [1] 51:2 precisely [2] 65:17 92:25 old [1] 45:16 people [44] 9:8,21 11:9,12,24 16: predictable [1] 11:12 one [45] 4:13 5:25 11:2,17 14:2 20: 20 23:17 27:13,16 29:2,4,9,19,19 predicted [3] 47:7,13,18 34:13,18 35:8,11,13,17 36:20 37: prediction [7] 11:23,25 19:12 20: 4 21:13 22:17,18,21 31:10 33:2, 21,23 41:13 45:25 47:7 48:22,25 11,23 34:8 37:15 41:10 42:14 44: 21 21:1,9 55:23 6 48:2 50:16 53:13 56:17 57:4,18, 49:8 55:9 59:11 60:14 62:16 66:6, predictive [4] 9:4,8,16 22:7 12,13 67:15 68:6 73:20 76:8 79:3 prefer [1] 25:25 23 59:4 64:18 65:13 66:9 71:13 81:10 91:18,21 74:24 77:19 82:4,9,19 83:11 84: preference [2] 25:24,25 14,19 85:2 86:19 88:12 89:14 91: percent [30] 11:23 23:19 24:4,7,8 preferred [4] 23:5,21 28:25 29:15 6,22 25:22 27:2,7,17 29:2,8 40:1 41:15 prepared [1] 73:2 47:11,13 48:2,7,9,21,22 49:3,7 55: presence [1] 74:8 one-third [4] 67:4 69:2,12 71:6 23 57:3 73:16 89:2 90:6,7,13 91:5 presumably [1] 41:2 ones [1] 77:19 only [13] 8:22 59:15 61:11 63:5 74: percentile [1] 58:19 pretty [1] 15:17 7 75:4 76:2 80:5 81:20 83:8,11 87: perfectly [1] 50:5 previous [1] 44:25 8,8 perhaps [1] 32:1 previously [1] 72:23 opening [2] 6:15 66:17 period [3] 6:1 37:5,7 primarily [1] 65:13 operations [3] 32:1 89:6,7 permitted [1] 61:14 primary [2] 46:24 81:24 opinion [2] 17:24 69:5 person [1] 11:19 principal [4] 33:5 54:18,23,24 opposed [1] 89:10 person's [2] 66:24 76:7 principles [1] 85:3 opposite [1] 65:17 persons [1] 58:20 prior [1] 38:14 oral [9] 1:13 3:2,5,9,13 4:7 43:17 pet [1] 62:24 private [3] 13:7,10,10 65:7 77:3 Petitioners [6] 1:4 2:5 3:4,20 4:8 problem [17] 18:17 37:2 39:3,4,9 87:19 order [4] 64:19,19 86:22 90:5 40:2,5 41:6 54:4,5 67:20 75:2 78: 6 83:25 88:4,6,9 problems [4] 7:18 18:20,21 28:19 Procedure [1] 78:21 proceeding [1] 29:14 process [5] 7:2 66:19 67:8,23 89: 24 produce [3] 26:12,13 75:4 produced [1] 45:19 produces [1] 18:6 product [1] 32:3 prohibit [1] 84:12 prone [1] 38:17 proof [1] 22:19 proper [1] 51:21 properly [1] 78:8 properties [1] 62:3 proposal [3] 24:18 36:23 59:21 proposed [2] 63:16,17 protocols [4] 75:12 76:2 87:23,25 proven [1] 11:16 provide [8] 6:13 8:17 64:8 69:6,7 75:9 76:2 84:15 provided [4] 65:15 74:22 77:24 84: 14 provides [3] 13:13 84:4,4 provision [1] 78:2 proximate [3] 10:23 12:2,6 public [3] 9:24 82:15 83:1 publishing [1] 76:14 purpose [11] 35:9 40:18 46:24 52: 23 54:23,24 65:19 67:1,10 70:23 85:4 purposes [8] 9:19 36:19 59:13 70: 11 71:22,22 72:8 85:7 put [9] 5:8 9:17 19:17 42:8 71:25 81:18 85:12 89:9,10 puts [2] 14:10,12 putting [2] 7:24 59:24 Q quality [3] 24:20,23 88:14 quantified [1] 51:18 quantify [8] 19:5,14,19 20:16 51:1 69:6,11 88:22 quantitative [6] 49:19 50:7,10 51: 6,7 89:17 quantity [1] 48:10 question [163] 4:12,25 5:1,13 6:3, 5,12,16 7:6 8:11,12,15 10:12 13: 17 14:4,11,12,22,25 15:2,15,19 16: 10,13 17:13 18:4,8,25 19:11,22,23 20:20 21:7 22:12 23:5,6,16 24:6, 12,22 25:16,18,21 26:5,7 27:11,22, 24 28:4,5,8,9 29:1 30:3,4,5,6,9,10, 11,24 31:18 34:12,15 36:5,13 39: 2,6,10 40:7,20,20 41:12,23 42:20 43:8,22 44:13,14 45:6 46:8,12,20 47:8 48:13 49:10,11,21 50:13,15 52:16 53:8,11,13,17,21 54:10,16 55:20,24 56:4 57:23 58:21 59:4, 22,25 60:3 61:14 64:1 65:25 66:5, 11,18 67:2,4,5,14,22 68:7,15 69:2, 11,18 70:3,10,12 73:13,15,16,19 74:6,10,17,20,25 75:1,8,15 78:24 Heritage Reporting Corporation Sheet 6 necessarily - question 100 Official - Subject to Final Review 79:3,5,14 80:4,9,10,15 81:18 82:1, 4,8 84:11,13 85:2 86:8,14 89:3,9, 18 90:23 91:15,19 92:4 93:2 questioning [1] 65:1 questionnaire [1] 64:24 questions [19] 7:3,17 8:4 13:21 14:3 15:8,13 17:18 53:25 54:25 55:8,12 56:10 64:6 65:2 80:18 81: 10 84:6 93:5 quite [9] 10:6 13:14 42:25 55:2,9 66:25 75:7 78:7 81:16 quoting [1] 19:5 R race 61:3 88:1 radio [1] 55:8 random [1] 61:13 range [1] 69:8 rate [16] 20:1 23:25 41:17 43:25 44: [3] 33:16 7 47:13,14,18 48:3 55:19 57:3 61: 21 68:14 73:15 89:6 90:6 rates [12] 22:21 31:21 60:25 64:2 70:23,25 74:12,21 86:13 88:24 89: 3 91:3 rather [6] 15:12 24:12 25:20 29:12 30:9,10 rational [1] 92:17 rationale [3] 33:3 75:8,14 rationalization [1] 30:23 reach [1] 78:23 read [7] 18:12 23:2 27:5 28:10 31: 16 42:12 60:12 reading [1] 23:1 real [1] 12:11 really [13] 8:8,9 13:12 39:8,9 40:7 41:5,8 42:2 59:5,8 76:20,20 reason [11] 6:18 7:14 25:12 26:18 28:12 36:17,19 46:17 58:19 67:21 88:5 reasonable [4] 41:10 79:17,22 80: 3 reasonableness [1] 86:16 reasonably [2] 27:4 41:17 reasons [12] 11:2 25:11 26:21 36: 25 44:3 58:7,14 60:13,14 72:9 78: 19 89:15 REBUTTAL [3] 3:18 42:24 87:18 recent [1] 53:15 recommendation [3] 53:19 81:2 83:19 recommendations [2] 25:7 80: 23 recommended [2] 4:24 72:17 recommends [1] 53:7 record [34] 14:13 15:16 16:17 17:4 23:1 25:12 38:1,5 42:12 43:7,10, 23 44:8,16 47:16 51:21,25 52:2,9, 9 63:7,15 64:10 65:16,23 67:19 74:19 81:7,9 82:15 83:1 88:8,25 90:10 records [41] 15:6,8 21:6,8 22:13 23:18 24:24 27:14 28:20,21,23 29: 4 31:14 34:8 35:4,24 36:16,18 37: 1,6 38:3 39:17,23,24 40:4,25 41:1, 14 45:14,22 46:10 59:21 64:7 66: 1,7,14,23 67:16,24 68:8 72:20 redistricting [1] 59:14 referenced [1] 75:3 referring [1] 74:14 reflected [2] 67:25 68:2 refused [1] 38:20 regression [1] 58:17 regular [2] 9:9 15:20 regulated [1] 13:5 reinstate [1] 7:6 reinstated [2] 4:12,21 reinstating [1] 6:12 rejecting [1] 28:12 rejects [1] 26:19 related [1] 50:12 relationship [3] 79:17,22 80:3 relative [6] 19:6 20:16 88:14,15,22 91:3 relatively [1] 70:25 relevance [1] 61:9 relevant [1] 63:4 reliability [1] 38:18 reliable [1] 67:1 relied [2] 59:12 71:21 relies [1] 76:17 religious [1] 84:15 rely [6] 12:24 22:18 34:7 59:15 64: 15 71:15 relying [1] 22:13 remainder [1] 42:23 remained [1] 6:16 remains [1] 18:4 remarkable [1] 75:7 remember [3] 77:22 81:19 85:19 renders [1] 75:16 repeat [1] 82:25 reply [3] 49:25 75:6 87:23 report [1] 35:15 reported [2] 35:8,13 reporting [1] 30:7 Representatives [5] 2:13 3:16 77: 5 78:1,14 request [4] 31:9 36:22,25 82:20 requested [1] 43:9 requests [1] 82:24 requires [2] 70:18 76:5 reserve [1] 42:23 reside [1] 35:17 resolve [1] 28:6 respect [8] 31:22 41:1 49:7,13 52: 25 67:13 70:8 71:7 respectfully [2] 22:25 68:22 respects [2] 56:21 65:23 respond [4] 11:13 37:23 56:15 67: 3 Respondents [15] 1:7 2:8,10,14 3: 7,11,17 8:21 43:18 59:10,16 65:8 71:19 72:14 77:6 Respondents' [3] 6:7 14:1 51:23 responding [3] 56:11,13 74:16 responds [1] 25:16 response [21] 17:21 19:10,25 20: 19 22:20 25:17 43:25 44:7 55:19 57:3 60:23 61:21 64:2 72:5 74:21, 25 86:12 88:17,24 89:2,6 responses [13] 12:5 13:1 36:7 42: 22 55:24 67:7,22 69:10 70:5,12 76:7,11 82:8 responsive [1] 36:24 rested [1] 65:12 result [4] 24:22 30:6 45:5 76:6 results [1] 26:14 retrospective [1] 57:17 return [2] 16:4,22 returns [2] 17:6,11 revealed [1] 65:16 review [13] 6:10 8:9,10,20 13:14 14:2 44:5 50:18 52:5 57:17 85:24 86:2,5 reviewability [1] 13:12 reviewed [1] 85:25 reviewing [2] 51:24 52:2 riddled [1] 89:25 Rights [22] 31:12 33:3,8,11,18 34: 2 42:15 43:12 44:15,18,21 46:21 65:19 69:19,21 70:8,11,14 72:8 78:10 79:21 86:25 risk [2] 48:15 92:21 ROBERTS [34] 4:3 9:3,20 10:1 11: 11 12:18,25 20:10 43:14 44:17 47: 2 50:21,23 52:17 54:22 55:5 64:5, 11 65:4 69:14,16,23 70:1,6 76:22, 24 77:2,13 83:9,16 87:15 92:10 93:6,10 role [2] 14:17,19 room [2] 80:10 83:22 Ross [2] 4:11 89:4 Ross's [2] 28:15 32:15 routinely [1] 47:23 S salient [1] 74:10 same [13] 16:10 25:24 26:15 29:7 33:25 34:1,3 37:4,5 51:14,15 53: 23 84:13 sampling [2] 64:20,25 saw [1] 17:4 saying [12] 8:9 19:9 24:11 25:15 26:12 27:6,9,10,19 47:22 50:6 83: 3 says [29] 14:13 15:4,6 17:3,3,4,19 20:15 34:25 35:1 38:22 39:13,14 42:5,6,10 45:16 48:4 49:6,14 50:3 53:24 54:1 60:23,25 61:23 76:9 79:17 88:13 scientific [6] 19:17 22:6 50:8,20 51:18 83:21 scientist [1] 51:5 scientists [1] 21:10 search [1] 39:3 searched [1] 25:11 second [6] 13:2 16:9,10 66:10 81: 4 88:10 secondly [4] 6:10 8:23 32:2 43:6 Secretaries [1] 43:1 Secretary [56] 4:11,22 6:10 14:10 15:4,16 16:12,12 18:17 19:4 20:6, 23 21:20 22:17 23:4,7 24:11,18 25:3,4,10,19 26:19 28:15 30:25 31:8 32:15 34:9,21 35:23 36:2 38: 6,21 39:17 41:17,24 42:2 43:7,10, 21 46:2,11 47:25 48:2,8 65:24 66: 10 67:12 68:13,19 75:15,24 82:16 83:17 85:11 89:4 Secretary's [12] 4:24 21:3,6 30:19 41:9 65:12,19,21 67:10,19 70:3,4 Section [1] 18:25 see [2] 25:12 34:14 seem [1] 42:2 seems [7] 25:2 38:25 46:7 55:22 56:1 71:24 75:19 seen [1] 16:5 self-response [4] 31:19,21 90:6 91:3 self-responses [2] 39:24,25 sense [1] 12:11 sensing [1] 42:13 sentence [5] 22:17,18,22 75:23 88:13 sequence [1] 36:1 set [4] 28:23 31:10 72:9 79:16 several [1] 16:10 sex [10] 36:14 40:23 41:1,3,7 55:5 61:1 88:1 91:19 92:3 sexual [1] 14:11 SG [1] 30:20 shall [1] 15:5 shape [1] 80:11 she's [1] 77:13 shop [1] 34:14 shopping [1] 42:2 short [10] 5:2 7:4,24 15:9 16:13 57: 18,20 58:2 91:4,11 short-form [1] 7:8 shortfall [1] 90:2 shouldn't [3] 54:15 64:16 72:1 show [2] 28:11,11 showed [4] 15:24 22:10 45:8 74: 14 shows [3] 47:16 67:3 88:25 shred [1] 74:18 side [2] 71:14 92:24 side's [2] 36:11 91:13 sight [1] 70:1 silent [1] 82:5 similar [2] 12:7 13:15 simple [4] 36:19 41:23 42:20 73: 25 simpler [1] 38:13 simply [7] 9:7 21:5 24:21 29:3 36: 23 50:1 91:16 since [5] 4:21 36:15 39:11 53:14, 16 single [1] 38:15 sit [1] 31:5 sitting [1] 11:21 six [1] 63:6 skipping [1] 56:10 slight [1] 86:12 slightest [1] 92:20 smaller [1] 27:16 Heritage Reporting Corporation Sheet 7 question - smaller 101 Official - Subject to Final Review socioeconomic [1] 56:22 solely [2] 67:24 73:12 Solicitor [3] 2:3,6 49:15 solution [1] 39:3 solve [4] 37:2,3 67:20 75:2 solves [1] 59:21 someone [1] 63:7 sometimes [1] 70:20 somewhat [3] 52:24 56:3,15 somewhere [2] 60:11 63:7 sorry [18] 4:16,19 6:25 10:19 20:7, stopped [1] 11:19 stopping [1] 73:20 stores [1] 11:2 strong [4] 43:24 54:19 57:8,9 studies [4] 15:19 19:20,21 22:20 study [3] 11:16,17 56:17 subject [4] 6:9 8:8,19 39:11 submitted [3] 83:19 93:11,13 substantial [1] 55:13 suffered [2] 10:7 13:24 sufficient [4] 46:22 52:23 70:22 took [1] 24:19 totally [2] 59:8 61:18 totals [1] 76:13 touch [1] 34:19 tradeoff [2] 13:18 91:1 trading [1] 8:16 translating [1] 87:4 treat [1] 52:24 trial [8] 49:18 51:14,15,15,21,23 68: 3 88:7 true [4] 5:2 9:21 66:3,16 25 28:13 48:17 51:11 58:11 59:6, 83:12 trust [4] 48:6 68:17,24 89:12 9 69:17,23,25 70:10 76:21 83:14 suggesting [7] 24:15 54:14 80:10 truth [1] 17:8 92:9,12,16,20 sorts [1] 85:18 try [3] 33:19,20 62:2 SOTOMAYOR [57] 4:16,19 5:8,12, suggests [2] 74:20 85:14 trying [3] 28:4 37:3 60:2 18 6:3 10:18,22,25 11:15 12:17, supplemented [1] 35:4 Tuesday [1] 1:10 19 20:7,25 21:16,21,25 22:10,15 support [3] 2:14 3:17 77:6 turning [1] 13:11 26:3 34:4,6,17,24 35:11,21 36:4 suppose [3] 14:10,12,13 turns [1] 85:5 37:10,14,20 38:9 39:13,20 40:2,5, supposed [2] 35:19 58:23 two [18] 6:6 12:4 13:1 15:12 18:21 9,11,16 42:1 60:7,10 64:14 89:19, SUPREME [2] 1:1,13 19:18 20:23 31:22 35:16 36:25 41: 22 90:11,15,20 91:8,11,24 92:2,5, survey [23] 4:20 5:2 6:21 7:1,19 11 42:22 48:1 55:11 72:5 74:11 9,11,12,16,22 sounds [1] 24:4 source [1] 37:4 Spain [1] 53:9 Speaker [1] 77:10 speaks [1] 34:21 special [1] 9:12 specific [2] 23:9 69:7 specifically [7] 19:4 20:14,15 21: 18 29:19 50:12 67:17 speculation [2] 8:25 12:14 staff [6] 19:3 20:3 23:3,5 43:3 89:1 stake [1] 85:15 stand [1] 50:18 standard [2] 79:16 86:16 standards [2] 50:8 51:2 standing [6] 8:21 9:7 10:2 11:8 12: 14:14 17:21 21:7 22:12 33:22 35: 9,15,18 36:13 39:11,21 40:6,15 45:16 46:3 59:23 64:20 74:13 surveyor [2] 11:17,20 surveys [2] 15:22 16:11 survive [1] 44:4 suspect [1] 38:17 T tangible taxes [1] 11:4 technical [3] 15:12,14 76:20 telephone [1] 12:15 tells [2] 35:5 38:13 tempted [1] 31:4 term [2] 50:9 51:5 terms [3] 36:21 80:2 88:24 territory [1] 68:12 test [3] 19:18 53:24 61:13 tested [2] 47:17 63:19 testified [1] 88:8 testimony [8] 22:19 49:5 50:5 51: [1] 9:11 82:8 86:21 two-thirds [1] 41:13 type [3] 22:3,4 92:25 types [1] 88:18 U U.N [4] 53:18,24 80:23 81:2 uncertain [3] 46:14,16 52:24 uncertainty [8] 25:20 27:3 37:18, 20 38:14 48:14,21 52:25 unclear [2] 46:19,20 uncompleted [1] 58:15 uncontradicted [1] 43:24 under [11] 7:7 11:4 14:1 36:10,10, 18 70:20,21 75:17 91:7,13 under-reporting [1] 73:10 undercount [2] 37:21 81:22 undercount's [1] 37:22 24 52:2 undermine [4] 81:5,12 86:21 87:5 start [2] 36:8 39:7 undermines [3] 75:14 78:5,18 started [1] 11:18 underscores [1] 8:7 [2] State 75:17 91:22 understand [8] 48:16,20 56:2 59: stated [3] 65:19 67:10 89:23 15,23 60:11 68:3 89:16 10,16 73:19,22 83:10 statement [2] 50:8 52:8 [1] 65:2 [1] 56:5 testing understanding [1] statements 29:25 [1] 72:25 [2] 31:13,17 themselves understood STATES [18] 1:1,14 2:13 3:15 11: theory [1] 92:24 UNDERWOOD [58] 2:6 3:6 43:16, 3,5 44:2 53:12,20 54:6 71:18 72: 17,19 44:23 45:11 46:15 47:19 48: There's [15] 11:12 15:3 23:4 39:6 13,22 73:14 77:4 78:15,16 81:3 43:6,9 48:2 49:19 51:22 70:16 78: 11,18,24 49:23 50:4,22,25 51:10, statistical [8] 23:21 25:23 26:10, 13 52:1,6,11,13,15,19 53:23 54:12 7 82:24 83:21 89:17 90:9 13,16,23 79:15 85:7 [3] 55:3,10 56:8,12,17 57:8,16 58:9, statistician [5] 4:23,24 37:16 38: therefore 6:6 9:10 78:20 11,24 59:2,19 60:8,16,21 61:2,7, they'll [1] 49:1 12 57:1 [5] 5:23 8:24 12:20 67:13 88: 10 62:2,6,8,12,14,23 63:1,16,24 third [1] statisticians 63:23 64:3,9,13,18 77:20 24 statistics [2] 22:19 48:6 third-party [4] 8:23,24,25 12:24 undoubtedly [1] 87:10 status [2] 41:4 56:23 [6] 11:8 12:9,10 25:2 60:5 though unequivocally [1] 49:6 [10] statute 13:5 15:3,4 18:25 76:5 62:11 Unfortunately [1] 88:21 78:3 84:22 85:2,10,14 [1] 80:17 thoughtful UNITED [10] 1:1,14 2:13 3:15 53:7, statutes [1] 86:15 three [6] 15:18 19:20 21:2 44:3 49: 12,20 54:6 77:4 81:3 statutory [2] 78:20,25 6 65:23 universal [1] 65:1 steep [1] 46:22 [2] 85:8,8 throughout unknown [3] 25:22 26:10 41:17 [1] step 82:5 throw [1] 59:4 unlawful [1] 9:22 still [4] 5:20,22 24:19 28:20 [3] 77:12 80:7 84:5 today unless [3] 15:6 63:11 93:4 stood [1] 13:8 [3] 9:17 91:16,22 together unlike [1] 38:13 [2] stop 73:10 84:21 unreasonable [1] 87:6 unreporting [1] 38:10 unsupported [1] 44:16 untested [2] 25:23 26:10 until [1] 5:17 up [2] 30:21 50:18 upfront [2] 77:9,19 upside [2] 31:9,9 urge [1] 13:19 useful [1] 54:13 uses [1] 88:2 using [11] 7:18 18:7 24:24 31:14 39:17,24,25 41:15 45:13,17 72:19 utmost [1] 77:25 V value [3] 8:12 14:4 45:16 variables [2] 61:1,21 various [1] 88:18 versus [3] 4:5 11:7 88:14 violate [1] 9:1 violation [4] 78:20,21,22,25 virtually [1] 80:14 voters [2] 70:19 71:4 Voting [26] 31:12 33:2,8,11,13,18 34:2 37:9 43:12 44:15,18,19,20 46:21 65:19 69:19,21 70:8,11,14, 21 72:8 78:10 79:21 86:25 88:3 voting-age [1] 29:9 VRA [1] 70:18 W Wait [2] 28:4 52:17 walked [1] 11:18 wanted [9] 7:16 19:18 33:24 34:14 37:12 43:11 46:1 59:5 61:13 warranted [1] 60:5 wash [1] 16:20 Washington [3] 1:9 2:4,12 way [12] 16:21 42:18 55:14,14 57: 11 65:3 72:21 78:8 80:11 84:13 85:20,23 Wayfair [1] 11:1 ways [1] 60:2 wealth [1] 22:18 Webster [1] 13:15 welcome [1] 77:14 whatever [2] 47:13 83:13 whereas [3] 41:4 67:23 73:21 Whereupon [1] 93:12 whether [16] 13:24 14:3 24:6 27: 21 41:9 43:3 46:5,8,20 54:16 60:4, 23 69:18 70:7 90:4 92:17 whole [7] 5:19 14:14 35:9 39:6 52: 2 73:13 75:14 whom [7] 23:17 27:13 29:20 41:14 47:8 66:13 68:7 will [41] 9:1 11:12,24 12:1,1,3 15: 20 16:14 26:13 27:11 35:8,12 38: 7 39:7 43:24 45:4 46:20 49:9,12, 21 54:20 55:23 57:16 66:8,19 67: 6,20 68:6 70:22 74:20,21 76:10 78:9 79:12 81:11,21,21,25 88:5, 15 89:20 Heritage Reporting Corporation Sheet 8 socioeconomic - will 102 Official - Subject to Final Review Wisconsin [2] 55:15 79:13 wishes [1] 77:10 within [3] 6:11 50:19 78:15 without [1] 42:12 witnesses [1] 33:19 wonder [1] 57:1 word [1] 84:25 words [4] 9:5,8 14:16 22:1 work [1] 34:15 world [1] 80:13 worse [9] 12:22 16:15 18:6,6 20:5 26:25 46:9,19 81:22 write [1] 28:5 written [2] 63:8 80:24 Y year [2] 5:17,23 years [6] 4:14,22 5:1,6,14 19:18 Yep [1] 18:9 YORK [12] 1:6 2:7,7,8,9,9,10 3:7, 11 4:5 43:18 65:8 Z zero [2] 90:7,13 zone [1] 9:22 Heritage Reporting Corporation Sheet 9 Wisconsin - zone