In University of South Florida College Republicans v. Lutnick (No. 26-205), the Center for Election Confidence (CEC) filed an amicus brief urging the U.S. Supreme Court to note probable jurisdiction or summarily reverse a decision that leaves those challenging unlawful census methods with no meaningful opportunity to sue. The case concerns Section 209 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1998, which creates a special cause of action to challenge certain census methods and requires expedited judicial review. According to the brief, the decision below effectively renders that remedy null and void by combining strict causation, redressability, and timing rules that cannot all be satisfied at the same point in the census cycle.
CEC focuses first on the lower court’s conclusion that the plaintiffs failed to connect the Census Bureau’s use of whole-person imputation to Florida’s alleged undercount. The brief explains that the Bureau did not disclose that Florida had been undercounted by roughly 760,000 people until May 2022, one month after Florida completed congressional redistricting. Yet the panel treated completed redistricting and subsequent elections as reasons that relief had become impracticable despite the Bureau releasing its report on the inaccuracy of the 2020 Census—the only notice of count issues—after Florida completed redistricting. At the same time, an earlier three-judge court had held that census plaintiffs lacked standing before the Bureau released redistricting data. CEC therefore argues that the combined rulings create an impossible window: “suing before the Bureau’s report is too early, and suing after the Bureau’s report is too late.”
The brief argues that the causation requirement compounds that problem because the information necessary to plead a State-specific census injury is controlled by the Bureau itself and becomes public only after key apportionment and redistricting events have occurred. CEC notes that the Bureau’s post-enumeration survey did not publish Florida’s coverage estimate until May 2022, while a separate Bureau report relied upon by the panel did not issue until 2023. According to CEC, the panel nevertheless demanded that plaintiffs plead the mechanism by which the challenged method caused Florida’s undercount before the relevant information was available. “The decision below did not merely find that these Plaintiffs lost the race to the courthouse,” the brief explains; “it found that any plaintiff would.”
CEC also challenges the panel’s alternative conclusion that a four-year limitations period began running when the Bureau released apportionment and redistricting data in 2021. The brief argues that a limitations period ordinarily cannot begin before a plaintiff has a complete and present cause of action. Section 209 gives a cause of action to a person “aggrieved” by a statistical method, including a resident whose congressional representation or district could be changed by that method. CEC contends that a Florida resident could not know whether she was aggrieved until the Bureau released information showing the State’s undercount and its possible representational consequences. Although the appellants separately argue that a six-year limitations period applies, CEC maintains that the panel’s chosen accrual date is cannot be correct (even without resolving which limitations period controls) because it starts the clock before the facts necessary to establish the claim are available.
The brief next addresses the panel’s conclusion that relief was not redressable because any corrected apportionment would ultimately require action by the President, who was not a defendant and ordinarily cannot be enjoined in the performance of official duties. CEC argues that this reasoning would defeat every census-apportionment case because federal law necessarily routes apportionment through the President. The Commerce Secretary must report the population tabulation to the President, the President must transmit each State’s population and number of Representatives to Congress, and the Clerk of the House then certifies the allocation to the States. CEC relies on Franklin v. Massachusetts and Utah v. Evans for the principle that courts may presume executive and congressional officials will comply with an authoritative judicial interpretation even when those officials are not directly bound by the judgment. In CEC’s view, the panel “took a presumption that the plaintiff receives and converted it into a burden a plaintiff carries.”
CEC further argues that the passage of time does not categorically make post-census relief unavailable. The brief points to prior census cases litigated after apportionment was complete and emphasizes that congressional maps are sometimes redrawn in the middle of a decade after elections have already occurred. It therefore rejects the suggestion that completed redistricting or intervening elections automatically place an apportionment error beyond judicial correction. The brief also challenges the panel’s reliance on a narrowing reading of Section 209(a)(8), in which Congress recognized that meaningful post-enumeration relief can be difficult. CEC argues that Congress identified that difficulty in order to justify the statute’s unusually expedited procedures, including three-judge district courts, direct Supreme Court review, and a command to advance cases “to the greatest possible extent,” not to eliminate the remedy. As the brief puts it, “Congress answered the difficulty with speed, not with a locked door.”
Finally, CEC warns that the ruling’s effects extend beyond the 2020 census. The brief notes that the Census Bureau plans to use count imputation again in 2030 and argues that the panel’s reasoning would reproduce the same timing problem in the next census cycle: claims could be deemed premature before the necessary data exists, untimely after the data appears, and un-redressable once States begin using the count. CEC maintains that such a framework would make Section 209 a practical nullity despite Congress’s express decision to provide a cause of action for census challenges. The brief therefore urges the Supreme Court to note probable jurisdiction or summarily reverse, concluding that Congress created Section 209 to keep the courthouse open long enough for unlawful census methods to receive meaningful judicial review.
The Center for Election Confidence thanks Phillip M. Gordon and Brennan A.R. Bowen of Frazier Law for their representation in this matter.