Voting Rights and Democracy

Inside Trump administration’s mysterious plan to secure a 2020 census citizenship question

Wilbur Ross had just started running the Department of Commerce, but he was growing impatient over the 2020 census, still three years away.

“I am mystified why nothing (has) been done in response to my months-old request that we include the citizenship question,” Ross emailed to a staff member just two months into his new job on May 2, 2017. “Why not?”

The commerce secretary had gotten an earful about the issue from Kris Kobach, the Kansas secretary of state who was about to be named vice chairman of President Donald Trump’s “Advisory Commission on Election Integrity.” Kobach had been recommended to Ross by Steve Bannon, the president’s chief strategist and White House senior counselor, who was a fierce opponent of the nation’s immigration policies.

But it would take another seven months and the direct intervention of Attorney General Jeff Sessions to grant Ross’ wish. Two weeks before Christmas, the Justice Department finally asked for what Ross already knew he wanted – and Census Bureau officials learned for the first time that the citizenship question was even under consideration.

This is the story of that convoluted decision-making process, as recounted by three federal district court judges who presided over separate trials in New YorkCaliforniaand Maryland. Now it’s headed to the Supreme Court.

The high court, which has called the census “the linchpin of the federal statistical system,” will hear the case April 23 and issue its verdict by the end of June. It must decide if Ross had ample reason to ask about citizenship, followed acceptable procedures and acted within the bounds of the Constitution.

That’s not the portrayal that emerges from the three lower court rulings. Rather, it is one of a Republican administration determined to use the decennial census to locate noncitizens – and to benefit politically whether it finds them or not.

‘Officials with something to hide’

So far, Ross has an 0-3 record in the district courts, where judges named by President Barack Obama have described acts of subterfuge and misleading statements intended to obscure the real reasons for asking the citizenship question.

“Those acts and statements are not the transparent acts and statements one would expect from government officials who have decided, for bona fide and defensible reasons, to change policy,” Judge Jesse Furman ruled in New York in January. “Nor are they the acts and statements of government officials who are merely trying to cut through red tape.

“Instead,” Furman said, “they are the acts and statements of officials with something to hide.”

By the time Ross was confirmed as secretary of commerce on Feb. 27, 2017, the Census Bureau was on the verge of telling Congress what the census would ask about: The usual questions about gender, age, race, ethnicity, and homeownership.

The 79-year-old commerce secretary had what he considered to be a fundamental question: Were noncitizens routinely counted?

The answer was unambiguous: Anyone “with a usual residence in the 50 states” was counted so that seats in the House of Representatives could be apportioned among states. The goal of the decennial census – conducted every 10 years since 1790 when Thomas Jefferson supervised it – is counting heads.

‘One simple question’

During the spring of 2017, Ross discussed the possibility of adding what Kobach called “one simple question” to the census with Sessions, Bannon, Kobach and others.

Bannon, the former Breitbart News executive, had helped Trump win election with a promise to build a border wall and deport undocumented immigrants. Kobach’s concern was mirrored in his work on the ill-fated election integrity commission, which would look into alleged voter fraud among noncitizens and others before disbanding in disarray at the start of 2018.

The Kansas official said geographic data on noncitizens was needed to address the “problem that aliens who do not actually ‘reside’ in the United States are still counted for congressional apportionment purposes.”

By early May, Ross was clearly on board, and he fumed about bureaucratic delays. “Worst of all,” he wrote to his deputy chief of staff, Earl Comstock, census officials “emphasize that they have settled with Congress on the questions to be asked.”

Despite the wishes of the two Trump allies, Comstock told Ross they needed a formal request from the Justice Department. They knew what they wanted, but they needed a reason that would “clear (the) legal thresholds.”

On May 4 – two days after Ross’ “mystified” email – White House officials pointed Commerce officials toward the Justice Department for what would turn out to be a seven-month effort to justify the citizenship question.

Rebuffed at every turn

Things did not go well at first.

At the Justice Department, the director of the Executive Office of Immigration Review said the department didn’t want to get involved. The New York trial record attributes that to “the difficulties Justice was encountering in the press at the time (the whole Comey matter),” an apparent reference to the firing in May of FBI Director James Comey.

Things didn’t go any better at the Department of Homeland Security. Despite a series of phone calls, officials there said the issue should be handled by the Justice Department. This prompted Commerce officials to consider “how Commerce could add the question to the Census itself.”

By mid-July, Kobach was back, emailing Ross to remind him of their earlier phone call, and later speaking to Ross again by phone. On August 8, Ross emailed Comstock that if Justice had not decided whether to get involved, “please let me know your contact person, and I will call the AG.”

Comstock urged caution. “Since this issue will go to the Supreme Court, we need to be diligent in preparing the administrative record,” he responded.

Ross went even further: “We should be very careful about everything, whether or not it is likely to end up in the SC.”

‘The AG is eager to assist’

The ice finally was broken in mid-September, when John Gore, the Justice Department’s acting assistant attorney general, entered the fray. Soon after, Danielle Cutrona in Sessions’ office wrote to Wendy Teramoto, Ross’ chief of staff at the Commerce Department.

“It sounds like we can do whatever you all need us to do, and the delay was due to a miscommunication,” Cutrona said. “The AG is eager to assist.”

Ross and Sessions then spoke at least twice by phone, and political appointees at the Justice Department began work on a letter requesting the citizenship question.

On Nov. 27 – a day after court records indicate Ross spoke with President Trump, and a day before the commerce secretary would turn 80 – he emailed a staffer working on the issue. The Census Bureau was getting ready to start translating census questions into multiple languages and had set the printing contract.

“We are out of time,” Ross wrote. “Please set up a call for me tomorrow with whoever is the responsible person at Justice. We must get this resolved.”

It was two weeks later when Arthur Gary, a Justice Department career official, sent the formal request to the Census Bureau’s acting director, Ron Jarmin. The reason for the question, Gary said, was to enforce the Voting Rights Act.

The ‘SWAT Team’ responds

The Census Bureau wasn’t happy.

Within days of the Dec. 12 letter, the bureau’s “SWAT Team” of senior professional staff began churning out briefing documents and reports showing that the citizenship question would reduce response rates among households with noncitizens. That would force the bureau to conduct more followup work, at an estimated additional cost of $27.5 million.

The court records are replete with memos from census officials – on Dec. 22, Jan. 3, and ultimately Jan. 19, when they advised Ross that asking about citizenship “is very costly, harms the quality of the census count, and would use substantially less accurate citizenship status data” than other government sources.

Census officials sought to meet with their Justice Department counterparts but were rebuffed at Sessions’ direction, court records show. A single meeting with Ross didn’t change anything.

On Feb. 12, Kobach wrote Ross to endorse the new rationale – enforcing the Voting Rights Act, which is intended to give members of minority groups the opportunity to elect representatives of their choosing. He also mentioned his concerns about voter fraud and said the citizenship question would help for “election-related reasons.”

By now, Ross had what he wanted. But he also wanted a cheering section.

Commerce and census officials went searching for interest groups to support their cause but emerged nearly empty-handed. In the end, only the conservative Heritage Foundation and Center for Immigration Studies, which seeks to slash immigration rates, agreed to speak favorably about the plan.

Three days before directing the Census Bureau to add the question, Ross spoke with Christine Pierce, senior vice president for data science at Nielsen Co. She warned “unequivocally” that the question likely would reduce response rates.

On March 26, Ross’ “Decision Memo” directed the Census Bureau to add a citizenship question, based on the Justice Department’s request. He said the “need for accurate citizenship data and the limited burden that the reinstatement of the citizenship question would impose outweigh fears about a potentially lower response rate.”

Mystery in the motives

All three judges who heard challenges from states and immigrant rights groups concluded basically the same thing: Ross worked backwards. He decided to ask about citizenship in the 2020 census and then went searching for a legitimate reason.

“It was like ‘Jeopardy,'” said Dale Ho, director of voting rights at the American Civil Liberties Union, one of the lawyers who will argue the case in the Supreme Court. “They had the answer. They needed the question.”

It didn’t matter that the professionals at the Census Bureau thought it would do more harm than good. The proposal got its energy from Ross himself, with an assist from the political people who had his ear.

“He was speaking with individuals who have long harbored anti-immigrant sentiment,” said Nicholas Espiritu, a staff attorney at the National Immigration Law Center who was involved in the California case.

What none of the judges ever determined was why.

“Secretary Ross does not wish his reason for requesting the inclusion of the citizenship question on the 2020 census to come to light,” Judge Richard Seeborg concluded last month in the California case.

“Ultimately, Secretary Ross’ original rationale remains, to some extent, a mystery,” Judge George Hazel reiterated in this month’s Maryland decision.

The district court judges stopped short of speculating on Ross’ motivations, but there could have been several:

Voting Rights Act enforcement: The question would arm Justice Department officials with data on where noncitizens live, which could help them determine that minorities comprise not just a majority of people but a majority of eligible voters in a particular district.

Congressional apportionment: The question would reduce census response rates among noncitizens, which could cost California, Texas, Florida, New York, Illinois and Arizona seats in Congress.

Redistricting: Information on noncitizens would help state legislatures that seek to restrict voting rights, such as Texas and North Carolina, to draw new districts in 2022 based on citizen voting-age population, rather than total population. The states could pack more people into districts with greater non-voting residents, diminishing their representation.

“They see this as a way to get states to draw districts in a way that’s going to favor rural areas over urban areas and will tend to favor white populations over more minority populations,” said David Gans, director of human rights, civil rights and citizenship at the liberal Constitutional Accountability Center.

Put another way by Edward Blum, director of the conservative Project on Fair Representation and a supporter of the administration’s effort: “It could have a profound effect on the forms of governance that we see in these states.”

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