A series of email dumps from the Commerce Department—mandated by discovery rules in ongoing litigation against the Trump administration—has undermined the administration’s justification for adding a citizenship question to the 2020 census.
Commerce secretary Wilbur Ross announced in March that the U.S. Census Bureau would ask every person in the United States about their citizenship status during the 2020 decennial survey. The decision ignored the advice of six former Census directors, multiple Census advisory committees, and even the Bureau’s own chief scientist, who agreed the question would jeopardize the accuracy of the 2020 enumeration (chiefly by discouraging immigrant communities from participating).
In a March 2018 memo explaining the decision, Secretary Ross said the Bureau was adding the query in response to a December 2017 request from the Department of Justice (DOJ)—who needed the data, DOJ said, to better enforce protections for minority voters under the Voting Rights Act (VRA).
But emails released in the past two weeks show that administration officials and allies—including Secretary Ross, Steve Bannon, and anti-immigrant Kansas secretary of state Kris Kobach—began discussing the need for a citizenship question within months of Donald Trump’s inauguration, well before DOJ made its request.
“These emails suggest that the Commerce Department’s rationale was, to use a technical term, horseshit.” – Justin Levitt, former U.S. deputy assistant attorney general
“These emails suggest that the Commerce Department’s rationale was, to use a technical term, horseshit,” said Justin Levitt, a law professor at Loyola University who served as a deputy assistant attorney general overseeing the DOJ’s civil rights division from 2015 to 2017.
Levitt, who helped enforce the Voting Rights Act during his tenure at DOJ, testified to Congress in May 2018 that the citizenship question is “unnecessary” to enforce the VRA. Reliable data on citizenship, Levitt and other voting experts have said, is already available to the DOJ from the sample-based American Communities Survey (ACS).
“The citizenship question is not designed to yield any improved enforcement of voting rights,” Levitt told me. “In fact, quite the contrary.”
Because inquiring about citizenship status will likely depress response rates among immigrants, the data derived from the survey will be worse than what is now available from the ACS. While there are “known statistical means of compensating for low response rates in a survey like the ACS,” Levitt said, sampling to correct projected undercounts in the Census is not permissible.
The administration’s explanation had always been suspicious. The Jeff Sessions DOJ has shown no particular eagerness to enforce voter protections. Much more likely, advocates say, is that the administration is hoping to scare immigrants and minorities away from filling out the Census, thereby reducing the flow of federal dollars to and undermining political representation in urban areas with high immigrant populations.
“Voting rights enforcement has never depended on having that question on the [Census] form,” said Vanita Gupta, who led the Justice Department’s Civil Rights Division under President Obama and is now president of the Leadership Conference on Civil Rights. “That’s plainly a ruse to collect that data and ultimately to sabotage the census.”
“They made a strategic mistake trying to use the Voting Rights Act as the link,” said Ken Prewitt, the director of the U.S. Census Bureau from 1998 to 2001, “that was never persuasive to anyone who understood voting rights or the Census. Now they’re living with the consequences.”
Prewitt, who had previously hesitated to attribute malicious intent to the Trump administration’s bungled approach to the 2020 Census, told me today, “I don’t have any trouble now saying that I believe this is an attempt to gain partisan advantage by manipulating the Census process.”
The Story These Emails Tell
The emails disclosed in the past few weeks paint a different picture of the decision-making process behind the citizenship question than has been represented by administration officials.
Emails released in June revealed that Kobach, who briefly helmed a controversial “voter fraud” commission, reached out to Secretary Ross in July 2017, urging him to add a citizenship question. In an email, Kobach wrote that undocumented immigrants should not be counted in the Census because they “do not actually ‘reside’ in the United States.” (They do.) Kobach also references a phone call he had with Secretary Ross several months earlier “at the direction of Steve Bannon”—who was then Trump’s chief strategist and whose position on immigration (legal and illegal) is well documented.
This week’s emails reveal an even earlier conversation, from May 2, 2017, in which Secretary Ross wrote to his deputy Earl Comstock, “I am mystified why nothing have [sic] been done in response to my months old request that we include the citizenship question. Why not?”
Note that at the time of this email, President Trump had been in office for less than three months. If Ross’s request was “months old” in May 2017, it means he began the process of adding a citizenship question to the Census almost immediately upon assuming his post.
Comstock’s response to Ross is even more damning. He writes, “On the citizenship question we will get that in place… we will need to work with Justice to get them to request that citizenship be added back as a census question.” [Emphasis added.]
“That sure doesn’t sound like the request started with DOJ,” Levitt said.
A few months later, in September, Danielle Cutrona, a Justice Department official who handled immigration for President Trump’s transition team, wrote to Secretary Ross’s chief of staff, “It sounds like we can do whatever you all need us to do…the AG [Jeff Sessions] is eager to assist.”
This chain of events contradicts Secretary Ross’s repeated testimony to Congress that the request for a citizenship question was “initiated” by the Justice Department—and not the other way around. Representative Elijah E. Cummings (D-MD), the ranking member of the House Committee on Oversight and Government reform, documented over a half a dozen instances in which Secretary Ross implied that DOJ made the request and Commerce was merely responding to it.
On March 22, 2017, for example, Secretary Ross testified, “The Department of Justice, as you know, initiated the request for inclusion of the citizenship question.” On May 10, he was asked, “Why this sudden interest in [the citizenship question] when the department that’s supposed to enforce violations doesn’t see any problems?” Ross responded, “Well, the Justice Department is the one who made the request of us.”
Members of Congress have since accused Secretary Ross of perjury. Representative Cummings told the New York Times, “Lying to Congress is a serious offense, and Secretary Ross must be held accountable.”
Levitt was more circumspect. “On an extremely formalistic level,” he told me, “the Census Bureau’s formal process kicked in once DOJ made the request. And it’s true that Commerce did receive a request from DOJ. But that statement on March 22 about who initiated the request, even if it could be construed as technically true depending on what you think of as ‘the request,’ sure seems designed to mislead.”
Another exchange during congressional testimony caught my eye.
At a March 20, 2018 appropriations committee hearing, U.S. Representative José Serrano of New York (D) asked Secretary Ross, “Has the president or anyone else in the White House directed you to add this or a similar question to the 2020 census?” Ross replied, “We are responding solely to the department of justice’s request” (emphasis added).
“Solely” is a strong word.
Now, we don’t know whether Ross’s interest in adding a citizenship question was spurred by someone else in the Trump administration—though we do know it well preceded the DOJ’s request. And we also know that Ross discussed the citizenship question with Kris Kobach months before July 2017, and that Kobach was directed to call Secretary Ross by Steve Bannon, then a top White House advisor.
“It might not be perjury,” said Levitt, “but it sure doesn’t look good for the Commerce Department.”
In June, Ross changed his story, writing that he began considering whether to reinstate a citizenship question “soon after” his appointment. “As part of that deliberative process, my staff and I consulted with Federal governmental components and inquired whether the Department of Justice (DOJ) would support, and if so would request, inclusion of a citizenship question as consistent with and useful for enforcement of the Voting Rights Act.”
“If you have to lie under oath in order to defend something you’re doing, what you’re defending is probably not legal. At the very least, it’s not appropriate.” – Ken Prewitt, former U.S. Census director
Prewitt, the former Census director, isn’t convinced. “If you have to lie under oath in order to defend something you’re doing,” Prewitt said, “what you’re defending is probably not legal. At the very least, it’s not appropriate.”
Why These Emails Matter
What precisely these revelations mean for the six ongoing lawsuits against the Trump administration regarding the citizenship question remains to be seen—but they are likely to prove significant for those cases.
Two weeks ago, a federal judge in Manhattan district court gave the plaintiffs in one case—attorneys general for seventeen states, the District of Columbia, and a host of cities and counties—permission to search government files and take sworn testimony from ten administration officials. The judge, Jesse M. Furman, said it appeared the Commerce Department had acted in “bad faith.”
Today, Furman denied the Trump administration’s motions to dismiss the suit, allowing it to proceed. He dismissed, however, the plaintiff’s claim that the citizenship question violated the constitutional requirement for an “actual enumeration.”
“The Court is compelled to conclude that the citizenship question is a permissible – but by no means mandated – exercise of the broad power granted to Congress and, in turn, the Secretary pursuant to the Enumeration Clause of the Constitution,” Furman wrote.
The emails bolster the plaintiffs’ claim that the administration violated the Administrative Procedures Act (APA), which prohibits federal agencies from taking “arbitrary” or “capricious” action. If they can prove that the Commerce Department sharply deviated from its normal practice, neglecting to undertake a robust and careful decision-making process, the Court could force the government to set aside the citizenship question.
Levitt agrees: the last-minute decision to add an untested citizenship question to the 2020 Census, against the advice of the Bureau’s own experts and former chiefs, while concealing the motive for doing so behind a staged interdepartmental process and fictional timeline, he told me, could be considered “arbitrary” and “capricious.”
“The way you want the Census Bureau to conduct its business,” Levitt said, “is the white booted clean room in a sci-fi space movie. It’s the room you go in where they blast you four times before you walk in the door to get all the pathogens out. That’s how careful they are. It’s the E.R. scene of the incredibly technically sophisticated laser microsurgery.”
“And instead they’re just winging it this time around.”