Trump Administration’s Justification For Adding A Census Citizenship Question Is Unraveling

Jul 24, 2018
In The News

Commerce Secretary Wilbur Ross had a significant interest in adding a question asking about citizenship to the 2020 census months before the Department of Justice asked him to do so, newly disclosed documents show.

The documents further undermine the Trump administration’s claim that it is adding the question to the 2020 census so the Department of Justice can better enforce the 1965 Voting Rights Act. While the census currently asks about citizenship on the American Community Survey, which goes out to over 3.5 million households each year, it has not asked about citizenship on the decennial census, which goes to every American household, since 1950.

In testimony before Congress and in an official memo announcing the decision in March, Ross said the Department of Commerce began to consider adding the question after it received a formal request from the Department of Justice in December 2017. In its request, the Department of Justice said it needed more citizenship data to better enforce the Voting Rights Act, which prohibits discriminatory voting regulations.

But in a memo disclosed in June, Ross said he began considering the possibility months earlier and that he had approached the Justice Department about making the request.

Documents disclosed Monday evening as part of a lawsuit challenging Ross’ decision to add the question suggest the commerce secretary wasn’t just considering adding the citizenship question, but actively wanted to do so before the DOJ request. Plaintiffs in the suit are likely to seize on the documents as more evidence that the Trump administration wanted to add the citizenship question to the 2020 census and merely used the DOJ request as a pretext for doing so.

You can download the documents here.

Rep. Carolyn Maloney (D-N.Y.), who has strongly lobbied against adding a citizenship question, said Ross lied to Congress.

“These just released emails between Secretary Ross and his staff make it clear that voting rights enforcement was nothing more than a manufactured ruse to justify adding a citizenship question and that the Secretary lied to Congress when he said it was DOJ that ‘initiated the request,’” she said in a statement.

Democratic Sens Cory Booker (N.J.) and Brian Schatz (Hawaii) called on Ross to appear before Congress to clarify his previous testimony.

DOJ declined to comment on the documents.

In May of 2017, Ross discussed adding a citizenship question with Earl Comstock, the director of the office of policy and strategic planning at the Commerce Department.

“Worst of all they emphasize that they have settled with congress on the questions to be asked. I am mystified why nothing have been done in response to my months old request that we include the citizenship question. Why not?” Ross wrote. The message is heavily redacted and it is not clear whom Ross is referring to in it.

Comstock wrote back a few hours later, assuring Ross the department would find a way to get the citizenship question on the 2020 census.

“On the citizenship question we will get that in place,” he wrote. “We need to work with Justice to get them to request that citizenship be added back as a census question, and we have the court cases to illustrate that DoJ has a legitimate need for the question to be included. I will arrange a meeting with DoJ staff this week to discuss.”

Comstock then discussed adding a citizenship question with Mary Blanche Hankey, an adviser to Attorney General Jeff Sessions, and James McHenry, the head of DOJ’s Executive Office for Immigration Review. At McHenry’s suggestion, he also contacted the Department of Homeland Security to discuss adding the question, but DHS told him it was a matter better suited for DOJ.

In September of 2017, three months before the Justice Department made its request, John Gore, the acting head of DOJ’s civil rights division, contacted Wendy Teramoto, Ross’ chief of staff. He helped set up a call between Ross and Sessions.

“From what John told me, it sounds like we can do whatever you all need us to do and the delay was due to a miscommunication. The AG is eager to assist,” Danielle Cutrona, a Sessions aide, wrote to Teramoto.

The documents are part of a lawsuit brought by New York and several other states and cities, which argue adding the citizenship question is unconstitutional and that Ross abused his discretion in deciding to add the question. Showing that Ross wanted to add the question prior to the DOJ request is key to making the latter part of that case because it suggests that he was intent on adding the question regardless of what the Commerce Department’s review of the necessity and impact of the question determined.

Civil rights groups have strongly opposed adding the question, saying it is unnecessary and will decrease the response rate among minority communities wary of disclosing their immigration status to the federal government. (Federal law strictly protects personal responses gathered through the census from being shared with other people or agencies.) An inaccurate count of minority communities could lead to less political representation and federal funds, since census data is used to determine the allocation of congressional seats and hundreds of billions of federal dollars.

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A Commerce Department spokesman said none of the information in the documents is at odds with the rationale Ross has previously given for adding the citizenship question. The spokesman said the documents showed evidence of executive branch officials coordinating before making a policy decision, which he said was an example of “good government.”

“The documents reinforce that executive branch officials worked together to ensure that Secretary Ross received all of the information necessary to make an informed decision after taking a hard look at the question and considering all facts relevant as shown in the documents provided to the public,” the spokesman said in a statement.

However, Vanita Gupta, president and CEO of The Leadership Conference on Civil and Human Rights and a former head of DOJ’s civil rights division said in response to the information in the documents: “It’s clear now that this decision was made without thought to the consequences for the census or its scientific integrity. All the efforts that followed were simply an attempt to justify a political decision.”

The Commerce Department did not include the documents disclosed on Monday as part of those it voluntarily filed in court in June. But on July 3, U.S. District Judge Jesse Furman ordered the government to produce additional documents, saying it had not provided comprehensive documentation of its decision to add the citizenship question.

The documents disclosed Monday also show that Steve Bannon, who was then chief strategist in the White House, wanted Ross to talk to someone about the census. A previous disclosure contained emails in which Kansas Secretary of State Kris Kobach (R) said he had spoken with Ross about the citizenship question at Bannon’s direction.

The documents also provide insight into the Census Bureau’s initial reaction to the Department of Justice’s request to add a citizenship question, including an attempt to build a case for adding the question.

In February, Ron Jarmin, the acting director of the Census Bureau, contacted Michael R. Strain, the director of economic policy studies at the conservative American Enterprise Institute, to see if anyone at the think tank would be willing to speak favorably about adding a citizenship question.

“None of my colleagues at AEI would speak favorably about the proposal. Is it important that the person actually be in favor of the proposal?” Strain told him.

“We are trying to find someone who can give a professional expression of support for the proposal in contrast to the many folks we can find to give professional statements against the proposal,” Jarmin wrote back. “Interesting, but perhaps not so surprising, that no one at AEI is willing to do that.”

On Jan. 3, John Abowd, the Census Bureau’s chief scientist, wrote a memo to Jarmin, advising against adding a citizenship question to the 2020 census. He laid out three options for meeting the Department of Justice’s request for better citizenship data: not adding a citizenship question, adding a citizenship question, and using existing administrative records to get better citizenship data. He warned that adding a citizenship question would be “very costly” and would “harm the quality of the census count by increasing erroneous enumerations.” He recommended using existing administrative records to get DOJ the data it wanted.

A few weeks earlier, Jarmin had responded to the Department of Justice’s request for a citizenship question making a similar recommendation to use administrative records. He suggested staffers from both agencies meet to figure out how it could be done.

In February, Jarmin said he had heard back from the Department of Justice. The agency said its letter had fully explained its request about adding a citizenship question and DOJ didn’t want to meet.

This post has been updated with comment from Vanita Gupta.

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