The Census and Voter Suppression: The 2020 Immigration Question

The first post in this series on the census covered “prison gerrymandering.” This post covers part of the controversial attempt to add a citizenship question to the 2020 Census.

Background

From 1820 through to 1950, with an exception for 1840, the census contained a citizenship question. During this time period, the census collected data through in-person interviews. After 1950 the census transition to collecting data through a mailed questionnaire. A short-form questionnaire was mailed to most residences while the remaining residences received a long-form questionnaire. The long-form census questionnaire used in 1970, 1980, 1990, and 2000 included a question about citizenship. The short-form questionnaire never contained a citizenship question. After the 2000 Census, the citizenship question was moved to the American Community Survey (ACS).

Commerce Secretary Ross decided in late March 2018 to include a citizenship question in the short-form 2020 Census. The question is “Is this person a citizen of the United States?” The answer options are “Yes, born in the United States,” “Yes, born in Puerto Rico, Guam, the U.S. Virgin Islands, or Northern Marianas,” “Yes, born abroad of U.S. citizen parent or parents, “Yes, U.S. citizen by naturalization – print year of naturalization,” and “No, not a U.S. citizen.”

Three aspects of the census are critical to this and the following post. First, while the census serves many important purposes it has one sole Constitutional purpose. The Constitution requires a decennial census to enumerate (number) the persons residing in the United States for the purpose of apportioning the 435 representatives of the House of Representatives.

Second, the Census Bureau has established a rigorous process of pre-testing questions that may be added to the census. This process, which often takes years and multiple field and cognitive tests, ensures that the question as worded will get the most answers for its objective.

Last, the Census has developed significant methods to try to capture a complete enumeration of persons when persons do not fully respond to the short-form questionnaire. These persons are generally labeled hard-to-count populations (HTC).

At the end of March 2018, Commerce Secretary Wilbur Ross announced that a citizenship question would be added to the 2020 census. Within weeks of Ross’s decision to add a citizenship question, several lawsuits were filed to try to prevent the citizenship question from being included in the 2020 Census. These legal actions were filed in the U.S. District for the Northern District of California, the U.S. District Court for the Southern District of New York, the U.S. District Court for the District of Maryland, and the U.S. District Court for the District of Columbia. Several of these lawsuits were combined. The two that this blog will focus on are from the Northern District of California and the Southern District of New York. [Additional documents can be found here.]

The judge in the Southern District of New York approved the plaintiff’s petition to add to the administrative record after additional information became publicly available. The most significant information that became available after trial proceedings had started came from the hard drives from a deceased Republican operative, Thomas Hofeller. Hofeller had been very active in gerrymandering state congressional and legislative districts to favor Republicans. His study on the consequence of drawing state legislative districts based on citizens showed a distinct advantage for Republicans. Hofeller wrote that conservative states with large immigrant populations could vote to exclude non-citizens from the count they used to determine state legislative districts. This would consolidate Republican control of statehouses.

Adding the citizen question (1)

Perhaps the first public inkling about a census citizenship question occurred on February 17, 2017, when the Washington Post obtained a draft White House executive order, “Executive Order on Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs.” The draft included a recommendation that “the Director of the U.S. Census Bureau shall include questions to determine U.S. citizenship and immigration status on the long-form questionnaire in the decennial census.” Publication of the draft provoked some responses critical of the proposal because it would depress census response rates from immigrants. However, no action occurred on the draft proposals and concern about the possibility of a citizenship question on the census faded.

The next public statement about the census immigration question probably came on December 29, 2017, when ProPublica headlined that the Justice Department “pushes for citizenship question on census.” It reported on a December 12 letter from Arthur Gary, general counsel of the justice management division of DOJ, to Ron Jarmin, acting director of the Bureau of the Census.

The letter formally requests “that the Census Bureau reinstate on the 2020 Census questionnaire a question regarding citizenship, formerly included in the so-called ‘long-form’ census.” The letter stated that DOJ needed this information because “Census data is reported at the census block level, while the smallest unit reported in the ACS estimates is the census block group.” The DOJ needed census block data and not census block group data to help enforce the Voting Rights Act. The letter also requested “that the Census Bureau release this new data regarding citizenship at the same time as it releases the other redistricting data, by April 1 following the 2020 Census.”

Publication of the letter stirred a significant backlash. Many individuals and groups, as well as members of Congress, reacted adversely to the letter, all saying that such a question would significantly reduce response rates from immigrants specifically and the Latino community generally. The controversy resulted in Secretary Ross appearing before several congressional committees and being questioned about the citizenship question under sworn testimony.

On March 20, 2018, Ross testified before the House Committee on Appropriations and stated, “We are solely responding to the Department of Justice’s request” regarding the citizenship question. On March 22, before the House Ways and Means Committee he said, “The Department of Justice, as you know, initiated the request for inclusion of the citizenship question.” On May 10, before the Senate Committee on Appropriations Ross said in response to a question of why there was a sudden need for this information, “Well, the Justice Department is the one who made the request of us.” Additionally, on May 8, before the House Oversight Committee, Earl Comstock, head of Commerce’s Office of Policy and Strategic Planning, testified that “The reason for this question was the Justice Department asked this to get more accurate information at the census block level.”

On March 26, 2018, Secretary Ross formally made his decision to add a citizenship question to the 2020 Census. His decision memorandum concluded with “I have determined that reinstatement of a citizenship question on the 2020 decennial census is necessary to provide complete and accurate data in response to the DOJ request. To minimize any impact on decennial response rates, I am directing the Census Bureau to place the citizenship question last on the decennial census form.”

Adding the citizenship question to the 2020 Census (2)

Based on the documents made available in the district courts and notwithstanding the above description, what follows now is a more detailed, revised timeline regarding the citizenship question. In reading this revised timeline one should keep in mind (1) the December 12, 2017 date of the DOJ letter, (2) Ross’s statement in his March 26, 2018 decision memo, and (3) his sworn testimony before Congress.

In March 2017, the Census Bureau presented to Congress the five topics that would be included in the 2020 Census. These included gender, age, race, ethnicity, and homeownership status but did not include citizenship or immigration status. In the same month, Secretary Ross asked Earl Comstock whether noncitizens were included in the census count for purposes of congressional apportionment. Comstock confirmed that noncitizens are counted on the census.

On April 5, 2017, Ross’s executive assistant emailed him to indicate that “Steve Bannon [who at that time was the White House Chief Strategist] has asked the Secretary to talk with someone about the census.” Subsequently, Bannon connected Ross with Kansas Secretary of State Kris Kobach [who had been the former vice-chair of the Presidential Commission on Election Integrity] to discuss adding a citizenship question to the census. Kobach told Ross that a citizenship question was necessary to address the “problem that aliens who do not actually ‘reside’ in the United States are still counted for congressional apportionment purposes.”

On May 2, 2017, Ross emailed Comstock saying, “I am mystified why nothing has been done in response to my months-old request that we include the citizenship question. Why not?” Comstock wrote back “on the citizenship question we will get that in place . . . We need to work with Justice to get them to request that citizenship be added back as a census question.” The next day Comstock asked around to get suggestions as to whom to contact at Justice. Comstock was eventually referred to the director of the Executive Office of Immigration Review at DOJ. After speaking several times to James McHenry, Comstock was told that DOJ did not want to request the citizenship question “given the difficulties Justice was encountering in the press at the time (the whole Comey matter).” McHenry referred Comstock to the Department of Homeland Security, but DHS declined to request the citizenship question.

On July 14, 2017, Kobach emailed Ross to remind him of their prior telephone conversation “about the fact that the census does not currently ask respondents about their citizenship.” Kobach further wrote that “it was imperative that one simple question be added to the upcoming 2020 Census” and that a variant of the question that appears in the ACS “needs to be added to the census.”

On August 8, 2017, Ross emailed Comstock asking “where is DOJ in their analysis” of whether to add a citizenship question to the 2020 Census and advising “if they still have not come to a conclusion please let me know your contact person and I will call the AG.” The next day, Comstock emailed Ross saying a memo on the citizenship question will be ready by Friday . . . Since the issue will go to the Supreme Court we need to be diligent in preparing the administrative record.” Ross responded the next day saying “I would like to be briefed on Friday by phone . . . we should be very careful about everything, whether or not it is likely to end up in the SC.”

On September 1, Ross complained to Comstock and his chief of staff, Wendy Teramoto, about not having “received an update on this issue of the census question. On September 6, Comstock sent Ross a memo advising him that he had not been successful in locating any agency that would request a citizenship question and that he had enlisted the help of James Uthmeier, Counsel to the Office of Secretary and a special advisor to Ross, in advancing the citizenship question.

In mid-September, John Gore of the DOJ spoke with Teramoto about the DOJ-DOC issue. Gore then worked with an aide to Attorney General Sessions to set up a call between Ross and Sessions. On September 17, Danielle Cutrona in the office of the Attorney General wrote to Teramoto to say that “the Attorney General is available on his cell” and that “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.” Sessions and Ross then spoke on the phone.

Adding the citizenship question (3)

As noted earlier, once information about the Hofeller material became public, plaintiffs in the New York case asked the judge to require the administration to provide full and complete materials regarding the citizenship question. [Note: The Supreme Court later ruled that the NY judge wrongly required the administration to produce these additional materials.] The supplemental materials were much more extensive than the material the administration provided. The original administrative record contained about 1,300 pages while the supplemental administrative record contained over 12,000 pages.

The judges in both the California and New York cases were careful to relate findings to each set of materials. My reading of the district court documents shows that both judges firmly believed their findings and judgments were soundly based on the original administrative records. I also separate out the supplemental materials, which is solely the focus of this portion of the post.

In June 2014, Arthur Gary, General Counsel of the Justice Management Division of DOJ, wrote to the General Counsel of Commerce to indicate what census-derived data the DOJ uses and to confirm that it continued such data collection. Gary indicated that DOJ used citizenship data collected by the ACS to enforce the Voting Rights Act and that the “lowest geography” for which the DOJ needed citizenship data was the “Census block group” level. There was no discussion of a citizenship question or a need for citizenship data at the block level.

In July 2016, Gary wrote to the Census Bureau to confirm that the DOJ “had no need to amend the current contract and uses or to request new content” for the 2020 Census.

In November 2016, Gary supplemented that letter to “formally request that the Census Bureau consider a new topic in the ACS relating to LGBT populations.” At no time prior to December 2017 did Gary express a need for more granular citizenship data or a citizenship question on the census.

Also in August 2017, the Commerce Department legal counsel emailed that their “hook” was that the department “does not make decisions on how the [citizenship] data will be used for apportionment.” This incident occurred when Ross’s staff was preparing a memo and full briefing on the citizenship question. [Information about this meeting was not included in the initially submitted administrative record.]

On December 12, 2017, Gary sends his letter (referred to above) to request that a citizenship question be added to the 2020 Census. Gary’s letter does not state that either a citizenship question or block-level data is necessary for VRA enforcement. Neither doe the letter state that any plaintiffs had lost any section 2 enforcement actions due to insufficient data from the ACS. Nor did the letter suggest that DOJ has declined to bring any Section 2 enforcement actions due to insufficient data from the ACS. [Note: the California District Judge makes these comments about what the letter did not include.]

Following the receipt of Gary’s December 12 letter, Dr. Jarmin, acting director of the census bureau, emailed an initial response to Gary’s letter. Jarmin advised Gary that “the best way to provide P.L. 94-171 block-level data with citizen voting population by race and ethnicity would be through utilizing a linked data file of administrative and survey data the Census Bureau already possesses. This would result in higher quality data produced at a lower cost.” In Jarmin’s December 22 letter he suggested to Gary a “meeting of Census and DOJ technical experts to discuss the details of this proposal.” The DOJ refused to meet.

Most of the supplemental material refers to issues concerning the impact of a citizenship question on census counts and alternatives to adding a citizenship question to the 2020 Census. These materials will be discussed in the next post in this series on the census and voter suppression.

Court decisions

Based on the key points described above, the U.S. District Court Northern District of California, the U.S. District Court Southern District of New York, and the Supreme Court all found that the Commerce Department’s stated rationale for including a citizenship question was pretextual.

District courts

By “pretextual” I quote from Judge Seeborg’s decision summary: “Secretary Ross’s reliance on VRA enforcement to justify inclusion of the citizenship question was mere pretext and the definition of an arbitrary and capricious governmental act.” It was “an effort to concoct a rationale bearing no plausible relation to the real reason, whatever that may be, underlying the decision.”

Judge Furman, of the Southern District of New York, expressed a similar conclusion. “Finally, and perhaps most egregiously, the evidence is clear that Secretary Ross’s rationale was pretextual – that is, that the real reason for his decision was something other than the sole reason he put forward in his Memorandum, namely enhancement of DOJ’s VRA enforcement efforts.” Judge Furman further stated that “courts have not hesitated to find that reliance on a pretextual justification violates the APA.” [Administrative Procedures Act].

Supreme Court

On a 5-4 decision (Chief Justice Roberts plus justices Ginsburg, Breyer, Kagan, and Sotomayor) the Court agreed that the stated rationale for adding a citizenship question was pretextual:

“…viewing the evidence as a whole, we share the District Court’s conviction that the decision to reinstate a citizenship question cannot be adequately explained in terms of DOJ’s request for improved citizenship data to better enforce the VRA. Several points, considered together, reveal a significant mismatch between the decision the Secretary made and the rationale he provided.

“. . . We are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process. It is rare to review a record as extensive as the one before us when evaluating informal agency action – and it should be. But having done so for the sufficient reasons we have explained, we cannot ignore the disconnect between the decision made and the explanation given. Our review is deferential, but we are ‘not required to exhibit a naivete from which ordinary citizens are free.’ . . . The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.

“In these unusual circumstances, the District Court was warranted in remanding to the agency, and we affirm that disposition . . . . We do not hold that the agency decision here was substantively invalid. But agencies must pursue their goals reasonably. Reasoned decisionmaking under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction.”

Comment

I have two comments. The first covers the blatant lying about events among members of the Commerce Department, especially in sworn testimony before Congress. It reminds me of the bald lies told to Congress by members of the Reagan administration regarding the Iran-Contra affair. At least then 14 administrative officials were indicted and 11 were convicted, although some convictions were vacated on appeal. President George H.W. Bush pardoned all in the final days of his presidency. Here, however, to date, there has been no consequence for lying, although House Democrats have pushed for some consequences.

But it is not just lying before Congress. Key political players in the citizenship issue peppered their depositions with “cannot recall” or “do not remember.” Some have refused to testify before Congress. Additionally, the administration initially produced about 1,300 pages of documents for the district courts. However, once the district court asked for supplemental materials the administration produced more than 12,000 additional pages. Most of these supplemental pages had redactions for claims of executive privilege and sometimes the redactions were extensive.

The amount of lying without compunction in this administration is extraordinary. I am guessing that two circumstances explain much of this lying. Most of the key officials in this administration are from the business world and have no or very little government experience. This seems to be especially true of many the personal staff that these key officials bring in with them. It may be the case that “all is fair in love, war, and business,” and people bring this culture with them into government. My own experience in and around government is that government employees may lie at times, but not pervasively or without compunction.

The second factor may relate to Trump’s own vociferous appetite for compulsive lying along with the fact that this behavior has little if any downside among his supporters or the Republican Party. It is often said that leaders create the culture in which they operate. Of course, as well, people usually lie to hide things or prevent things from becoming public.

The second comment focuses on the Supreme Court’s opinion was a 5-4 split opinion. I say this after reading the district courts’ findings and conclusions and many of the documents produced as part of the administrative record. I was particularly struck by this statement, noted above, in Chief Justice Robert’s opinion: “The reasoned explanation requirements of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case . . . . Reasoned decisionmaking under the Administrative Procedures Act calls for an explanation for agency action. What was provided here was more of a distraction.”

I find it incomprehensible that four Supreme Court justices did not agree with this comment. But as will be reviewed in the next post in this series, there were several split decisions within this case, some of which in my view are even more problematic.