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Tierney Sneed

Tierney Sneed is a reporter for Talking Points Memo. She previously worked for U.S. News and World Report. She grew up in Florida and attended Georgetown University.

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The legal battle that is about to ensue over a question the Trump administration wants to add to the 2020 Census will be unlike major litigation around past censuses.

After an unprecedented move by the Trump administration to add a controversial question late in the Census planning process, courts will be asked to take an unprecedented step of preventing the administration from making the change before the count.

California filed a lawsuit challenging Commerce Secretary Wilbur Ross’ decision to add a citizenship question to the upcoming Census just hours after the change was announced. Several other groups and parties are lining up behind California Attorney General Xavier Becerra with plans to bring legal challenges of their own.

Every Census is the target of a fair share of lawsuits. But the legal ground to be tread this time will be fresh, Census experts and voting rights attorneys tell TPM.

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Commerce Secretary Wilbur Ross didn’t have to look far to find evidence that asking for one’s citizenship — as he announced Monday that the 2020 Census would do — could depress participation.

The Bureau itself said as much in an internal research report presented last fall, based on the experience of Census field workers. According to one worker, a Spanish-speaking respondent who admitted to her when she asked that he was not a citizen, later lied about his country of origin, “shut down” when she asked when he entered the country, and walked out of his apartment where she was conducting the survey.

Several other accounts in the report likewise pointed to a potential chilling effect of asking about citizenship.

Yet Ross — in a move that is being roundly criticized by former Census officials, policy wonks and civil rights groups — granted a request by the Justice Department  to include the question in the upcoming decennial survey, despite the Bureau having almost no time to test the effect of such an addition.

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The Trump administration on Monday evening announced that it was making a controversial change to the upcoming 2020 Census that experts say could lead to an undercount — particularly among minority and urban communities.

For the first time in decades, the Census will ask survey-takers their citizenship status, Commerce Secretary Wilbur Ross said in a memo. The change was made at the request of the Justice Department.

Already, civil rights groups and Democrats say they will sue over the change.

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A few weeks back, I reported on the dismay among state elections officials of both parties that Matt Masterson, a commissioner at the U.S. Elections Assistance Commission, was being replaced by a yet-to-be-named recommendation by Speaker Ryan.

Today, those officials got a silver lining with the news that Masterson would be moving to a new job at the Department of Homeland Security, where he would work on election cybersecurity issues. The move was first reported by The Hill and confirmed by Masterson in an EAC blog, in which he said that, in his new role at DHS, he would be “a federal liaison with the election community to improve the security and resilience of the election process.”

While speaking with state officials earlier this month about Masterson’s departure from the commission, I heard repeatedly about how helpful Masterson was as a go-between between election administrators and the DHS. As the DHS was ramping up its efforts to help out with election cybersecurity last year, Masterson played a crucial role in opening the lines of the communication between state officials and the feds, they told me.

Election experts and state officials were quick to praise the DHS for bringing on Masterson.

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The congressional map wars in Pennsylvania continue. State Republicans are now attempting to oust the state Supreme Court judges that knocked down their map. This comes after a last-ditch effort to appeal the court decision that threw out the old map fell short. Last Monday, a panel of three federal judges rejected a GOP request to reinstate their old map; on the same day, the U.S. Supreme Court also announced it would not get involved.

A day later, state Rep. Cris Dush (R) introduced resolutions impeaching four of the five judges who voted against the GOP map. Dush told The Hill that he had originally drafted the resolutions after the state Supreme Court’s decision against the congressional map in January, but was awaiting for the U.S. Supreme Court to make its move in the case before he introduced them.

Similarly, in Wisconsin, it looks like state lawmakers will be rushed back to the Capitol to pass legislation that overrules a judge’s decision ordering Gov. Scott Walker (R) to hold special elections. The National Redistricting Foundation — a group linked to former Attorney General Eric Holder’s National Democratic Redistricting Committee — sued Walker on behalf of Wisconsin voters for refusing to hold special elections for two vacant state legislative seats. Walker’s move came after a Democrat won a special election in a Republican district, and seemed aimed at protecting his party’s control of the state house. On Thursday, Dane County Circuit Judge Josann Reynolds — a Walker appointee — ruled that state elections law required Walker to call a special election for the two vacant seats. Walker and the Republican leaders of the state legislature almost immediately called for a special session to rewrite the law in question.

The bigger picture, among these gerrymandering battles, is just how entrenched gerrymandering has made Republicans’ advantage. A new Brennan Center study found that Democrats would need to win the national popular vote by nearly 11 points — an incredible margin, even during a blue wave as big as the one expected in 2018 — just to attain a slim majority in the U.S. House.

This Wednesday, the U.S. Supreme Court will hear arguments in Benisek v. Lamone, the second partisan gerrymandering case the court is considering this term. Benisek is a challenge to how Democrats drew Maryland’s congressional maps, and it offers a different legal argument against partisan gerrymanders than Gill v. Whitford, the other partisan gerrymandering case on the Supreme Court’s docket.

The upcoming Census will play a key roll in the ongoing redistricting wars by providing much of the data that will be used to draw the next decade’s voting maps. Advocates of fairer maps have been warning that an underfunded Census would produce faulty data, but they received a bit of a good news last week. The massive spending bill passed by Congress and signed by the President on Friday included $2.814 billion in funding for the Census — a boost well above even what Census advocates were hoping for.

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Asked about a marathon of tweeting President Trump went on last weekend criticizing Special Counsel Robert Mueller’s investigation, Senate Majority Leader Mitch McConnell (R-KY) voiced strong support for the prosecutor but stopped short of endorsing the push to pass legislation to protect Mueller from any potential moves by Trump to remove him.

“I agree with the president’s lawyers that Bob Mueller should be allowed to finish his job,” McConnell said Tuesday. “I think it was an excellent appointment. I think he will go wherever the facts lead him, and I think he will have great credibility with the American people when he reaches the conclusion of this investigation. So I have a lot of confidence in him.”

Trump this weekend for the first time bashed Mueller by name on Twitter, arguing that his probe “should never have been started” and alleging his team was full of “hardened Democrats.” His tweets included multiple attacks on the Justice Department more broadly and on Andrew McCabe, the top FBI official who was fired by Attorney General Sessions. His personal lawyer John Dowd — in comments that was first said to be on the behalf of the president, and then walked back to be from Dowd personally — called for Mueller’s removal. The White House attorney representing the President, Ty Cobb on Sunday however said that firing Mueller is not being considered or discussed.

McConnell, echoing the sentiments of many in his caucus, said on Tuesday that he didn’t think measures protecting Mueller or the Justice Department official whom oversees him were “necessary.”

“I don’t think Bob Mueller is going anywhere. I think there’s widespread feeling — and the President’s lawyers obviously agree — that he ought to be allowed to finish the job,” McConnell said. “He’s a thoroughly credible individual, whom I think is an appropriate appointment and we all anticipate his finishing the job and telling the American people what they need to know about this episode.”

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As they near completion of one aspect of their Russia probe, lawmakers on the Senate Intelligence Committee outlined for reporters where federal officials fell short in responding to Russian cyberthreats in 2016.

“We were all disappointed that states, the federal government and Department of Homeland was not more on their game in advance of the 2016 elections,” Intel Vice Chair Mark Warner (D-VA) said.

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The Senate Intelligence Committee, as part of its ongoing Russia probe, on Tuesday previewed their initial recommendations to improve election cybersecurity ahead of the 2018 midterms.

“It is clear that the Russian government was looking for the vulnerabilities in our election systems,” Senate Intel Chairman Richard Burr (R-NC) said at the press conference to announce the release of a summary of the draft recommendations. On Wednesday, the committee will host a hearing with elections officials and the leaders of the Department of Homeland Security on election security.

The committee’s summary calls for the federal government to “clearly communicate to adversaries that an attack on our election infrastructure is a hostile act, and we will respond accordingly.”

In calling for states to update their election technology, the summary recommends that states going forward purchase voting machines that at “a minimum” have a  “voter-verified paper trail and no WiFi capability.”

At the press conference, Intel senators stressed the need for states to use election equipment whose results can be audited with physical voting records.

“Fourteen states used voting equipment that had not audit-able voting trail,” Intel Vice Chairman Mark Warner (D-VA) said, adding that his own state didn’t have a full system that had a paper trail and that it scrambled to implemented one in time for the 2017 elections.

The committee recommended that Congress pass legislation that boosts resources available to states for their election security. At the press conference, lawmakers stressed that states are still in charge of their elections, including the funding of them. However, they said they are considering legislation that would allow the feds to better assist states.

Some of that legislation has already been introduced. Other potential measures will fall under the jurisdiction of other committees, such as the Appropriations Committee or the Rules Committee, the lawmakers said.

The recommendations come as the other committees probing Russia have descended into partisan squabbling. Republicans on the House Intel Committee have wrapped up their inquiry, over Democrats’ objections, and are finishing their report. Senate Judiciary Republicans meanwhile have focused their scrutiny on Christopher Steele, the ex-British spy who sought to expose allegations of connections between Russia and associates of President Trump.

Senate Intel has so far avoided any major public displays of dysfunction. There are still critical and more controversial questions lingering over their inquiry — and specifically those concerning Trump. But Senate Intel lawmakers have signaled they are seeking to move forward on at least the election security aspects of the their review ahead of the midterms.

“The Committee has reviewed the steps state and local election officials take to ensure the integrity of our elections and agrees that U.S. election infrastructure is fundamentally resilient,” Tuesday’s summary said.

Read the summary below:

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Senate Republicans don’t think it would be a good idea for President Trump to fire Special Counsel Robert Mueller. But few were willing on Monday to elaborate on what steps need to be taken to protect the special counsel, even after the President and his personal lawyer lashed out at Mueller by name over the weekend.

“I have zero concern that the President is going to fire Mueller. Zero,” Sen. Lindsey Graham (R-SC) told reporters on Capitol Hill Monday, despite having introduced legislation that would prevent Trump from doing so.

Graham —  who on Sunday said that firing Mueller would be “the beginning of the end” of Trump’s presidency – told reporters on Monday that he introduced the bill protecting the special counsel “to let people know where I stand.”

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President Trump’s campaign committee is fundraising off a controversial request from his Justice Department that the 2020 Census include a question about citizenship.

An email from the campaign committee poses a survey to recipients with the subject line “a truly simple question for you.”

“The President wants the 2020 United States Census to ask people whether or not they are citizens,” the email said. “In another era, this would be COMMON SENSE… but 19 attorneys general said they will fight the President if he dares to ask people if they are citizens. The President wants to know if you’re on his side.”

The email then includes a survey on the question that leads to page seeking contributions to the campaign.

Former Census officials, policy wonks and civil rights advocates have all come out against the idea of asking about citizenship status in the decennial census. They fear that it will depress participation — especially among minority and immigrant communities. Internal Census research has shown that the question prompts fears about confidentiality and privacy among survey takers. Even citizens who live with non-citizens might be fearful about participating if the question is included, particularly given the anti-immigrant rhetoric coming out of the Trump administration, critics of the idea say.

An undercounting of urban and minority communities stands to shift political power and resources to rural and white communities.

Critics also say adding the question this late in Census planning period adds another practical complication for a Census already facing a number of logistical hurdles.

ProPublica reported recently that John Gore, a political appointee at the Justice Department who previously represented Republicans in high-profile voting rights lawsuits, was behind the request that Census Bureau consider adding the question. An aide to a former Republican senator who championed a bill to include the citizenship question has recently joined the Census as a political appointee, ProPublica also reported.

Commerce Secretary Wilbur Ross, who will have the final say over whether the question is included, is required to submit to Congress the questions Census intends to ask by the end of the month.

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