Whether Commerce Secretary Wilbur Ross will be deposed in the lawsuits challenging his move to add a citizenship question to the census is now in the Supreme Court’s hands. But from the internal documents released with the litigation, and the excerpts of his deputies’ depositions that have also made their way in to court filings, it’s become clear that the stated reason for adding it — for Voting Rights Act enforcement — was an after-the-fact justification pursued by his top aides.
Ross’ aides have denied knowing, according to the deposition excerpts, why in fact Ross was so personally hell-bent on including the question on the 2020 survey, where experts, including those within the Census Bureau itself, fear it will risk an undercount of immigrant populations.
But we do know why one of the top proponents of the question, Kansas Secretary of State and ex-Trump voter fraud commission chief Kris Kobach, thought it was necessary. An email he sent Ross lobbying for the question advocated for a major change in how political power is doled out in the United States — in a way that would conveniently boost Republicans’ electoral advantages.
Without Ross’ deposition, we may not know for sure if that reasoning was motivating his decision to add the question. But this is what we do know, based on the documents that have been released:
Ross started hankering for the question soon after he was confirmed.
Ross was vocal in his desire that the question be added to the census from the beginning of his tenure as Commerce Secretary, internal documents reveal, and tasked a top aide with finding a justification, according to the aide’s deposition. This contradicts Ross’ testimony to Congress that his move to add the question was in response to a request that was “initiated” by the Justice Department.
Ross’ top aide, Earl Comstock, said in his deposition that shortly after Ross was confirmed he asked Comstock to “explore putting it on,” though Comstock testified that Ross never told him why he was so set on adding the question.
“My job is to figure out how to carry out what my boss asks me to do,” Comstock testified. “So you go forward and you find a legal rationale. Doesn’t matter what his particular personal perspective is on it.”
Internal emails released as part of the litigation back up this timeline. In May 2017, Ross was “mystified” that “nothing” had been done on his “months old” request to include the question, and he continued to email Commerce officials in the summer and through the fall fretting about the lack of progress made in getting the question added.
The Justice Department did not submit a formal request for the question until December 2017, and Comstock testified that he didn’t even have contact with the Justice Department before May 2, 2017, when he wrote Ross in an email that “we need to work with Justice to get them to request that citizenship be added back as a census question.”
Kobach, who pushed Ross for the question, wanted it to overhaul how U.S. congressional seats are allotted.
Ross has admitted that — contrary to his 2018 congressional testimony — then-White House advisor Steve Bannon reached out to him in spring 2017 to ask that he speak to Kobach about adding the citizenship question. Kobach, according to an email he sent Ross in July 2017, said that it was “essential” that the question be added, given the “problem that aliens who do not actually ‘reside’ in the United States are still counted for congressional apportionment purposes.”
The email noted that the citizenship question was the subject of their phone conversation “a few months ago.”
Apportioning congressional seats and drawing redistricting maps in a way that excludes undocumented immigrants — or all non-citizens, as one state sought unsuccessfully to do this year – would be a major electoral boon to Republicans. According to one analysis, conducted while conservative advocates were asking the Supreme Court to exclude non-citizens and children from state legislative redistricting, such a change “would most likely result in a shift from Democratic to Republican elected officials” in statehouses.
Ross was interested in how non-citizens counted for congressional seats at this time
Around the same time that Ross was pushing behind the scenes for a citizenship question, he was inquiring how census data was being used in congressional apportionment.
Comstock sent Ross an email on March 10 titled “Your Question on the Census.” It included a Census Bureau link confirming that undocumented immigrants were counted for congressional apportionment, as well as a Wall Street Journal column about the reliance on smaller-scale surveys, rather than the comprehensive decennial census, to count immigrants.
Comstock, asked about the email in his deposition, said that Ross had “asked were the non-citizens counted, and we answered the question, which is they are counted.”
He also testified that Ross ” never” expressed as opinion to him as to whether certain immigrants should be excluded in congressional apportionment, when asked about the July 2017 email from Kobach.
Comstock — when asked about emails sent by another Commerce official, David Langdon, in May 2017, noting that Ross seemed “puzzled why citizenship is not included in” the 2020 census — testified that Ross “did not understand why a citizenship question was not included, so he asked us to look into the matter.”
Later that day, Langdon sent Comstock and another aide an email titled, “Counting of illegal immigrants.”
“Long story short is that the counting of illegal immigrants (or of the larger group of non-citizens) has a solid and fairly long legal history,” Langdon wrote.
The DOJ, at first, didn’t want to get involved.
When Comstock did start trying to coordinate a request for the question from the Justice Department, he was told by DOJ attorney James McHenry that they were too “busy” to handle it, according to Comstock’s deposition.
That’s a slightly different excuse than what Comstock told Ross in a September 2017 memo: “James said that Justice staff did not want to raise the question given the difficulties Justice was encountering in the press at the time (the whole Corney matter),” Comstock wrote then.
Regardless, McHenry — who is a top immigration official at the Justice Department, and not in its voting rights section — told Comstock to try the Department of Homeland Security.
“Certainly, it’s your understanding that the Department of Homeland Security has nothing to do with enforcing the Voting Rights Act?” Comstock was asked in his deposition.
“It would not normally be something I would think they would do, no,” Comstock acknowledged.
DHS pointed him back towards the Justice Department.
Ross sought Jeff Sessions himself to move the DOJ along.
Whatever issues Ross was having with getting the Justice Department to make the request were obviously solved by December. Ross, in a discovery response, admitted that he “discussed the possible reinstatement of a citizenship question on the 2020 decennial census with Attorney General [Jeff] Sessions in the Spring of 2017 and at subsequent times.”
In August, Ross wanted to speak to Sessions about the citizenship question, according to an email where he asked, “where is the DoJ in their analysis?”
The next month, John Gore — who then led the civil rights division of the Justice Department — reached out to Wendy Teramoto, Ross’ then-chief of staff, to discuss a “DOJ-DOC issue,” according to emails released with the litigation.
Those emails also indicate Teramoto then sought to put Sessions on the phone with Ross.
“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,” another DOJ official told Teramoto in an email. “The AG is eager to assist.”
By Sept. 18, Sessions and Ross had spoken, according to an email sent to Gore.
In an email Ross sent to another Commerce official the next day titled “Census,” he wrote, “Wendy and I spoke with the AG yesterday. Please follow up so we can resolve this issue today.”
Teramoto, in deposition excerpts released with court fillings, said she didn’t recall the conversations with Gore or Sessions.
By early November, Gore had written a draft letter for the request, it appears from the emails released in the litigation.
For whatever reason, the request was not submitted that month, prompting Ross to write frantically to a Commerce official, “We are out of time.’
“Please set up a call for me tomorrow with whoever is the responsible person at Justice,” his email, titled “Census Questions,” said. “We must have this resolved.”
The Justice Department’s letter was submitted two weeks letter.