It’s still a mystery exactly why Commerce Secretary Wilbur Ross wanted a citizenship question added to the 2020 census — a decision the Supreme Court will review in oral arguments on Tuesday.
But the records from the litigation make clear that he was the driving force behind the decision. Those documents — internal emails, memos and testimony — show that from the beginning of his tenure, Ross dispatched his aides to see that the controversial question was added by any means necessary. They suggest that the administration’s official justification for adding the question — to enhance the Justice Department’s Voting Rights Act enforcement — was just an after-the-fact excuse created to give Ross the legal cover that he needed.
“My job is to figure out how to carry out what my boss asks me to do,” one of Ross’ deputies said in trial deposition. “So you go forward and find a legal rational.”
Three courts have now decided that the contrived excuse used to justify the move helps make it illegal, and two of them have also deemed the question unconstitutional in how it will skew the accuracy of the census. Whether it stays on the 2020 census is ultimately up the Supreme Court.
It is feared that the question will depress participation of immigrant communities in the Census, diminishing their political representation, and that the data it produces will be used to cut out noncitizens from the redistricting process entirely.
Here is a look at just how the question ended up on the census in the first place — a process that included an an exasperated Ross, fumbling aides, and an intervention from none other than then-Attorney General Jeff Sessions.
“Your Question About The Census”
Ross was interested in adding the question to the census almost immediately after he was confirmed, according to the deposition of one of his top Commerce aides, Earl Comstock.
Comstock told Ross he’d “check” on the secretary’s inquiry.
Comstock’s answer came in the form of a March 10 email titled “Your Question About The Census” with links explaining that noncitizens were counted for apportionment and that the government relied on on smaller-scale surveys, rather than the comprehensive decennial census, to count immigrants.
Ross in spring 2017 also spoke to then-White House advisor Steve Bannon and then-Kansas Secretary of State Kris Kobach about adding the question — an admission made in a October 2018 court filing that contradicted Ross’ previous testimony to Congress.
Kobach recounted his own conversation with Ross in an email he sent a few months later that referenced how adding a citizenship question could affect how congressional seats are doled out across the country, so that certain immigrants can be excluded from that count.
Grilled by Congress last month about Kobach’s motivations, Ross complained that he had “no control over what Kris Kobach or anyone else puts in an email sent to me.” Ross argued that he did not add the specific version of the question Kobach wanted (which would have also asked about legal status) to the 2020 census questionnaire.
Regardless, by mid-April the Commerce Department was working with Mark Neuman — a Trump transition official and Census Bureau alum who never served in the current administration — to get the question added.
“We must get our issue resolved before this!”
Ross didn’t hold back his frustration that, only two months into his tenure, getting citizenship on the census hadn’t been done yet. The issue “must” get resolved by the end of April, he said in one email via an aide. In May, he complained in an email that he was “mystified” as to why “nothing” had been done to carry out his “months old request” to include the citizenship question on the census.
Comstock then outlined a plan of working with the Justice Department, telling Ross he had court cases showing “DoJ has legitimate need” for the question to be added.
Comstock would later testify that, at this point, he had not yet talked to anyone at the Justice Department about the issue — let alone their voting rights experts.
In a deposition for the trial, he would also explain his mindset for getting the question added, claiming that he had no idea what was driving Ross’ push to include it.
“(the whole Comey matter)”
Comstock got to work. On May 4, he used the Commerce Department’s White House liaison to get in touch with the liaison’s Justice Department counterpart, who in turn connected Comstock to a top Justice Department immigration lawyer. Comstock outlined this record of events in a memo for Ross a few months later.
The Justice Department, citing the firestorm over the ousting of FBI Director James Comey, suggested Comstock seek the help of Department of Homeland Security instead. He was rebuffed there as well.
As Comstock worked to find an agency willing to request a citizenship question, Ross continued to quiz his staff on getting the question added.
Almost nowhere in the litigative record, as these discussions continued into the summer, is there a reference to adding the question for Voting Rights Act enforcement. The only exception is a link to the 2006 Supreme Court VRA decision Neuman sent Comstock in April that he said “informs” planning for the 2020 Census.
There are, however, multiple allusions to how adding it could affect congressional apportionment, and the administration officials to whom Commerce reached out to first were focused on immigration.
“I will call the AG.”
Kobach spoke to Ross again on July 25, according to Ross’ calendar.
Ross then upped the pressure on his staff to have it included, as evidenced in an August 8 email where he said he’d call Attorney General Jeff Sessions.
Promising a memo, Comstock also warned that the issue will likely go to Supreme Court so “we need to be diligent in preparing the administrative record.”
By early August 2017, Comstock was working with James Uthmeier, Commerce’s deputy general counsel. Uthmeier described a plan of “execution” in an August 11 email. He that their “hook” could be the argument that Congress “(or possibly the President)” will ultimately decide whether the citizenship data is used for apportionment.
The exchange included a memo that was withheld in the case due to attorney-client privilege. House Democrats are currently trying to get their hands on it.
According to calendar entries and emails, top Commerce staff continued to meet to discuss the issue. However, in depositions, officials claimed no memory of the meetings.
Per the emails, they also advised against involving Kobach, whom Ross apparently mentioned in a meeting (mistakenly referring to him as the Kansas Attorney General).
The Commerce Department instead turned again to Neuman as it worked on its plan to get the question added, and Uthmeier reached out to him on September 8 to discuss “some Census legal questions” he was working on for Ross.
John Gore, a Trump appointee who had recently taken over the Justice Department’s civil rights division, had by that month become the point person between the Justice Department and Commerce for the Census discussions, which up until that point Commerce had “initiated,” per Gore’s deposition testimony.
He testified that as late as September 8, 2017, around the time he got involved, Justice Department staff was resistant to requesting the question.
Eventually, the attorney general himself was looped in, having previously spoken to Ross about it as early as that spring. The Justice Department blamed the delay in providing Commerce with a request for the question on a “miscommunication”
Ross and Sessions spoke again the next day, on September 18.
Gore meanwhile started pulling together a letter from the Justice Department formally requesting that the Bureau add the question, which was eventually sent with the signatory of a career official rather then the GOP appointee. He got feedback from Justice Department staff, most of them political appointees and only one of them with any experience in VRA litigation
Neuman was also involved in these final steps of solidifying the request, and provided Gore with a draft of the Justice Department request to have the question included, according to a Gore interview with the House Oversight Committee.
“We are out of time.”
By Thanksgiving, the request still hadn’t been finalized, prompting another frustrated email from Ross on November 27.
The letter was finally sent on Dec. 12, marking the first time the Census Bureau itself — rather than its overseers at Commerce — got word of interest in adding question, as its chief scientist John Abowd testified at trial.