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Wilbur Ross’s false claim to Congress that the census citizenship question was DOJ’s idea

Commerce Secretary Wilbur Ross told Congress a question on immigration status was added to the 2020 census at the request of the Department of Justice. (Video: U.S. House Ways and Means Committee)

“I am mystified why nothing have [sic] been done in response to my months old request that we include the citizenship question. Why not?”
— Commerce Secretary Wilbur Ross, in an email about adding a citizenship question to the census, May 2, 2017

“Department of Justice, as you know, initiated the request for inclusion of the citizenship question. … Because it is from the Department of Justice, we are taking it very seriously, and we will issue a fulsome documentation of whatever conclusion we finally come to.”
— Ross, testifying before the House Ways and Means Committee, March 22, 2018

Who came up with adding a citizenship question to the 2020 Census?

Ross, who oversees the Census Bureau and approved the question, said in congressional testimony that it came from the Justice Department. But emails released as part of an ongoing court challenge show that Ross was working to add the citizenship question months before the Justice Department sent a letter in December 2017 with detailed reasons and a formal request.

The Justice Department says it needs more precise data on who is and isn’t a U.S. citizen to better safeguard minority voters’ rights. Critics of the plan say the census already provides reliable data for voting rights cases in a separate survey. The Trump administration’s changes to the census could produce an undercount, they add, if immigrants who don’t have citizenship or legal residence stay away for fear of being deported.

More than a dozen states and cities and a range of groups are suing to block Ross’s move, calling the citizenship question a ruse by the Trump administration to weaken the political power of heavily Democratic states with large immigrant populations. Census data is used to allocate federal funds, draw legislative districts and reapportion congressional seats.

We previously fact-checked some of the key claims in this debate. Newly released documents in the court record show that Ross did not recount the entire process that led to the adoption of the citizenship question in his sworn testimony to the House Ways and Means Committee on March 22. Let’s dive in.

The Facts

Ross said the Justice Department “initiated the request for inclusion of the citizenship question” as a way to compile data on who is and isn’t eligible to vote at a granular, census-block level. The stated goal is to beef up enforcement of Section 2 of the Voting Rights Act, which “prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups” recognized by law.

“This data is critical to the Department’s enforcement of Section 2 of the Voting Rights Act and its important protections against racial discrimination in voting,” Arthur E. Gary, general counsel of the Justice Department’s Justice Management Division, wrote in a letter to the Census Bureau dated Dec. 12, 2017. “To fully enforce those requirements, the Department needs a reliable calculation of the citizen voting-age population in localities where voting rights violations are alleged or suspected.”

Justice Department lawsuits under Section 2 often seek to block vote dilution. Let’s say more than 50 percent of eligible voters in a district are part of a minority group. If that district has rules or processes that prevent those voters from electing a representative of their choice, officials might file a vote dilution suit. The key to such cases is measuring minority voters as a share of the total voter population. Only citizens have the right to vote, so figuring out the total number of voting-age citizens is the same as figuring out total voter population.

The census itself has not included a citizenship question since 1950, so the Justice Department for years has taken citizenship data from the American Community Survey. This long-form questionnaire, sent out as a census supplement, includes a citizenship question. But the Census Bureau sends it only to 3.5 million households a year, or one out of every 38.

Joseph R. Fishkin, a law professor at the University of Texas, previously told The Fact Checker that the “ACS data has not interfered at all with the DOJ’s ability to enforce Section 2 of the VRA.”

“The reason is that citizenship data is only used in VRA enforcement in one way: as a piece of predicting whether minority voters are going to end up winning or losing in a given district,” Fishkin said. All kinds of numbers and estimates go into predicting the outcome of an election, he added.

“In particular, the error bars on rates of voter registration, and turnout among those voters who are registered, along with effects of incumbency and other variables, are all much, much larger than any difference in precision between ACS and Census citizenship data,” Fishkin said. “In other words, compared to other variables that we are putting into the same equation, ACS citizenship data is more than sufficiently precise.”

The Justice Department hasn’t filed Section 2 enforcement cases since Trump took office, and it filed only five such cases during Barack Obama’s administration, according to a DOJ list. Only two of those were vote dilution cases.

Six former Census Bureau directors sent Ross a letter dated Jan. 26 arguing that the citizenship question “will considerably increase the risks to the 2020 enumeration.” ProPublica reported March 27 that career staff in the Census Bureau advised Ross against adding the question for “fear it will depress response rates, especially from immigrants,” but that Ross overruled them. He said in a March 26 memo announcing his decision that “neither the Census Bureau nor the concerned stakeholders could document that the response rate would in fact decline materially.”

Before Ross’s emails and other documents were released July 24 as part of the multistate litigation, the secretary issued a supplemental memo June 22 in which he disclosed that he had been considering adding the citizenship question since he assumed office in February 2017 and that he and his staff had “inquired whether the Department of Justice (DOJ) would support, and if so would request, inclusion of a citizenship question.” Email records show the Justice Department was onboard.

The Justice Department's request to add a citizenship question on the 2020 U.S. Census was granted. Here's how that could affect voting districts. (Video: Joyce Koh, Daron Taylor/The Washington Post)

Looking at the full picture, there are several reasons to be skeptical of the Justice Department’s rationale for adding the citizenship question — but what’s clear is that Ross was pressing this cause since he joined the Trump administration and in May 2017 called it “my months old request that we include the citizenship question,” well before the Justice Department articulated in a December 2017 letter why the question was needed.

In short, it seems like the fix was in and Ross gave a sanitized version of events to Congress.

After appearing March 22 before the House Ways and Means Committee, Ross repeated his claim about the Justice Department in a May 10 hearing before a Senate Appropriations subcommittee. He said he “got the request from the Department of Justice” and later said “the Justice Department is the one who made the request of us.”

Democrats on the panel pressed Ross several times on the citizenship question. “There is a great deal of concern that adding this question is going to lead to a drop of participation, particularly among immigrant communities who may not understand that census data is not to be shared and may be afraid the data that is gathered will be shared with other departments,” Sen. Jeanne Shaheen (D-N.H.) told Ross.

Ross said: “The census group itself feels that it is a manageable decline. There will be some decline. Anytime you add another question, particularly one that certain parts of the population might find challenging, there will be a little diminution in it.”

The Commerce Department said through a spokesman that “Secretary Ross was truthful to Congress.” Here’s its statement:

“Executive branch officials discussing important issues prior to formulating policy is evidence of good government, and the Secretary’s previous testimony before Congress is consistent with that fact. Secretary Ross clearly explained his decision to reinstate the citizenship question on the 2020 Decennial Census in his March 26, 2018 decision memorandum, which details his exhaustive examination and review of the relevant data.
“Recent document productions further demonstrate the Secretary’s commitment to taking a hard look at the alternatives presented to him by the Census Bureau. It shows an open, frank, and interactive dialogue between the Secretary and his staff. Nothing in the supplemental production changes the sound rationale he articulated in March, nor does it contradict his prior congressional testimony. These documents also demonstrate that the citizenship question was one of many important Decennial Census issues that the Secretary began considering shortly after his arrival.”

None of this is evidence that Ross gave complete testimony to Congress. In the March 26 memo the spokesman referenced, Ross specifically said he “set out” to explore adding the citizenship question upon DOJ’s request. “Following receipt of the DOJ request, I set out to take a hard look at the request and ensure that I considered all facts and data relevant to the question so that I could make an informed decision on how to respond,” he said.

A federal judge ruled July 26 that the states, cities and groups behind the court challenge “plausibly allege” that Ross’s “decision to reinstate the citizenship question was motivated at least in part by discriminatory animus and will result in a discriminatory effect,” allowing the case to move forward. U.S. District Judge Jesse Furman said President Trump himself may have been involved in the decision. The judge also pointed out that Ross as commerce secretary has “broad authority” over census matters, as NPR reported.

Furman has said Ross’s statements about the origin of the citizenship question “were potentially untrue.”

“It now appears that the idea of adding the citizenship question originated with Secretary Ross, not the Department of Justice, and that its origins long predated the December 2017 letter from the Justice Department,” the judge said in Manhattan federal court during a hearing on July 3, according to NPR.

The Pinocchio Test

There’s good reason to be skeptical of the Trump administration’s rationale for adding the citizenship question to the 2020 Census, but there’s another important issue here: Ross’s sworn testimony to Congress.

The commerce secretary said the Justice Department had “initiated the request” for a question about citizenship status. Only months later — after the Trump administration was sued — did we learn that the Justice Department was taking its cues from Ross all along.

Questions about misleading or incomplete testimony are for Congress to decide. In the meantime, we’re giving Four Pinocchios to Ross.

Four Pinocchios

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“Department of Justice, as you know, initiated the request for inclusion of the citizenship question [in the 2020 Census].”
in testimony to the House Ways and Means Committee
Thursday, March 22, 2018