Thanks to two court decisions in New York, the Trump administration may be about to confront a moment of reckoning over one of its most controversial decisions: to include on the 2020 Census a question demanding to know the citizenship of those surveyed.
Specifically, Judge Jesse Furman of the U.S. District Court for the Southern District of New York has ordered depositions from Commerce Secretary Wilbur Ross, who is accused in at least five lawsuits of misrepresenting his reasons for the census decision, and from Acting Assistant Attorney General John Gore, head of the department’s Civil Rights Division, who the lawsuits and documents say helped Ross. On Tuesday, the U.S. Court of Appeals for the 2nd Circuit, based in New York, upheld Furman’s decision to depose Gore, a move the government had resisted.
The stakes are extremely high.
Ross’s census decision in March was criticized by states with large immigrant and minority populations as well as immigrants’ rights organizations and Democratic leaders, who said it could repress the response rate from minorities of immigrant descent, particularly Latinos. Advocates say the question decision could produce an undercount that could significantly alter congressional redistricting, which is based on the census, as well as the distribution of federal funding.
The struggle became even more explosive because of documents showing that Ross, who by virtue of being commerce secretary oversees the Census Bureau, didn’t initially tell the full story about how and why he acted. That and other factors suggested, in Furman’s opinion, that the government acted in “bad faith” to conceal discriminatory intent.
A trial will decide those allegations, which the government denies.
In the meantime, Furman and the plaintiffs in the case, which include 18 states and the District of Columbia, want answers from Ross and the Justice Department. And they may soon have a chance to get them in the Gore deposition and perhaps that of Ross.
The Justice Department had no comment Tuesday night about whether it would appeal that ruling or Furman’s order to depose Ross. Although the government has told Furman it would challenge any Ross order, the appeals court decision on an unusual writ of mandamus filed by the government suggested that the administration might have a difficult time protecting the secretary from the same result.
Furman, the three-judge appellate panel said as it rejected the government’s position, “made careful factual findings supporting” his conclusion that further information was required in the case. Such information “may be appropriate when there has been a strong showing in support of a claim of bad faith or improper behavior on the part of agency decision-makers,” the panel said. The case is State of New York et al v. the Department of Commerce.
The government has vigorously resisted letting either man be questioned or bringing in witnesses or evidence not already part of the court record.
Although the administration has denied any discriminatory effect or intent, five lawsuits, including the one in New York, are pending.
The whole battle has been simmering in the courts under the radar, lost amid wave after wave of Trump Twitter storms and donnybrooks over the Russia investigation, and now over the Supreme Court nomination of Judge Brett M. Kavanaugh. But in courtrooms nationwide, particularly in Furman’s courtroom in the Southern District of New York, it was not forgotten.
On March 26, Ross directed the Census Bureau to include a question on the 2020 census about the citizenship of people being surveyed. Ross acted, he claimed at the time, in response to a letter from the Justice Department, specifically from Gore, saying the information was for the benign purpose of enforcing the Voting Rights Act.
Ross had days earlier told the House Ways and Means Committee exactly the same thing: The “Department of Justice, as you know, initiated the request inclusion of the citizenship question,” he said.
Ross’s announcement provoked a wave of lawsuits contending, among other things, that inclusion of the citizenship question was an unconstitutional act of discrimination and that the way it was made violated federal law and procedure.
Then, on June 21, Ross dropped a bombshell in the middle of the case.
He had not told the full story, he informed the courts in a “supplemental memorandum.” Ross said in the letter that he had been considering adding the citizenship question for some time before bringing in the Justice Department. Ross got the department to “initiate” the request, asking for a letter from Gore that claimed that the question was necessary to enforce the Voting Rights Act. “My staff and I consulted with Federal governmental components and inquired whether the Department of Justice would support, and if so would request, including of a citizenship question as consistent with and useful for enforcement of the Voting Rights Act,” Ross wrote.
There were more revelations to come. Freedom of Information Act documents later showed that a year earlier, then-White House strategist Stephen K. Bannon had discussed the question with Ross.
At Bannon’s direction, so had Kris Kobach, the Kansas secretary of state placed in charge of President Trump’s now-defunct commission on voter fraud.
The reasons, the documents suggested, had nothing to do with the Voting Rights Act and everything to do with congressional redistricting. All of this is now part of the court record.
Asked about the new documents by The Washington Post’s Tara Bahrampour at the time, a Commerce Department spokesman called everything standard practice. Speaking on the condition of anonymity, he said “executive branch officials discussing important issues before formulating policy is evidence of good government.”
Furman, appointed by President Barack Obama, wants to get beyond the anonymity and has made no secret of his skepticism about the administration’s motives. The government’s behavior — the Ross letter included — suggested that “Secretary Ross’s sole proffered rationale for the decision, that the citizenship question is necessary for litigation of Voting Rights claims, may have been pretextual,” a cover story, he said in a scathing opinion on July 26 that let the case go forward.
That, and a lot of other factors, Furman said, left open the strong possibility — worth going to trial to determine — that “Secretary Ross’s decision to reinstate the citizenship question on the 2020 census was motivated by discriminatory animus and that its application will result in a discriminatory effect.”
“While Secretary Ross initially (and repeatedly) suggested that the Department of Justice’s request triggered his consideration of the issue, it now appears that the sequence of events was exactly opposite,” Furman wrote.
The Commerce Department has denied that.
Even after Ross’s admission, the Commerce Department told The Post in July that “Secretary Ross clearly explained his decision to reinstate the citizenship question on the 2020 Decennial Census in his March 26 decision memorandum, which details his exhaustive examination and review of the relevant data.”
Furman strongly disagrees.
“Defendants — and Secretary Ross himself — have placed the credibility” of Ross “squarely at issue,” he wrote in his order. He added: “Additionally, in sworn testimony before the House of Representatives, Secretary Ross
claimed that DOJ had ‘initiated the request for inclusion of the citizenship question.’ ”
“The record developed thus far, however,” added Furman, “casts grave doubt on these claims. … Equally significant, Secretary Ross testified under oath that he was ‘not aware’ of any discussions between him and ‘anyone in the White House’ regarding the addition of the citizenship question. …
“But there is now reason to believe that Steve Bannon, then a senior adviser in the White House, was among the ‘other government officials’ whom Secretary Ross consulted about the citizenship question.”
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