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Wilbur Ross: The simple but explosive questions about the census he’s fighting not to answer

Secretary of Commerce Wilbur Ross in London in November 2017. (Andy Rain/EPA-EFE)
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When Commerce Secretary Wilbur Ross announced in March that he was adding a question about citizenship to the 2020 Census — a move that critics say was motivated by ethnic bias that will produce an undercount favoring Republicans — he stated the move was initiated by the Justice Department in the interests of better enforcement of the Voting Rights Act.

That turned out not to be the way it happened.

It was Ross who initiated the action. He had been thinking about it for months. And he asked the Justice Department if it would say it needed the citizenship information, which it then did.

In a memorandum submitted to the courts three months later as lawsuits were filed, as The Washington Post’s Tara Bahrampour reported, he admitted he solicited the Justice Department’s request after “other senior administration officials” raised the idea. He did not identify the officials.

Who were those other officials and what exactly did they say?

When top aides to Ross — chief of staff Wendy Teramoto and Commerce’s director of policy and strategic planning Earl Comstock, among others — were asked those questions in depositions by lawyers for groups that challenged the question, both pleaded ignorance.

Each said, respectively, “You would have to ask Secretary Ross” and “You’d have to ask the secretary,” according to court documents.

“Ask the secretary” is what the plaintiffs, including the attorneys general of New York and the District of Columbia, now want to do.

But Ross doesn’t want to answer. To avoid doing so, he has gone to the Supreme Court just days before his deposition was to have taken place. While an appeals court declined to block Ross’s deposition, Justice Ruth Bader Ginsburg put the issue on hold Tuesday at the request of the government pending responses from the plaintiffs by 4 p.m. Thursday.

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A census every 10 years is required by the Constitution for purposes of apportioning representation in Congress, which is reflected in the electoral college. So this is no small matter.

Ross’s authority derives from the fact that the Census Bureau is housed in the Commerce Department. Just days before Ross made his announcement, President Trump’s 2020 reelection campaign boasted that “The President wants the 2020 United States Census to ask people whether they are citizens. In another era, this would be COMMON SENSE.”

The plaintiffs in the combined case, State of New York et al v. U.S. Department of Commerce, include 18 states and the District of Columbia, as well as a host of cities, counties, mayors and advocacy groups, such as the New York Immigration Coalition. All of them say they would be hurt by an undercount that would result from the reluctance of immigrants to respond to a census that also asked about their citizenship. They could lose representation and money, which often is allocated by census demographic data.

Lawyers for the plaintiffs already know from documents in the record some of the people Ross heard from about adding the question. Among them, for example, was Stephen K. Bannon, who at the time was a top White House adviser. Another was Kris Kobach, who headed Trump’s now-defunct election fraud commission and has since been held in contempt of court by a judge in connection with a lawsuit over a voter ID law in Kansas, where he is a chief elections official. And a third was Attorney General Jeff Sessions.

But the plaintiff’s lawyers don’t know all those who were involved and what they said in their communications with Ross.

Thus they can’t get at evidence of the motives behind the decision, which is what they are seeking.

They want Ross to “identify the ‘other senior Administration officials’ who ‘previously raised’ ” the idea, the plaintiffs stated in a court document, and to describe the “substance and details of the Secretary’s early conversations with Attorney General Sessions” and other “third parties.”

The answers to those questions are part of a larger, explosive case they’re trying to make that in adding the citizenship question, the Trump administration was motivated by bias against immigrants, particularly immigrants of color.

In July, Judge Jesse M. Furman in the Southern District of New York ruled that the plaintiffs had a good case, sufficient to go to trial and take depositions.

“They plausibly allege that Secretary Ross’s decision to reinstate the citizenship question … was motivated by discriminatory animus and that its application will result in a discriminatory effect,” he said. That conclusion, he said, is supported by, among other things, Ross’s misleading original account of how and why he made the decision, which was evidence that the explanation was “pretextual,” a cover story for the administration’s real reasons.

All of this has been denied by government lawyers who maintain that Ross, while he did indeed consult with other officials, was only doing what the Justice Department desired, being “helpful to its enforcement duties under the Voting Rights Act …”

The plaintiffs argue that they need Ross’s deposition because he “has unique, first-hand knowledge” related to the case “based on his own personal participation in critical conversations” and that the knowledge, as exemplified by the depositions given by Ross’s aides, can’t be obtained anywhere else.

A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit agreed with them Tuesday. “The District Court, which is intimately familiar with the voluminous record, applied controlling case law and made detailed factual findings supporting its conclusion that Secretary Ross likely possesses unique first-hand knowledge central to the Plaintiffs’ claims,” the panel wrote. “As the District Court noted, deposition testimony by three of Secretary Ross’s aides indicated that only the Secretary himself would be able to answer the Plaintiffs’ questions.”

Solicitor General Noel Francisco, in his Oct. 9 submission to the Supreme Court, argued that everything the plaintiffs legitimately need is available in a “voluminous administrative record” handed over to the district court. A ranking decision-maker’s “mental processes are generally irrelevant to evaluating the legality of agency action,” he argued. And “compelling the testimony of a high-ranking government official — especially a member of the President’s Cabinet — is rarely if ever justified.”

At least two other federal judges, one in the Northern District of California and another in Maryland, have also ruled against the Commerce Department on the census question. Judge George J. Hazel, in Maryland, specifically cited Ross’s statements as evidence of “bad faith” and pretext.

The record “suggests that the citizenship question was an answer in search of a problem,” Hazel wrote. “There is evidence indicating that the Secretary and other senior administration or campaign officials were determined to include the citizenship question in the 2020 census and sought out the DOJ to provide a legally-defensible reason to so. All of this appears to be at odds with the Secretary’s public explanation for his decision.”

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