For months, experts warned Commerce Secretary Wilbur Ross that asking about citizenship on the 2020 Census would result in an undercount of minorities, particularly Latinos.
Ross pushed ahead anyway. He had made up his mind long before consulting them, a decision that could have potentially “massive and lasting consequences.” Then he created a “sham” account of a deliberative process that he thought would pass muster in the courts to “obtain cover for a decision” he and his political aides had “already made.”
That’s the conclusion of a new 277-page opinion by U.S. District Judge Jesse Furman. Furman, an appointee of President Barack Obama in the Southern District of New York, ordered the administration to halt its plans to add the citizenship question to the 2020 census.
In his opinion, Furman accused Ross and his team of misleading Congress, the public and the court. They “acted like people with something to hide,” Furman wrote, because “they did have something to hide.”
Furman reviewed thousands of internal documents, trial testimony and depositions. Ultimately, he concluded, Ross and his aides created a “misleading if not false” narrative for Congress, the public and the courts. The judge called it an “egregious” violation of the Administrative Procedure Act, which is supposed to guarantee “reasoned” judgments and integrity in decision-making by agency officials, including serious consultation with experts.
Furman’s opinion offers a detailed and searing narrative, a tale of government deceit that paints a stark picture of top government officials contriving one version of events for public consumption while keeping the real story to themselves.
The version for public, and congressional, consumption was summarized by Ross in a March 26 memorandum and in testimony before the House Appropriations Committee on March 20. In his public testimony, Ross said he was considering adding the question at the request of the Justice Department so it could better identify violations of the Voting Rights Act, which protects minority voting rights. Following the request, he claimed, he undertook a “hard look” and a “comprehensive review” to make sure adding the question would “provide a complete and accurate” count.
After all, he told Congress, the census is a “foundational” element of “our democracy.”
On March 20, before the committee, Rep. José E. Serrano (D-N.Y.) asked Ross who urged him to consider adding the question. He responded that he was “responding solely to the Department of Justice’s request.”
What really happened, though, was much different, according to the opinion and the accompanying exhibits and testimony.
Shortly after assuming office in February 2017, Ross asked his deputy chief of staff, Earl Comstock, why there was no citizenship question on the census. Comstock said he would check. He responded in an email with a Wall Street Journal article entitled “The Pitfalls of Counting Illegal Immigrants.”
Soon after, Wilbur heard from White House strategist Stephen K. Bannon and Kris Kobach, appointed by President Trump to investigate voter fraud. They wanted him to add a question on citizenship.
By summer, Comstock had launched an effort to persuade the Justice Department to issue a letter asking that the citizenship question be included. Officials there gave him the runaround. “Secretary Ross was plainly out of patience,” Furman wrote, and “decided to take matters into his own hands” by personally contacting then-Attorney General Jeff Sessions.
After that outreach, a Justice official told Ross’s aides that “it sounds like we can do whatever you all need us to do.” What they needed — and ultimately got — was a letter saying that the Justice Department could use the results of the citizenship for voting rights purposes, In fact, Assistant Attorney General John Gore testified during the trial that he did not know whether citizenship data obtained through the census would be "any more precise than” the citizenship information the Census Bureau was already collecting via its American Community Survey. According to trial testimony, there is no evidence anyone asked Justice Department lawyers who would know, in the Civil Rights Division.
So Ross did not act at the request of the Justice Department. The Justice Department acted at his.
Ross and his staff “did more than merely ‘inquire’" whether the Justice Department would support and ask for the question. “Secretary Ross was aggressively pressing” long before Justice got involved, according to Furman’s opinion.
Meanwhile, experts at the Census Bureau remained “in the dark” about what was going on, the judge said. Records submitted to the court revealed that they had “repeatedly and consistently recommended against” adding the question because it would reduce response rates. The same information could be obtained in a “less costly, more effective and less harmful manner,” they told officials.
But they were excluded from the process until the Justice Department got involved.
John M. Abowd, the bureau’s top statistician and a distinguished academic, was asked during the trial: “And no one ever told you during the entire period of time that Commerce Department officials had initiated this entire process, correct?”
“No one told me that,” he responded. As he spoke, Furman noted, “Dr. Abowd choked up and visibly held back tears.”
Ross was lacking internal support, so he began looking for outside experts to bolster his position. He had officials contact the American Enterprise Institute, for example. “We’re looking to find someone thoughtful who can speak to the pros of adding such a question,” said an email from a census official to someone at AEI. A curt response came back from Michael Strain at AEI, a conservative think tank: “None of my colleagues at AEI would speak favorably about the proposal.”
Indeed, practically every expert group he consulted thought it was a bad idea, including his own officials, Nielsen and the Census Scientific Advisory Committee, which told Ross and Sessions it was “a serious mistake which would result in a substantial lowering of the response rate. ... hurting the reputation of the Census Bureau.”
Very little of this information was communicated to Congress, Furman said.
(In a response to the ruling, a Justice Department spokeswoman continued to support Ross’s version of events. “We are disappointed and are still reviewing the ruling," said the spokeswoman, Kelly Laco. “Secretary Ross, the only person with legal authority over the census, reasonably decided to reinstate a citizenship question on the 2020 Census in response to the Department of Justice’s request for better citizenship data, to protect voters against racial discrimination.”)
“Secretary Ross’s actual reasons for his decision are even foggier than the precise timing,” Furman wrote. “There is no writing of any kind ... that describes the reasons Secretary Ross wanted to add a citizenship question within weeks of his confirmation."
If Ross himself had been questioned during the trial, it might have helped clear up some confusion. But the government refused to let Ross testify or be deposed. When the judge tried to subpoena him, the Justice Department successfully went to the Supreme Court and to prevent it.
Comstock testified that Ross never told him, either, and that he never asked, perhaps because the “reason might or might not be ‘legally valid.’”
After the lawsuit was filed, Ross admitted in a submission that he had sought the Justice Department opinion, rather than the other way around.
But we still don’t know why.