How the Trump Administration Fought to Ask About Citizenship on the Census

How the Trump Administration Fought to Ask About Citizenship on the Census

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Commerce Secretary Wilbur Ross testified under oath that the citizenship question was requested by the Justice Department. Documents show otherwise.CreditCreditLuke Sharrett for The New York Times

By Michael Wines

WASHINGTON — Wilbur L. Ross Jr. had been Commerce secretary for less than three months, and he was growing impatient.

The billionaire investor entered office promising to renegotiate trade deals. But he had another, less visible priority: adding a question about citizenship status to the 2020 census, which the Commerce Department supervises.

“I am mystified that nothing has been done in response to my months-old request that we include the citizenship question,” he groused in a May 2017 email to an aide tapped out on his iPhone. “Why not?”

Mr. Ross’s tenacity paid off. In March he announced that the next census would in fact ask respondents whether they are American citizens. The backlash was immediate, with experts saying the question would deter immigrants and minorities from responding, leaving them badly undercounted. Lawsuits by state attorneys general, advocacy groups and a host of cities quickly followed.

Pressed on whether partisan politics colored consideration of the question, Mr. Ross said in sworn testimony to Congress in March that he was responding “solely” to a Justice Department request for data to enforce the 1965 Voting Rights Act. He also said he knew of no talks with the White House about the matter.

But that story has since unraveled.

Internal government documents produced in the principal lawsuit on the issue, in New York, show Mr. Ross pressured the Justice Department to request the citizenship question, not the other way around. They also show the involvement of President Trump’s chief strategist at the time, Stephen K. Bannon, in the discussions. After Mr. Bannon requested that Mr. Ross “talk to someone about the census,” Mr. Ross met with Kris Kobach, a fierce immigration opponent whom President Trump had appointed to a panel on voter fraud.

The federal judge in the main lawsuit ordered Mr. Ross to testify under oath, stating that “his intent and credibility are directly at issue,” but last month the Supreme Court at least temporarily blocked the testimony. Another deposition of a senior Justice Department official who worked with Mr. Ross on the question went ahead as scheduled.

The lawsuit, which goes to trial on Monday, could have profound ramifications. Census figures determine not only where hundreds of billions of dollars in federal funds are spent, but how the House of Representatives — and by extension, the Electoral College — and other political districts are remapped every decade to reflect population changes. Because immigrants and minorities disproportionately vote Democratic, a depressed head count could also expand Republican Party control when new political boundaries are drawn in 2021.

While Mr. Ross has insisted that there is no clear evidence that the citizenship question would deter people from filling out census forms, the Census Bureau’s own researchers repeatedly have found just that. In a memo last fall and in summaries of focus groups this spring, they noted that a wide range of ethnic minorities had voiced fears that the government would use citizenship information to persecute or even deport them — and one group with Vietnamese heritage even abandoned a focus group after learning that the next census would ask about citizenship.

“There’s no question that reapportionment would be affected by a citizenship question, and it’s hard to believe the administration doesn’t know it,” said Phil Sparks, a co-director of the nonpartisan Census Project, an alliance of groups with a stake in an accurate population count. “This is a political and partisan move on the part of the Trump administration to try to stack the deck on the census.”

Many critics see the question as the opening volley in an emerging conservative campaign to eliminate noncitizens entirely from population counts used for redistricting. The 14th Amendment requires the House to be apportioned based on “the whole number of persons in each state,” and the Supreme Court has long ruled that the “whole number” includes noncitizens.

Asked for comment, the Commerce Department said this month that nothing in the documents contradicted the rationale Mr. Ross offered to Congress in March.

“Executive branch officials discussing important issues prior to formulating policy is evidence of good government,” a department spokesman, Kevin Manning, said. The court documents “reinforce that executive branch officials worked together to ensure that Secretary Ross received all of the information necessary to make an informed decision.”

Mr. Ross sought help early on the citizenship question. But when Earl Comstock, Mr. Ross’s head of policy and strategic planning, asked the Justice Department, he was rebuffed by its top immigration law adviser, James McHenry.

“James said that Justice staff did not want to raise the question given the difficulties Justice was encountering in the press (the whole Comey matter),” Mr. Comstock wrote in a later memo, referring to President Trump’s decision that same month to fire the F.B.I. director James Comey.

Mr. Comstock was shunted to Gene P. Hamilton, a Department of Homeland Security official who helped formulate immigration policy during the presidential transition. But he, too, demurred; Homeland Security “really felt that it was best handled by the Department of Justice,” Mr. Comstock wrote.

Mr. Ross, meanwhile, was getting support from other sources, including Mr. Kobach, who earlier had pitched a hard-line immigration strategy to Mr. Trump in a bid to become secretary of Homeland Security.

After meeting with Mr. Ross at Mr. Bannon’s request that spring, Mr. Kobach reached out again in a July 2017 email, arguing that including noncitizens “who do not actually ‘reside’ in the United States” in census figures used for reapportionment was a problem.

His solution: Identify noncitizens by adding to the 2020 census a question on citizenship that already was asked in the American Community Survey, an annual census of economic and social matters covering a small fraction of the public. Mr. Ross followed up with a phone conference with Mr. Kobach 10 days later. (Neither Mr. Kobach nor Mr. Bannon responded to requests for comment.)

Two months later, the Justice Department appeared suddenly willing to help. On Sept. 17, a top aide to Attorney General Jeff Sessions sent Mr. Sessions’s cellphone number to Mr. Ross’s chief of staff, Wendy Teramoto.

“It sounds like we can do whatever you all need us to do,” the aide wrote. “The AG is eager to assist.”

Mr. Ross spoke with Mr. Sessions, then ordered his general counsel to “follow up so we can resolve this issue today.” Yet Mr. Ross dispatched weeks of emails demanding progress, to little avail.

On Nov. 23, he joined Mr. Trump for Thanksgiving at Mar-a-Lago, in Mr. Ross’s native Palm Beach. Upon his return, he fired off another message to his general counsel. “We are out of time,” it read. “Please set up a call for me tomorrow with whoever is the responsible person at Justice. We must have this resolved.”

The Justice Department’s long-sought request finally materialized on Dec. 12. Three pages long, it called the citizenship question “critical” to getting precise enough data on noncitizens to enforce the Voting Rights Act. Citizenship data from the American Community Survey, it said, was not granular enough.

Census Bureau experts say that is untrue, noting that the Voting Rights Act has been enforced since 1965 with data from the community survey or its equivalent. Regardless, the new question sent Census Bureau staff scrambling. Because there are so few questions on the census, making accurate responses crucial, the bureau typically field-tests new questions for years before deciding whether to use them.

Now Ron S. Jarmin, the bureau’s acting director, had only months to complete that evaluation by April 1, the deadline to notify Congress of the 2020 questions.

But inside the bureau, resistance to the question was growing, with the agency’s chief scientist, John M. Abowd, concluding that the question was unnecessary. By melding existing data, he wrote, the bureau could give Justice more accurate citizenship data than could a census question — and more cheaply.

A citizenship question “is very costly, harms the quality of the census count, and would use substantially less accurate citizenship status data than are available from administrative sources,” he wrote. It also would deter at least 630,000 households from completing the form.

Mr. Jarmin, the acting bureau director, asked to brief the Justice Department on Mr. Abowd’s findings. But Mr. Sessions personally rejected that, court documents show, ordering underlings not to consider ways of gathering citizenship data beyond the citizenship question.

News of the request, meanwhile, unleashed storms of protest from demographers, former census directors, and stakeholders — shopping-center operators, philanthropies, even A.C. Nielsen, the marketing research colossus — that depend on accurate census results. Private experts and academics on the Census Scientific Advisory Board labeled the citizenship question “a serious mistake which would result in a substantial lowering of the response rate.”

The comparative smattering of supporters included one former census director, some Republican state attorneys general and leaders, including Senator Ted Cruz of Texas.

As Mr. Ross began the obligatory process of formally polling influential stakeholders, Mr. Jarmin scrounged for credible backers of the question. “Most stakeholders will speak against the proposal,” he wrote Michael R. Strain, the director of economic studies at the conservative American Enterprise Institute, in February. “We’re looking to find someone thoughtful who can speak to the pros.”

Mr. Strain’s response: “None of my colleagues at AEI would speak favorably about the proposal. Is it important that the person actually be in favor?”

Five weeks later, Mr. Ross announced that he was ordering the question added to the 2020 census.

To some, the citizenship question dispute looks overblown. Before 1940, many general censuses did ask about citizenship status; since then the question has appeared on so-called long-form censuses or the American Community Survey, both polling a small slice of the population. Asking everyone, advocates say, is not so different.

But some focus groups conducted by Census Bureau contractors since Mr. Ross’s announcement suggest otherwise. In them, people of Hispanic, Chinese, Middle East, North African and Vietnamese heritage expressed skepticism and mistrust of the count and of assurances that the data would remain confidential.

Already upset by administration policies and rhetoric, Middle East and North African respondents in Detroit and Los Angeles said the citizenship question was “an indicator that things were not going well for people ‘like them.’”

In three Latino focus groups, participants raised the citizenship question even before they could be asked about it.

“While all participants expressed the desire to be counted,” the summary stated, “fear of deportation outweighs any benefit.”

Whatever the result of the lawsuit in New York, the use of the citizenship question is likely to reach the Supreme Court, an outcome the Commerce Department has anticipated.

“Since this issue will go to the Supreme Court,” Mr. Comstock, an aide to Mr. Ross, warned his boss in an email in August 2017, “we need to be diligent in preparing the administrative record.”

Replied Mr. Ross: “We should be very careful, about everything, whether or not it is likely to end up in the SC.”

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