The census is usually a dull affair. But thanks to the Trump administration, it’s now a slow-boiling controversy that might take down Commerce Secretary Wilbur Ross, whose department administers the census, and who appears to have lied under oath to Congress.
The reason is a single question that the administration has sought to add to the census: whether the respondent is an American citizen. On the surface, this may seem innocuous, but based on several studies, it will almost certainly lead to under-participation by communities of color, especially Latinos. As a result, some states will have less representation in the House of Representatives than they otherwise should and will get less money from the federal government. “Blue states” like California and New York would be hardest hit, as would Texas, which is increasingly Democratic.
In other words, the citizenship question is another tactic of voter suppression.
Secretary Ross approved the question on March 26, but there are now six lawsuits over the change. One of them is headed to the Supreme Court, in what will likely be Justice Brett Kavanaugh’s first politically contentious case.
From the start, the proposal was controversial, and opposed by nearly every expert on the census who voiced an opinion about it. Independent experts all agreed it would deter Latinos from answering the census for fear of exposing themselves or family members to deportation or investigation. But whose idea was it?
In March, Secretary Ross testified under oath that the Department of Justice asked him to make the change in a December 2017 letter, so that they could better enforce the Voting Rights Act.
But emails uncovered in one of the lawsuits revealed that that was a lie. In fact, Ross had requested that DOJ send the letter to justify the policy change that he’d already decided to make. So if not the Justice Department, then who?
Turns out, Ross also lied under oath about whether he’d talked with presidential advisers Steve Bannon and Kris Kobach. Ross testified that he had not—but now we know that he had discussed the issue with them in the spring of 2017, and that Kobach proposed the specific language for the citizenship question.
Kobach was the architect of voter suppression in Kansas, where as secretary of state he suspended more than 36,000 Kansas voters, disproportionately people of color. Then he was unable to prove any cases of fraud in a federal lawsuit. Kobach then went on to head Trump’s discredited “voter fraud” commission, which disbanded before finding a single instance of fraud. He is now the Republican nominee for the governor of Kansas, having won the primary under suspicious circumstances.
Phil Sparks, co-director of the Census Project, a coalition of around 200 stakeholder organizations “committed to a fair and accurate census,” told The Daily Beast that the citizenship question was a “blatant political move.”
“ The census is one of the few government functions that’s embedded in the Constitution. ” — Phil Sparks, the Census Project
Ross even lied about the “fact-finding” meetings he held in early 2018 with civil rights and community organizations. But now we know that his mind was already made up.
“Those were sham interviews!” Sparks said.
“We were—to put it mildly—totally dismayed by his actions in March 2018,” Sparks said, “but also confounded and confused by his misleading statements to stakeholders a year earlier when he initiated the process.”
Sparks noted that the Census Project is a non-partisan coalition, including business, labor, trade organizations, and several chambers of commerce.
The six lawsuits allege that the citizenship question is unconstitutional—“the census is one of the few government functions that’s embedded in the Constitution,” Sparks observed—as well as adopted without the necessary administrative review. The leading suit is taking place in New York and joined by 18 state attorneys general.
The question now is whether Secretary Ross can be compelled to give a sworn deposition in the lawsuit. The federal judge in the New York case has ordered him (as well as John Gore, the official from the Justice Department who allegedly came up with the pretext for the change) to do so, but the Trump administration has appealed that decision straight to the Supreme Court.
A decision from the Court is expected any day now. Justice Ginsburg, who was assigned the appeal, temporarily halted the order last week. She may decide the matter herself, or all the justices may rule immediately, or the Court may request full briefing and oral argument. In any case, the Court is expected to act quickly, since the printing of 2020 census forms is set to begin in just a few months.
If the matter is referred to the full court, it will be Justice Kavanaugh’s first politically contentious case.
Even without Ross’s and Gore’s depositions, the documents unearthed already led Republicans and Democrats alike to demand answers from Secretary Ross.
"The Trump administration has never told the American people the truth about the citizenship question, and it is increasingly clear that DOJ engaged in pretextual exercise to justify a political decision that could have serious consequences for the accuracy of the census," said Austin Evers, Executive Director of American Oversight, said in a statement.
Democrats, meanwhile, have vowed to nix the citizenship question entirely if they retake control of Congress in 2019.
As is often the case though, at this point the cover-up may be bigger than the crime, so to speak. Regardless of who said what to whom about the citizenship question, Ross clearly misled Congress in his sworn testimony, and that may have its own set of consequences. Making a false statement to a government agency is a felony, and the FBI could launch a criminal investigation, especially if directed to do so by a newly Democratic House committee.
Given the clear contradiction between Ross’s testimony and the email record, the investigation should be an open and shut case.
That is, if this “silent scandal” can command anyone’s attention in a year of 15-minute news cycles, Russia probes, Supreme Court nomination fiascoes, foreign policy snafus, and midterm elections.
Sparks said that it should. The Census Bureau’s goal is to “count everyone once, only once, and in the right place.” Yet Ross has undermined that goal by transparently playing politics. “The census data will be used to reapportion Congress,” Sparks said. “That’s the jewel in the crown.”
Deeper still, the question is profoundly un-American.
“The Founding Fathers understood the importance of the decennial census,” Sparks said. “That’s why they mandated it in the Constitution. They knew that political power should shift every ten years as states gain or lost population... These are not normal political times.”