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How The 2020 Census Citizenship Question Ended Up In Court

Nov 4, 2018
Originally published on November 5, 2018 8:03 am

Early in the Trump administration, senior officials discussed bringing back a controversial question topic to the census that the federal government has not asked all households about since 1950 — U.S. citizenship status.

The policy idea became reality this March, when — against the recommendations of the Census Bureau — Commerce Secretary Wilbur Ross used his authority over the census and approved plans to add the question, "Is this person a citizen of the United States?"

That decision triggered what could become one of the most influential legal battles over the next decade. More than two dozen states and cities, along with other groups, have filed six lawsuits around the country against the Trump administration to get the question removed.

The first trial of the citizenship question lawsuits is expected to start Monday in New York City. It's expected to last two weeks. No matter which side wins, the district court decisions in all of these cases are likely to be appealed all the way up to the Supreme Court.

Ross argues that the Justice Department needs responses to the citizenship question to better enforce part of the Voting Rights Act. But the plaintiffs cite Census Bureau research showing that in the current climate of stepped-up immigration enforcement and growing anti-immigrant sentiments, asking about citizenship could scare households with noncitizens from participating and undermine the accuracy of the information the census collects.

That, in turn, could taint the critical data that will be used to form the country's underlying power structures through 2030. How many congressional seats and Electoral College votes each state gets after the 2020 head count is determined by that tally. Data from the census are used to redraw political districts at the state and local levels. They are also a guide for distributing an estimated $800 billion a year in federal tax dollars to fund schools, roads and other public institutions and services across the U.S.

How the citizenship question ended up on the census and then in court is documented in a trail of internal emails and memos released as part of the lawsuits. Since their first release in June, the Commerce Department's office of public affairs has generally declined to comment to NPR on the information contained in the documents, citing pending litigation.

"The administrative record shows that the Department of Commerce took a deep dive into the surrounding legal, policy, and program considerations prior to reinstating the citizenship question on the decennial census," Ross said in a written statement in June. "I am confident that after months of review and consideration, this administrative record proves that the return of the citizenship question to the Decennial Census is the right move that will allow our country to have the most complete and accurate census information available."

Contradictions in Ross' congressional testimony about the question, however, have led some Democratic lawmakers to call for investigations into Ross and his decision. It all comes down to why exactly the Trump administration decided to use the 2020 census to find out who living in the country is and isn't a U.S. citizen.

Here's a look back at what we know about the addition of the question to the census and the ensuing lawsuits:

January 2017: The Washington Post and Vox publish what was reported to be a draft executive order that directed the Census Bureau director to "include questions to determine U.S. citizenship and immigration status on the long-form questionnaire in the decennial census." So far, the White House has not issued such an order. The American Community Survey, a Census Bureau survey that replaced the long-form census questionnaire, already includes a citizenship question. The Justice Department has relied on citizenship data from it to enforce the Voting Rights Act.

Feb. 27, 2017: The Senate votes to confirm Wilbur Ross as the head of the Commerce Department, which oversees the Census Bureau.

March 10, 2017: Commerce Department official Earl Comstock emails Ross and then-White House adviser Eric Branstad to confirm that the Census Bureau includes noncitizens living in the U.S., including unauthorized immigrants, in population numbers used to determine how congressional seats and Electoral College votes are distributed among the states.

March 28, 2017: The Census Bureau sends to Congress a report of the question topics it plans to ask for 2020 census. Citizenship is not included among those topics.

April 5, 2017: Ross' then-executive assistant Brooke Alexander emails Ross' wife, Hilary Geary Ross, about Steve Bannon, then-chief White House strategist, wanting Ross to talk to someone about the census.

May 2, 2017: "I am mystified why nothing have been done in response to my months old request that we include the citizenship question," Ross writes in an email to then-Commerce Department official Ellen Herbst and Comstock, who replies: "We need to work with Justice to get them to request that citizenship be added back as a census question."

May 24, 2017: "The Secretary seemed ... puzzled why citizenship is not included in 2020," Commerce Department official David Langdon writes in an email to Census Bureau officials. He asks "what criteria drives us to put" a citizenship question on the American Community Survey — an annual survey that about one in 38 households in the U.S. are legally required to answer — and not the 2020 census, which includes every household.

July 14, 2017: Kansas Secretary of State Kris Kobach emails Ross to "follow up on our telephone discussion from a few months ago." Kobach suggests wording for a citizenship question on the 2020 census that includes response options about immigration status, after noting "the problem that aliens who do not actually 'reside' in the United States are still counted for congressional apportionment purposes."

July 21, 2017: Kobach writes in an email to Ross' then-chief of staff Wendy Teramoto that "at the direction of Steve Bannon," he spoke with Ross "briefly on the phone" about adding a citizenship question "a few months earlier."

July 28, 2017: The acting head of the Justice Department's civil rights division, Thomas Wheeler, has told his staffers he's stepping down, NPR's Carrie Johnson reports. John Gore takes over the unit, which enforces the Voting Rights Act.

Aug. 8, 2017: "Where is the DoJ in their analysis ?" Ross asks Comstock in an email exchange about a citizenship question. "If they still have not come to a conclusion please let me know your contact person and I will call the AG." The next day, Comstock writes back: "Since this issue will go to the Supreme Court we need to be diligent in preparing the administrative record."

Sept. 8, 2017: In an internal memo to Ross, Comstock details how he asked multiple federal agencies if they would request for a citizenship question to be added to the 2020 census. "Justice staff did not want to raise the question given the difficulties Justice was encountering in the press at the time (the whole Comey matter)," he wrote. After reaching out to the Department of Homeland Security, Comstock was referred back to the Justice Department.

Sept. 13, 2017: In an email, Gore asks to speak about "a DOJ-DOC issue" with Teramoto. He later connects her with Justice Department official Danielle Cutrona, who writes in an email: "From what John told me, it sounds like we can do whatever you all need us to do and the delay was due to a miscommunication. The AG is eager to assist."

Sept. 19, 2017: "Wendy and I spoke with the AG yesterday," Ross writes in an email about the census to the Commerce Department's general counsel, Peter Davidson. "Please follow up so we can resolve this issue today."

Nov. 27, 2017: "Census is about to begin translating the questions into multiple languages," Ross writes in a follow-up email to Davidson. "We are out of time. Please set up a call for me tomorrow with whoever is the responsible person at Justice. We must have this resolved."

Dec. 15, 2017: Commerce Department attorney James Uthmeier emails a copy of a Justice Department letter dated Dec. 12, 2017, to the Census Bureau's Acting Director Ron Jarmin. The letter formally requests the bureau to add a citizenship question to the 2020 census to help the department better enforce Voting Rights Act protections against discrimination of racial and language minorities.

Dec. 22, 2017: In response to the Justice Department request, Jarmin tries to set up a meeting between the department and the Census Bureau to discuss an alternative to adding a citizenship question. Compiling existing government records about citizenship, Jarmin writes in an email, "would result in higher quality data produced at lower cost."

Dec. 29, 2017: ProPublica publishes a copy of the Justice Department's request, setting off a public relations scramble at the Census Bureau.

Jan. 19, 2018: The Census Bureau's chief scientist, John Abowd, warns in a memo to Ross that adding a citizenship question to the 2020 census "is very costly, harms the quality of the census count, and would use substantially less accurate citizenship status data than are available" from existing government records.

Feb. 6, 2018: Jarmin confirms in an email that leadership at the Justice Department "do not want to meet" with the Census Bureau to discuss the department's request for a citizenship question. U.S. Attorney General Jeff Sessions directed the DOJ not to discuss alternatives to adding a citizenship question, Gore reveals months later during his deposition.

Feb. 13, 2018: "None of my colleagues at AEI would speak favorably about the proposal. Is it important that the person actually be in favor of the proposal?" the American Enterprise Institute's Michael Strain writes in an email to Jarmin, who's trying to set up calls with groups who may be supportive of the question as part of Ross' formal review of the Justice Department's request. A group of former Census Bureau directors has already spoken out against adding the citizenship question.

March 1, 2018: In another memo for Ross, Abowd recommends against combining responses to a 2020 census citizenship question with existing government records "to create a comprehensive statistical reference list of current U.S. citizens" — an option that Ross requested after reviewing the earlier memo by the Census Bureau's chief scientist.

March 16, 2018: The Census Bureau starts collecting responses in Rhode Island's Providence County for the only full test run of the 2020 census. The questionnaires do not include a citizenship question.

March 19, 2018: President Trump's campaign and the Republican National Committee send an email telling supporters, "The President wants the 2020 United States Census to ask people whether or not they are citizens."

March 20, 2018: "We are responding solely to the Department of Justice's request," Ross testifies in Congress after Rep. José Serrano, D-N.Y., asks if President Trump or anyone else at the White House directed him to add a citizenship question to the 2020 census. At the same hearing before the House Appropriations Commerce, Justice, Science, and Related Agencies Subcommittee, Rep. Grace Meng, D-N.Y., asks, "Has the president or anyone in the White House discussed with you or anyone on your team about adding the citizenship question?" Ross replies, "I am not aware of any such." Months later, Meng calls for a Justice Department investigation into whether Ross provided false statements to members of Congress after the Trump administration's attorneys backtrack Ross' testimony and reveal that Ross discussed the issue with Bannon in the spring of 2017.

March 22, 2018: During a House Ways and Means Committee hearing, Ross testifies to Rep. Judy Chu, D-Calif., that the Justice Department "initiated the request" for a citizenship question.

March 26, 2018: Ross announces his decision to add a new question to the 2020 census that asks, "Is this person a citizen of the United States?" He also directs the Census Bureau to match responses to the question with existing government records on citizenship. Hours later, California Attorney General Xavier Becerra files the first lawsuit against the Trump administration to get the question removed.

March 28, 2018: In another email about a citizenship question, the Trump campaign tells its supporters, "President Trump has officially mandated that the 2020 United States Census ask people living in America whether or not they are citizens."

March 29, 2018: The Census Bureau sends a report of the questions it plans to ask for the 2020 census to Congress, including the new citizenship question approved by Ross.

April 3, 2018: New York state leads more than two dozen states and cities in filing a lawsuit in New York over the citizenship question.

April 11, 2018: A group of Maryland and Arizona residents file a lawsuit in Maryland. A group affiliated with former Attorney General Eric Holder's redistricting organization, the National Redistricting Foundation, is coordinating the lawsuit.

April 17, 2018: The city of San Jose, Calif., and Black Alliance for Just Immigration — an immigrant rights group led by Black Lives Matter co-founder Opal Tometi — file a lawsuit in California.

April 25, 2018: "It shouldn't scare people. They don't have to answer it, really," Sessions says during a hearing before the Senate Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies. That was in response to a question from Sen. Brian Schatz, D-Hawaii, about worries among communities of color that the citizenship question will scare people from responding to the census. Sessions calls those concerns "overblown," noting the question is placed as the last one to be asked about each household member. According to federal law, refusing to answer a census question can result in a fine. Returning an incomplete form may lead to a phone call or an in-person visit from a census worker.

May 10, 2018: Asked by Sen. Patrick Leahy, D-Vt., why there's a "sudden interest" in a citizenship question, Ross testifies at a hearing of the Senate Appropriations Commerce, Justice, Science, and Related Agencies Subcommittee: "Well, the Justice Department is the one who made the request of us."

May 18, 2018: Gore dodges questions from lawmakers during a House Oversight and Government Reform Committee hearing about why the Justice Department requested a citizenship question. "You can't answer a question as to whether you talked to your boss, who we pay?" Rep. Elijah Cummings, D-Md., asks after Gore avoids directly answering if he discussed the request with Sessions. Gore says he can't comment because the Justice Department is representing the Trump administration in the lawsuits over the question. He was a no-show at an earlier hearing he was expected to attend.

May 23, 2018: The state of Alabama sues the Trump administration to challenge the Census Bureau's longstanding policy of including unauthorized immigrants in census numbers used to distribute congressional seats and Electoral College votes among the states.

May 31, 2018: La Unión del Pueblo Entero, a Texas-based community group founded by labor activists César Chávez and Dolores Huerta, leads another lawsuit filed in Maryland over the citizenship question.

June 6, 2018: The New York Immigration Coalition leads another lawsuit filed in New York over the citizenship question.

June 21, 2018: In a memo filed as part of the lawsuits, Ross discloses that he and his staff seeded the Justice Department's request for a citizenship question. Ross reveals publicly that "soon" after he was appointed as commerce secretary, he thought adding a citizenship question to the 2020 census "could be warranted." The issue was raised by other "senior" Trump administration officials, he adds.

July 26, 2018: U.S. District Judge Jesse Furman rejects the Trump administration's request to dismiss the two New York-based lawsuits over the citizenship question. Furman allows the plaintiffs to argue that Ross misused his authority over the census and discriminated against immigrant communities of color by adding the citizenship question.

Aug. 17, 2018: The two California-based lawsuits can continue, U.S. District Judge Richard Seeborg rules, on the plaintiffs' claims that Ross' decision to add the citizenship question was unconstitutional and a misuse of his authority. In New York, Furman orders the Trump administration to make Gore available for questioning under oath in part because he appears to have had a role in drafting the Justice Department's request for a citizenship question.

Aug. 22, 2018: U.S. District Judge George Hazel allows the lawsuit filed by Maryland and Arizona residents to move forward, delivering the Trump administration's fifth setback in its attempts to get the citizenship question lawsuits tossed out of courts.

Sept. 21, 2018: Ross is ordered to sit for questioning under oath for the citizenship question lawsuits by Furman, who writes in his opinion that Ross' "intent and credibility are directly at issue in these cases."

Oct. 9, 2018: Cummings and Rep. Gerald Connolly, D-Va., ask the Commerce Department's inspector general to investigate how Ross worked with his staff to add a citizenship question to the 2020 census and if they "meaningfully considered concerns expressed by experts at the Census Bureau."

Oct. 11, 2018: A court filing reveals that Ross discussed adding a citizenship question to the 2020 census with Bannon in the spring of 2017, when he also spoke with Sessions about the topic. The disclosure about Bannon — made "for the sake of completeness," according to the Trump administration's attorneys — contradicts Ross' testimony in Congress back in March, when he said he was not aware of any discussion about the issue between him or his staff and the White House.

Oct. 15, 2018: Sessions criticizes Furman's order allowing the plaintiffs' attorneys to question Ross under oath about why he decided to add the citizenship question. "The words on the page don't have motive. They are either permitted or they are not," Sessions says at an event organized by The Heritage Foundation in Washington, D.C.

Oct. 22, 2018: The Supreme Court temporarily blocks the lawsuit plaintiffs' attorneys from questioning Ross under oath. The justices allow them to depose Gore, as Furman ordered. The ruling comes after multiple attempts by the Trump administration to stop both depositions.

Nov. 1, 2018: Researchers behind a nationwide study commissioned by the Census Bureau report that the citizenship question may be a "major barrier" to the country's full participation in the 2020 census.

Nov. 2, 2018: The Supreme Court rejects the Trump administration's request to delay the trial for the New York lawsuits scheduled to start on Nov. 5.



A trial begins today that may determine whether a controversial new question will stay on the 2020 census. The question is as follows. Quote, "is this person a citizen of the United States?" Six lawsuits have been filed in an effort to get the question removed, and the first trial starts today in New York City. No matter which side wins, the issue will likely reach the U.S. Supreme Court. NPR national correspondent Hansi Lo Wang has been covering these lawsuits, and I spoke with him earlier.

HANSI LO WANG, BYLINE: Good morning, Rachel.

MARTIN: All right, first off, there will be people out there who say, wait; isn't the entire point of the U.S. census to count the number of U.S. citizens? So can you explain that and why this particular question is such a big deal?

WANG: The census is a head count of both U.S. citizens and non-citizens. You know, who is counted is not based on citizenship status. It's based on who is living in the country.

MARTIN: Just people, anyone.

WANG: Exactly, anyone who is considered to be living in the country. And so asking about citizenship status - that is a sensitive question for a lot of people. And the concern here is that it will lead to a bad count, inaccurate information being collected. And that's backed up by research from the Census Bureau that shows that a lot of people are scared of this question, that some people think that this question - the real purpose of it they think is for the government to locate undocumented immigrants. And that's going to make the Census Bureau's job very, very hard. They need to count everyone once and where they live. And, you know, it's not just their job. It's a constitutional requirement.

MARTIN: And so the concern - just to draw that out - is that people wouldn't report. They would be afraid that they would be deported as a result, and so the census would be off.

WANG: That's the concern, that sending out census workers to follow up with those households will not be enough to make sure that we have an accurate count and accurate information in 2020.

MARTIN: So what do we know about the reasons that this question was added? Was it about trying to figure out who is in this country illegally?

WANG: That's one of the main questions in this lawsuit. In March, when they announced this question, they said it was for the Voting Rights Act - better enforcement of the Voting Rights Act. The Justice Department, they said, needs more detailed citizenship data to better enforce protections against racial discrimination.

But just last night, I saw a court filing of testimony from the head of the Civil Rights Division, John Gore. He's testified that this question is not necessary. We also know that there was an alternative to adding a question that the Census Bureau said would provide more accurate data, would cost less money. But the Trump administration wanted to avoid that alternative, and they ultimately decided to push this question onto the census.

MARTIN: So this has triggered all kinds of lawsuits, the first starting today. What is the argument against this? I mean, what are groups really concerned about here?

WANG: They're really concerned that if you have a inaccurate count, you have inaccurate information, that's going to have profound implications across the country over the next decade. The census is only taken once every 10 years, and these numbers directly impact how many congressional seats, electoral college votes each state gets. An estimated $800 billion a year in federal tax dollars is also on the line. And that money goes directly to fund local schools, relief for hurricanes and wildfires and fixing your local roads.

MARTIN: And I imagine there's some urgency here because it takes a lot of money and time to put together a census.

WANG: Exactly. This trial is only expected to last 10 days. But we're not sure exactly when the judge will issue his ruling in this case in New York. There are two other cases in California, two other cases in Maryland. Ultimately, all these rulings are going to be appealed to the Supreme Court, and it's unclear exactly when the Supreme Court will rule. They have until June, but forms for the census are scheduled to be printed starting in May.

MARTIN: All right, NPR's Hansi Lo Wang, thanks so much. We appreciate it.

WANG: You're welcome. Transcript provided by NPR, Copyright NPR.