Originally published by The Washington Post
The Trump administration’s move to add a citizenship question to the 2020 Census is coming up for oral argument at the Supreme Court on Tuesday. That means the justices could be weighing a Four-Pinocchio claim by Commerce Secretary Wilbur Ross.
Ross, who oversees the Census Bureau and approved the question last year, claimed in congressional testimony that the Justice Department “initiated the request for inclusion of the citizenship question.”
But, as part of this court case, emails were released showing that Ross was talking to top advisers to President Trump and maneuvering to add the citizenship question months before the Justice Department sent a letter in December 2017 with a formal request.
The emails show that Ross pressed Justice Department officials behind the scenes to send him the question and then, in public, claimed it was their idea, not his.
Three federal judges, in California, Maryland and New York, have called Ross’s stated reason for adding the question a “pretext” and concluded that he violated federal law by concealing the question’s origins. (They also ruled against Ross on various other grounds.)
We’re going to lay out what the lower-court judges said about Ross’s Four-Pinocchio claim and recap some of our previous fact checking on the citizenship question.
On Jan. 15, U.S. District Judge Jesse M. Furman ruled that Ross violated the Administrative Procedure Act in multiple ways (“a veritable smorgasbord of classic, clear-cut APA violations”) when he added the citizenship question.
One of those violations was Ross’s claim that he got the initial request for the citizenship question from the Justice Department. The law requires agency heads to give the real reasons for their decisions, but Ross did not, Furman found.
“In sum, the evidence in the Administrative Record and the trial record, considered separately or together, establishes that the sole rationale Secretary Ross articulated for his decision — that a citizenship question is needed to enhance DOJ’s VRA enforcement efforts — was pretextual,” Furman wrote. “Because Secretary Ross’s stated rationale was not his actual rationale, he did not comply with the APA’s requirement that he ‘disclose the basis of [his]’ decision.”
Let’s back up for a second. Administration officials say the citizenship question would improve the quality of the data the Justice Department uses to enforce Section 2 of the Voting Rights Act. This section “prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups” recognized by law.
The key to proving discrimination under Section 2 often lies in measuring the total number of citizens on one hand and the share that came from a minority voting bloc on the other. That’s where census data comes into the picture. Only citizens have the right to vote, so adding up all the voting-age citizens gives you the total population of eligible voters.
The census itself has not included a citizenship question since 1950, so the Justice Department for years has taken data from the American Community Survey. That’s a long-form questionnaire, sent out as a census supplement, and it includes a citizenship question. The Census Bureau sends it to 3.5 million households a year, or one out of every 38.
Experts say the ACS data is reliable for voting rights cases and updated once a year. The census is carried out once a decade. Joseph R. Fishkin, a law professor at the University of Texas, previously told The Fact Checker that the “ACS data has not interfered at all with the DOJ’s ability to enforce Section 2 of the VRA.”
Adding the citizenship question could lead to less reliable data on the total voting population and on Hispanic voters, experts add.
More than a dozen states and cities and a range of groups sued to block Ross’s move, calling the citizenship question a ruse by the Trump administration to weaken the political power of heavily Democratic states with large immigrant populations. Census data is used to allocate federal funds, draw legislative districts and reapportion congressional seats.
The three federal judges who have ruled on these claims all found that adding the citizenship question would probably produce an undercount. Census responses can’t be shared with law enforcement agencies conducting immigration sweeps or deportations. But undocumented immigrants or their relatives may assume otherwise and take a pass on filling out the census, experts told the courts.
In an amicus brief to the Supreme Court, five former Census Bureau directors who served in Democratic and Republican administrations said that “the citizenship question should not be included in the 2020 Census.” (Ross overruled career Census Bureau officials in deciding to add the question.)
“The Census Bureau’s own 2018 analyses of the effects of adding a citizenship . . . demonstrate that the decline in self-response will not be uniform across all households, but instead will have a disparately high effect on noncitizen households and on Hispanic citizen households, which will have an adverse effect on the accuracy of the census,” they said. “That disparate effect could well skew the allocation among the States of seats in the House of Representatives.”
The three judges separately concluded that Ross violated the Administrative Procedure Act in multiple ways. One of the APA violations was what the judges each described as Ross’s scientifically dubious and “pretextual” claim that the Justice Department requested the citizenship question to get better data for voting rights cases.
U.S. District Judge George J. Hazel ruled April 5 that “the Administrative Record establishes that the Secretary’s articulated reason for adding a citizenship question to the 2020 Census — responding to DOJ’s request — was not his real reason” and that “because the VRA enforcement rationale did not actually motivate the Secretary’s decision, the Secretary has failed to ‘disclose the basis of’ his decision in violation of the APA.”
U.S. District Judge Richard G. Seeborg ruled March 6: “Secretary Ross violated the APA by failing to disclose the basis for his decision to add a citizenship question to the 2020 Census. As explained in the Findings of Fact Based Exclusively on the Administrative Record, the evidence overwhelmingly shows that Secretary Ross decided to add the citizenship question well before DOJ made the request in December of 2017 and that his reason for doing so was not to improve enforcement of Section 2 of the VRA. This purported purpose was a mere pretext.”
Seeborg also said: “While it is of course appropriate for an incoming cabinet member to advocate for different policy directions, to solicit support for such views from other agencies, and to disagree with his or her professional staff, this record reflects a profoundly different scenario: an effort to concoct a rationale bearing no plausible relation to the real reason, whatever that may be, underlying the decision.”
Hazel, who sits in Maryland, and Seeborg, in California, both found that adding the citizenship question would violate the Constitution’s enumeration clause (the section that mandates a population count). Furman, who sits in New York, based his ruling on APA violations. But he was unsparing:
“Most blatantly, Secretary Ross ignored, and violated, a statute that requires him, in circumstances like those here, to collect data through the acquisition and use of ‘administrative records’ instead of through ‘direct inquiries’ on a survey such as the census. Additionally, Secretary Ross’s decision to add a citizenship question was ‘arbitrary and capricious’ on its own terms: He failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices — a veritable smorgasbord of classic, clear-cut APA violations. On top of that, Secretary Ross acted without observing procedures required by law, including a statute requiring that he notify Congress of the subjects planned for any census at least three years in advance. And finally, the evidence establishes that Secretary Ross’s stated rationale, to promote VRA enforcement, was pretextual — in other words, that he announced his decision in a manner that concealed its true basis rather than explaining it, as the APA required him to do.”
The Supreme Court decided to review Furman’s ruling on an expedited basis and then expanded the case after Seeborg’s ruling in March to weigh the arguments under the Constitution’s enumeration clause. Usually, the lower-court judges’ rulings would first be reviewed by the appellate courts. But the census questionnaire has to be at the printer this summer, and the Supreme Court decided to hear the case directly.
On behalf of Ross, the Justice Department argues that “it simply cannot be arbitrary and capricious—or ‘irrational,’ as the district court put it—to reinstate to the decennial census a question whose pedigree dates back nearly 200 years.”
As for the Four Pinocchio claim? Whether or not Ross was giving the real reason in his 2018 memo announcing the addition of the citizenship question, the voting rights enforcement rationale should not be dismissed by the courts, the Justice Department argues.
“Agency action does not fail APA review merely because, as is often the case, the agency decisionmaker had unstated reasons for supporting a policy decision in addition to a stated reason that is both rational and supported by the record,” the DOJ brief says.
It might be a stretch to say this all comes down to whether Ross was telling the truth, but because it’s one of the APA violations that Furman found, it’s a key part of the case before the Supreme Court.