SAN FRANCISCO (CN) – On the heels of the U.S. Supreme Court’s Friday announcement that it will decide whether the 2020 census can ask a citizenship question, a federal judge in San Francisco blasted what he called Commerce Secretary Wilbur Ross’ disingenuous reasoning for including it.
U.S. District Judge Richard Seeborg called Ross’ decision, outlined in a March 2018 memo that said the census must include citizenship data to help the Justice Department enforce the Voting Rights Act “more than not reasonable,” and said that it could be inferred that the memo was nothing more than a “Potemkin Village” designed to mask some ulterior motive.
In closing arguments Friday in the federal bench trial over the citizenship question, attorneys for the State of California and six California cities said adding the question would jeopardize the census’ accuracy, as both legal and undocumented immigrants would be less likely to participate.
The State of California further contends that Ross’ decision was an arbitrary and capricious violation of the federal Administrative Procedure Act and the Constitution’s enumeration clause, which requires that the population be counted in order to apportion congressional seats.
“The citizenship question will provide a differential undercount of Latinos and non-citizens, and by extension, Californians,” said Deputy Attorney General Matthew Wise. “California’s budget line item for census outreach swelled from a pre-citizenship question allocation of $43.3 million to a final allocation of $90.3 million.”
He said undercounting California’s large Latino population would ultimately lead California to lose both federal funding and a seat in Congress.
Accusing Ross of “modifying the census on a whim,” Wise spoke for nearly two hours Friday, constructing a timeline illustrating Ross’ insistence that the question be added and showing how he pressured the Justice Department to write a letter supporting the need for citizenship data.
“The irony of all of this is that adding a citizenship question actually undermines the Voting Rights Act by undermining the very groups the VRA is designed to protect,” Wise added.
According to Wise, the Justice Department complied with Ross’ request to write a letter in support of the question on December 12, 2017.
On May 2, 2017, Ross wrote to Earl Comstock, Director of Policy and Strategic Planning for the Department of Commerce, saying he was “mystified why nothing has been done in response to my months[’] old request that we include the citizenship question.”
Ross’ anxiousness increased by November. “Census is about to begin translating the questions into multiple languages and has let the printing contract. 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,” he wrote to Peter Davidson, General Counsel for Commerce.
Seeborg said these emails clearly show that Ross was grasping at straws and that the DOJ’s request was an “utter and complete pretext.”
Turning to Justice Department attorney Brett Shumate, he said, “Let me make this easier for you by telling you what I think. Assume it’s my conclusion that the reason that is articulated in the memo is not his reason. He gloms onto that reason to justify his preconceived view that he wants that question on there. So that’s my definition for the present purpose of pretext. That being the case, is it still your position it’s not an APA violation?”
Shumate said yes, unless the judge “were to find [Ross] had irreversibly prejudiced the issue.”
“Assume I find that,” Seeborg said.
Shumate said Seeborg would need to find that Ross had an “unalterably closed mind,” which cannot be determined by the evidence in the record.
Laughing, Seeborg pointed to the May 2, 2017 email to Comstock.
“It says ‘my months old request, why has nothing been done?’ It cannot be clearer than that. I don’t see how anyone can argue with a straight face that it cannot be anything other than an expression by the decision maker that ‘I have decided to do it.’ It cannot be argued any other way,” Seeborg said.
He added that Ross appeared to be agency shopping so that the request would ultimately come from the Justice Department.
“Not to be glib about it, but they would have searched for other agencies. They went to Homeland Security and they said no, so they went to DOJ. If they had said no maybe they would have gone to the Department of State,” Seeborg said, his voice rising. “There was a mission as reflected in the comments to get this question on there, come hell or high water. It’s an extraordinary record.”
Shumate said it’s not unusual for a new cabinet secretary to have a different policy perspective and to look for justification for that view.
“It’s a stunning statement to acknowledge he needed a justification,” Seeborg said. “That right there indicates to me that it’s not a genuine request, it’s ‘I need a justification and I’ll take anyone they can come up with.’”
But Shumate argued the federal government has an undisputed interest in obtaining citizenship data, and that the question has a “long historical pedigree” – census surveys included it up until 1950, and the long-form census added it back in 2000.
Seeborg countered, “It can be critical information for the government to obtain, but it’s not automatic that this is the way to obtain it. Just because the DOJ needs the information doesn’t mean it needs to be asked in the decennial census.”
Friday’s hearing follows a ruling in a similar challenge out of New York, where U.S. District Judge Jesse Furman in January found Ross had violated the Administrative Procedure Act. In an excoriating 277-page opinion, Furman said Ross had “violated the public trust.”
The case must be decided before the decennial survey goes to print in June, which could be why the Supreme Court granted review of Furman’s decision and set a hearing date for April.
Attorneys for both sides urged Seeborg for an expeditious ruling.