The nearly 500 documents include several drafts of an August 2017 memorandum prepared by a Commerce Department lawyer and political appointee, James Uthmeier, in which he initially warned that using a citizenship question for apportionment would probably be illegal and violate the constitution, the report said.
In later drafts, Uthmeier and another political appointee, Earl Comstock, revised the draft to say there was “nothing illegal or unconstitutional about adding a citizenship question” and claiming the Founding Fathers “intended the apportionment count to be based on legal inhabitants,” the report said. In December 2017, the Justice Department sent a formal request to the Commerce Department, which oversees the Census Bureau, asking it to add the question; in March 2018, Ross announced it would be added to the 2020 Census.
“Today’s Committee memo pulls back the curtain on this shameful conduct and shows clearly how the Trump Administration secretly tried to manipulate the census for political gain while lying to the public and Congress about their goals,” Oversight Committee Chairwoman Carolyn B. Maloney (D-N.Y.) said in a statement.
The administration’s effort to add the question lasted two years. It was challenged by civil rights groups who blasted it as an effort to undercount Latinos and scare immigrant communities from participating in a survey that determines congressional apportionment and redistricting, as well as the disbursement of $1.5 trillion in federal funds annually.
The new evidence echoes documents that surfaced during litigation over the question, including a study by a Republican operative that found adding a citizenship question would benefit Republicans in redistricting.
“It was obvious it was just a farce,” said former Census Bureau director John Thompson, who testified at the time, saying the bureau under Ross had not done proper testing of the citizenship question before adding it. “I’m glad the committee got the materials to reinforce that, but it was not surprising.”
Thomas Wolf, deputy director of the Democracy Program at NYU’s Brennan Center for Justice, said, “Lest anyone doubted that what the Trump administration was up to was wrong, these documents show that even the Trump administration itself knew that what it was doing was illegal.”
The Supreme Court ruled in 2019 that the administration’s stated rationale for adding the question was “contrived,” and the administration dropped the effort. It then said it would instead block undocumented immigrants from being counted for apportionment, setting off another volley of court battles that lasted until the waning days of Donald Trump’s presidency.
That attempt ultimately failed when, because of pandemic-related delays, the Census Bureau was unable to deliver state population totals to the president before he left office. The administration was also unable to explain how it planned to identify and count undocumented immigrants, for whom there is no official tally.
The documents obtained by the committee had been withheld by the Trump administration despite subpoenas, the report said, adding that the committee had faced “unprecedented obstruction” from administration officials. Ross and then-Attorney General William P. Barr were held in contempt of Congress after refusing to produce them, the report noted, adding that the previously withheld or redacted documents were finally released “after more than two years of litigation, and the arrival of a new administration.”
Maloney introduced a bill last week that she said is designed to protect the Census Bureau against future attempts to politicize it. H.R. 8326, the Ensuring a Fair and Accurate Census Act, would prevent the removal of a Census Bureau director without just cause, limit the number of political appointees at the bureau and prohibit the secretary of commerce from adding topics or questions to the survey “unless he or she followed the existing statutory requirements to notify Congress in advance.” It would also bar new questions from appearing on the decennial census form unless they have been “researched, tested, certified by the Secretary, and evaluated by the Government Accountability Office.”
Thompson praised the bill. “I think it would protect the independence of the Census Bureau,” he said. “I’m very enthusiastic about the bill. … I hope it gets enacted.”
But even if it is, it might not fully insulate the bureau from partisan interference, he said. Under a Republican House and Senate, “the Congress could direct the Census Bureau to collect citizenship [information] on the census, and then there could be a fight to get the citizenship question on the 2030 Census,” he said, adding, “Congress could try to pass a law saying you need to do apportionment by citizenship.”
The bar for passing a constitutional amendment would be high, Wolf said. However, the Trump administration’s effort to add the citizenship question and exclude undocumented people from apportionment “indicates that the 2020 Census was in grave peril and we escaped only through a combination of significant legal victories and a certain amount of luck,” he said. “The census is clearly too fragile to continue in its imperiled state.”
Along with limiting political appointees and giving additional powers to the Census Bureau director, as Maloney’s bill proposes, Wolf suggested curtailing the president’s ability to influence apportionment, as Trump proposed to do. By law, reapportionment of the 435 House seats is supposed to happen automatically based on state population totals.
“The president’s role in the apportionment process was supposed to be administerial,” Wolf said. “That’s why it’s called automatic apportionment.”