On The Case

DOJ helped cover up “improper” motive for census citizenship question: new ACLU filing

(Reuters) - The ACLU and several immigration advocacy groups filed a motion Wednesday in federal court in Manhattan, asking U.S. District Judge Jesse Furman for permission to amend their complaint against the U.S. Commerce Department and Commerce Secretary Wilbur Ross to add allegations against U.S. Attorney General Jeff Sessions and Acting Assistant AG John Gore of the Civil Rights Division. The groups’ brief accuses these high-ranking Justice Department officials of helping Ross and his Commerce aides cover up their true “improper and discriminatory” motive for adding a question about residents’ citizenship to the 2020 census form.

Ross has stated publicly and in Congressional testimony that Commerce added the citizenship question to the proposed 2020 census form in response to a December 2017 request from the Justice Department, which said in a letter to Commerce that it needed citizenship data to enforce the Voting Rights Act.

Judge Furman called Secretary Ross’s justification a “pretext” and said the Commerce Department’s actions “sparked suspicion” about its motives in a July 26 decision denying the government’s motion to dismiss two cases challenging the addition of the citizenship question.

The new brief by the ACLU and Arnold & Porter Kaye Scholer – and their proposed 105-page amended complaint – adds details to the account in Judge Furman's opinion last month. “Senior officials at DOJ helped Secretary Ross concoct a purportedly legally defensible rationale for adding this question while hiding that the request originated with Secretary Ross and not from DOJ’s Civil Rights Division,” their brief said.

The Justice Department declined to comment in response to an email asking about the new allegations. A Commerce Department spokesman said in an email statement, “Secretary Ross was truthful to Congress. Executive branch officials discussing important issues prior to formulating policy is evidence of good government, and the Secretary’s previous testimony before Congress is consistent with that fact....Recent document productions further demonstrate the Secretary’s commitment to taking a hard look at the alternatives presented to him by the Census Bureau. It shows an open, frank, and interactive dialogue between the Secretary and his staff.”

As Judge Furman laid out in his opinion last month, Commerce Secretary Ross began mulling the addition of a citizenship question on the census soon after his appointment in February 2017. The Commerce Department, according to Judge Furman, came up with the idea of asking the Justice Department to justify the addition by requesting citizenship data in connection with the Voting Rights Act. After Commerce officials floated that idea at DOJ, Justice formally asked Commerce to add the citizenship question in December 2017.

The ACLU’s proposed new complaint adds allegations about the Justice Department’s role in the Commerce “pretext.” It claims, for instance, that AG Sessions pledged to help Commerce Secretary Ross three months before the DOJ letter that allegedly prompted the Commerce Department to consider adding the citizenship question. The complaint contends that Ross and Sessions conferred by phone on September 18. Ross and his aides allegedly pressed for the DOJ to follow through and supply the formal request, including an urgent email from Ross to a top Commerce staffer after he spent Thanksgiving at President Trump’s Mar-a-Lago resort.

The proposed amended complaint alleges that Acting Assistant AG Gore, a political appointee, ghostwrote the DOJ letter to Commerce that requested the addition of the citizenship question even though political appointees are not supposed to be involved in data and statistics matters at the Census Bureau. The new complaint also claims that Commerce and DOJ officials conferred on Commerce Secretary Ross’s memo announcing the change in the census form.

“DOJ officials played a direct and significant role in conspiring with Secretary Ross to develop a pretext in an attempt to insulate the citizenship question from legal scrutiny,” the ACLU and other groups said.

In his own recent Congressional testimony, the groups alleged, DOJ official Gore “declined to answer questions about who initiated the DOJ request and whether he consulted with career Civil Rights Division employees before making it.”

Judge Furman earlier this month ruled that plaintiffs in the case can depose Gore.

The New York census litigation is one of many challenges to the addition of the citizenship question in courts around the country. NPR reported Wednesday that judges in five of the cases, including the two before Judge Furman, have ruled the suits can move forward.

(This post has been updated to include comment from a Commerce Department spokesman.)