A top official in the administration of former President Donald Trump was untruthful while testifying on adding a citizenship question to the Census, according to documents released July 20 by a top Democrat.
Wilbur Ross, the secretary of Commerce during the Trump administration, told a congressional panel in 2018 that the move to place the question back on the Census was “solely” in response to a request from the Department of Justice, and that the department initiated the move.
Ross also said that his interest in the matter had nothing to do with counting the number of illegal immigrants for apportionment purposes.
But documents obtained and released (pdf) by the House Oversight Committee show that Ross and Department of Commerce workers spent months exploring the legality of returning the question to the Census, that Ross repeatedly asked the department to provide the request, and that there were discussions about how the move would affect apportionment, or the way U.S. House of Representatives seats are allocated by state based on population.
They also appeared to show that the stated rationale for the move—to improve enforcement of the Voting Rights Act—originated with Ross’s agency.
The document release “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,” Rep. Carolyn Maloney (D-N.Y.), chairwoman of the oversight panel, said in a statement.
The Department of Commerce Inspectors General previously found (pdf) that Ross “mispresented the full rationale” for reinstating the citizenship question while speaking before Congress, but prosecutors declined to prosecute him.
Ross could not be reached for comment.
The question of one’s citizenship was included in every Census from 1790 to 1950.
The Department of Justice in a letter to the Census Bureau in December 2017 asked the bureau to reinstate the question. Arthur Gary, a department official, said that data from the question “is critical to the Department’s enforcement of Section 2 of the Voting Rights Act (VRA) and its important protections against racial discrimination in voting.”
John Gore, a different department official, later told the House committee that he drafted the letter.
Months earlier, a lawyer in the Department of Commerce, James Uthmeier, and Ross, among others, started examining whether returning the question to the Census was legal, and whether the answers could be used for apportionment purposes, according to the documents released on Wednesday.
The first draft of a memorandum from the agency, which was unsigned, said that the question could only legally be placed on the Census if the collected information “is not used for apportionment.” The second draft, written by Uthmeier, altered that language.
“No federal court has held that the census population count used for apportionment should not include citizens. However, there are bases for legal arguments that the Founding Fathers intended for the apportionment count to be based on legal inhabitants,” Uthmeier wrote, adding the second sentence.
Earl Comstock, another lawyer, softened the point even more by removing “for apportionment.”
Uthmeier, now the chief of staff for Florida Gov. Ron DeSantis, and Comstock, a lawyer, did not respond to requests for comment.
Also prior to the Department of Justice (DOJ) letter, a handwritten note from Uthmeier told Gore that Ross “thinks DOJ would have legitimate use of data for VRA purposes.”
“Ultimately, we do not make decisions on how the data should be used for apportionment, that is for Congress (or possibly the President) to decide,” Uthmeier wrote to Comstock.
“The Committee’s investigation has exposed how a group of political appointees sought to use the census to advance an ideological agenda and potentially exclude non-citizens from the apportionment count,” the panel said in a statement.
After Ross announced in March 2018 that the citizenship question would be part of the 2020 Census, a bevy of lawsuits sought to block the administration from adding it.
U.S. District Judge Jesse Furman, an Obama appointee, entered a preliminary injunction, ruling that Ross’s decision was not legal because the secretary “failed to consider several important aspects of the problem,” falsely claimed that the question was needed to help enforce the VRA< and did not comply with a law that requires notifying Congress of his plans. [
The case was appealed to the Supreme Court, which quickly heard the case in order to hand down a decision ahead of the printing of the Census documents.
The nation’s top court in a 5–4 decision ruled that the question was not necessary to help enforce the VRA.
Chief Justice John Roberts, a George W. Bush appointee, said in the majority opinion that the rationale “seems to have been contrived.”
In a dissent, Justice Clarence Thomas, a George H. W. Bush appointee, said that Ross “complied with the law and gave a reasoned explanation for his decision.”
Trump later issued an executive order requiring federal agencies to hand over information about noncitizens to the Department of Commerce.
Then-Attorney General Willam Barr and Ross, meanwhile, were held in contempt of Congress for not cooperating with requests for materials concerning the citizenship question.
The House committee agreed to drop a lawsuit against the government earlier this year after the government provided previously withheld or redacted documents, including drafts of the Uthmeier memo.
J.D. Grom, a government advisor, told Maloney that the production of the documents was informed by the Supreme Court’s finding that Ross included the citizenship question on the Census based upon a “contrived” rationale.
Matthew Vadum contributed to this report.