New Concerns About Accuracy of the Census

will produce an undercount. Inaccurate data will have lasting effects throughout the next decade. Joining me is Leon Fresco, a partner at Holland and Knight. I got a Census questionnaire in the mail, I filled it in, sent it in. What else does the Census have to do besides send out those questionnaires? We the censors have to do two

key things. They have one, like you said, a mail out of the questionnaire, but also under federal statute, there's also a second period that's called the in person verification, which is then where they have to canvas the addresses that they don't have answered for and try to get answers that are accountable for those addresses. As of Monday, of US households had not responded to the Census questionnaire. Yet the U S Census Bureau says it's cutting its

schedule for data collection. Do we know why? Well, the reason that was given is that they don't think they'd be able to finish the calculations that are required by the satuatory deadline of December thirty one, which is when they're supposed to have the full count by. But that seems a bit strange given that they knew that that satuatory deadline existed when they first made this announcement about moving it to October one. And the other odd point is that it's not as if COVID has gotten better.

COVID has gotten worse, and so whatever justification that was COVID related to get to October thirty one seems odd to now with raw back to September. Some people are saying, well, this means that there will be an under count of

minorities as well as rural populations. That's a huge danger that now, especially because of COVID and limitations and getting access to people, and people who don't want to necessarily talk to anyone at the moment because they're being very very careful that all of the time that was now needed that extra month, you certainly would have yielded a much larger response rate over the course of an additional

month that you won't have now. Now it will be rush, and the strategy of rushing it is almost certainly to lead to hum their count. Many people are saying that this move to speed up the deadlines is another attempt

by the Trump administration to politicize the census. Yeah, there is a belief that, whether it's true or not, that time frames work out, which is that if potentially you had delayed the census, it would have gone in to the presidency of a subsequent president, maybe Joe Biden if he wins, And so by feeding it up a month, the idea is that somehow the president can prevail in his other litigation about not counting people without status here that then he can make the final count and the

final abortion meant before the end of the first term of the presidency. And analysis shows that ten states are trailing their response rates. Most of those are red states. Also, it's the poorest states that depend most on federal funding and have lower census response rates. So won't the administration

be losing in that respect. I mean, that is certainly the practical implications of the policy, but the policies are almost always driven by the fact that the people who are most pushing the pious accurate number counts is always

the blue state, the blue state New York, California. They're always the one pushing the necessity and the urgency of getting an account accurately because they're the states who are always not getting their share of the pie, and so from their perspective, they feel like they have to do more than usual, always in every sense of theories, to

get counted. And so that perception seems to have lingered, even though the reality on the ground is what you report, which is that the red states are actually the one trailing in the undercount. At the moment, New York is one of those states that is trailing in the response rate.

You know, we concentrate on the federal funding that comes to states based on the census count, and also of course the congressional seats that are allocated, but there are lots of other reasons to get to really representative count, and that shows in that COVID databases are also using

population data from the census, so there are other reasons. Oh, it's absolutely critical for all kinds of economic and demographic reasons, and to be able to assess the policy implications of many different formulaic grant programs and to determine, like you said, whether certain counties are handling pandemics better than other counties. All of that required usage of the census data. And if you don't have that census data, you can't make

proper assessments. There's even immigration issues, which is the area I work on in the in the context of what's known as the e v BY program, which talks about investing money in order to get a green card. That is a hundred percent dependent on the census track and what that census track is saying about. Who is unemployed in that census track, and who is the what is

the average rate of income in that census track. And so from that perspective, it is if we sat here and did a two hour interview, I would not be able to cover all of the things that the senses data is used for. I won't subject you to a two hour interview. So now there was a request to Congress to extend the deadline, which passed the House and is going nowhere in the Senate, is there anything else that can be done to extend the deadline? So I am hearing about lawsuits that people want to file to

try to get that deadline extended back to October. Those of lawsuit has been filed, but they are imminent, and so those lawsuits will try to get the deadline extended under the theory that they violate the Administrative Procedure Act. And in addition to those lawsuits, you have the idea that maybe even if you don't put it in as a sandalue bill, it's something that is not so outrageous that it can be put into a COVID relief packet. And that's the other options that's out there out of

the table. Last week, President Trump issued an executive memorandum to exclude people in the country illegally. And they are multiple lawsuits. Where does that stand? So the furthest lawsuit along is the one that was filed in New York, that was filed by the New York Attorney General. There was two others, one filed by Tomas Cause and one file in the Northern Districts of California by the State

of California. But the one in New York. They had a hearing Tuesday, and as that hearing the judge, judge ferments that he wanted to have briefing resolved by the ends of August because of the fact that the census have been moved up to the ends of September. And the biggest question that he has to decide right now is because the census statutes say that anything related to apportion men, any challenge related to abortionment has a three

judge panel as opposed to a one judge panel. Is this a challenge related to apportionment, which is not exactly because we're not saying New York should have had two million versus California should have had three million. We're not saying that, But is it close enough to apportion then that that should require a three judge panel, And he says it does that its Department of Justice agrees, so

that they don't appeal that. Then what that would mean is that that three judge panel in New York would decide the merits of the case and then it could go directly to the Supreme Court for an appeal. In testimony before Congress, the director of the Census said that the Census Bureau is trying to come up with methodologies to implement President Trump's executive memo. What kind of methodologies

could they come up with? Well, so there's two or three methodologies that the Department of Homeland Security has at its disposal. The first is they that can come up with estimates with entry exit data that they've been operating with recently, because we now know how many people exit the United States from Canada who enter, and we now know how many people ex at the airports of the United States, and so what we don't exactly know how many people would exist from the land border of Mexico.

So we're gonna have a bit of an overcount, but we'll be able to know for the last few years how many visa overstays there have been on average. And then the question is, well, how many people are here who unlawfully crossed through the border, And they're they're gonna have to come up with some estimates and take from that estimate how many years are we talking about for a year, and what are we subtracting in terms of people who have been either removed or who have voluntarily left.

And so that the problem with that debate is that debate always comes down in the line of foot far between ten and twenty millions, and depending on what number you choose, you're making as gramatic difference in the census. And so that's the problem. And I mean, we know what we know, but we also know what we don't know, and what we don't know is literally a ten million person spread, and that just makes too much of a

difference to leave it of guesswork. So Lynn, let's say that the lawsuits fail and the Census Bureau completes its data collection and you get this census result that is questionable that scientists or sociologist question. Can anything be done once the census data is collected to change it? Well, so here's the complication. If you're challenging it based on the status issue, well, that would have been resolved in

this lawsuit, so you couldn't do it on that. So you have to challenge it on how many human beings answered the census that you could verify have legal status and say that number is more than what the government gave us credit for. And so yes, you could challenge that, and it would have that same three judge panels. But the question is then you the challenger would have the burden approved to show that the government's calculation was wrong, and so that would require I think a set of

chords that was interested in finding that decision. Thanks Leon, that's Leon Fresco, a partner at Hondon Knight. You're listening to Bloombird Law with June Grassol. Some infighting among conservatives could reshape the judicial selection process on the right, starting with that new list of potential Supreme Court nominees that

President Trump has promised to release next month. A network at conservative groups such as the Heritage Foundation and the Federalist Society have helped President Trump on his mission to make the judiciary more conservative. Recently, that movement has come under fire from social conservatives, who say it's mainly delivered business friendly judges, while conservative voters care more about restricting abortion, immigration, and lgbt Q rights. Joining me is an authority on

the courts. Carl Tobias, a professor at the University of Richmond Law School, Carl, let's start with Trump's mission to have a more conservative federal judiciary. Have the Republicans been ramping back up with judicial nominations. No, Actually, the nominations and confirmations are moving rather slowly, I think in part because of the bad optics if they're confirming judges when they haven't done very much by way of a new stimulus package, and so Leada McConnell seems to be holding back.

Though today there will be a closure vote and a confirmation vote on Southern District nominee for New York named Cronin. He has leap frogged ahead of a number of others, for example Eastern District nominee Jujarati, who has been waiting thirteen months for a confirmation vote. So there's some cherry picking going on, um, but pretty limited in this three week period which will end today when the Senate's returned. Uh, they've only confirmed three district judges and so there are

many waiting. Let's turn now to the Supreme Court. Explain why the president has promised to release a new list

of potential Supreme Court nominees. Well, I think President Trump has decided to do that because he believes in part that his election the first time hinged on his Supreme Court list, which wasn't about twenty possibilities that he promised he would pick from in filling vacancies and then justice courses and Justice Kavanaugh were on the lists or that list that he compiled, and so he's promising a new list in September, which may include some of the people

on the earlier list, but a number of his appellates appointees are likely to appear on that list as well. Some social conservatives have criticized the network led by the Federalist Society and the Heritage Its Foundation that has been helping Trump choose judges and helping him with these lists, and they say that they mainly delivered business friendly judges failing right wing voters who care about restricting abortion, immigration,

and lgbt Q rights. Do you see that as having happened well to some extent, I think there's substantial disappointment expressed, I think most clearly by Senator Holly from Missouri about those issues you were talking about, especially religious freedom, immigration in other areas where the Supreme Court did not rule in a way that Trump or many of his supporters like Holly and others wanted uh, And so they're trying to find a full proof way to guarantee that, but

that seems to elude them. It's very difficult. Um. Even the I think there was a fair amount of vetting for the two doest justices uh, and many reassurances. The idea of going on the Supreme Court is that you will be impartial, that you can't pre judge any particular issues. So it's elusive, I think, and some people recognize that.

But you're right, those criticisms are there, and so there is a lot of dispute about should they even compile this, and if they do, how do they vet the people to guarantee, as Paully says, that they'll deliver the results that their proponents want. Holly has said that he would vote to confirm Supreme Court justices only if they agree that Roe v. Wade was wrongly decided, So he would put the nominees in a position of having to say that a case that is now president was wrongly decided.

Won't that put the nominees in a terror situation? Well could, and of course they won't agree to anything of that sort. Uh, And so it does seem like mission impossible, and even some of all these friends have criticized that. So we'll

see how that all plays up. But apparently there's a lot of controversy about how to compilable list and out of that people to guarantee the results that you want, and judges in nominees, to their credit, are not going to commit beforehand, and so that's what we expect from federal judges. The Federalist Society and Heritage Foundation have been at this for a long time and they have a network. I'm just wondering how President Trump intends to put a

new list together. Well, I think he's going back to those people UM at the Federal Society and Heritage and they're helping Leonard Leo, I think, who's a little advisor on judges to the president, probably will have substantial input.

UH and their number of conservative groups like Judicial Confirmation Network and others who are having I expect input, and I would also expect people like Holly and the members of the Judiciary Committee, especially on the Republican side, are likely to want to have input and may well have input. And so I don't think there'll be any lack of

people willing to help or names to be floated. But I think also they'll go back to the core list from UH and look at Trump's appointees of fifty three of them, perhaps to the appellate bench, does seem like the most likely choices. There are a couple of names that keep on resurfacing, and one is Naomi Rao, who was a very controversial appointee to the d C Circuit Court of Appeals, and she has been a really reliable vote for Trump, whether it's subpoenas for his financial records

or the prosecution of Michael Flynn. Is she trying out for the Supreme Court? Well, as we know, and it said before the DC Circuits the second most important court in the country. Here it's been a springboard for many to join the Supreme Court. Chief Justice Roberts, Justice Thomas just Ginsberg, Relate Justice Celia all served on that court, and so it shouldn't be surprising. And it gets exactly those kinds of controversial, high profile cases that Judge Row

has been involved in. The cases are assigned randomly, but you know, it's a small court. They're leving judges, and so she seemed to draw an inordinate number of those high profile cases that involved the president. And she has generally come down on the side of the president in writing opinions or defense, so people are looking at her closely. She has very much defended executive power in trump de

regulatory initiatives. What issues do conservatives have with Raw Well, I think that the DC Circuit docket hasn't served up very many of the cases that social conservatives are concerned about involving for example, abortion, immigration, UH, and those types of issues religious freedom. Those rarely come to the DC Circuit because it primarily looks at the majority of its cases are appeals of administrative agency decisions regulatory decisions typically UH.

And she has much expertise in those areas, and so I think that it's less clear how she might decide the issues that trouble Auli and others the social conservatives. How will she decide on religious freedom at the Supreme Court or abortion or immigration? And she doesn't have much at track records there, there's not much of a paper trail. What about Judge any Coney Barrett, who is a Federal

Appeals Court judge in Chicago. Well, she's on the Seventh Circuit, and I think the feeling among conservatives is she would be a sure bet on those kinds of issues UM. And they can look at her writings when she was a law professor and looked at her opinions on the

Seventh Circuit. So she hasn't signed off on very many, but I think they feel she's a much safer vote for their views in terms of abortion, religious freedom, perhaps immigration, UH and maybe some other social conservative kinds of issues and so H. There is a paper trail there, and I think they have a higher comfort level with her.

I understand that Conservatives were very upset by the rulings of a Supreme Court this term on a portion immigration and lgbt Q rights, But if you look at it, their last nominee, Rhett Kavanaugh, consistently voted with the Conservatives on the Court on those issues. So it seems as if they did do their job, their so called job,

in picking him. I think that's right, more so than Justice Corsage, who seems to be somewhat more independent, And of course he did joined the majority in most the opinion the lgbt Q k UH, and so there is some difference that seems like between the two of them,

at least this term. And then Chief Justice Robert has tended to be more concerned about institutional issues UH and the Court's reputation and credibility in a number of those cases as well, and he has often joined with the Democratic pointees Ellen, many of the issues that are troubling to some social conservatives, but not an abortion. An abortion.

He remained with the conservatives. Why I question all this, you know, looking and and vetting, because it seems to me that the most reliable conservative votes are Justices Clarence Thomas and Samuel Alito, who were picked well before this process. Yes, that's right, um, but maybe that just points out it's very difficult to predict exactly how people will resolve cases.

So I think, um, Democrats on the Judiciary Committee and then it were concerned that both of those justices um mant to be quite conservative, and they have prooves to be, and so it's not always easy to do to predict where I would justice aside, especially one who's open minded and side be cased on the law and the fact the Supreme Court is getting the highest approval ratings in a decade, with widespread support for how the justices are

doing their job across the ideological spectrum, according to a new Gallop pole released Wednesday. What do you make of that? Well, I guess the American people like courts that besides the law and the cases on the law, and the fact that doesn't seem so partisan or ideologically divided, though we'll see um so this term. I think people who favor more moderate decisions and less partisanship were relieved by some

of the decisions. But it really depends on what happens in the longer term, So we'll have to just see how that all plays out in subsequent terms and whether their new justices and who wins the election in November. Do you think that the Supreme Court is going to be a real issue in the upcoming election, Well, I think it's likely because President Trump, I think, has promised

that he would make it an issue. Even it's one of his great success stories, and maybe the most important one is is appoint each to the Spreme Court and certainly to the Federal Appeals Court, who will be serving for decades after he left the Thanks Carl. That's Professor

Carl Tobias at the University of Richmond Law School. A bail hearing by Zoom for the seventeen year old accused of hacking some of the world's highest profile Twitter accounts offered some surprises about the teenagers past brushes with the law, and then the hearing about the hacker was hacked itself and raunchy images were shown, bringing the hearing to an abrupt close, joining me as Bloomberg Legal reporter Christopher domesh So, Chris, this was a bail hearing for the seventeen year old

grandm Ivan Clark, who was charged with hacking into the accounts of notable businesspeople, celebrities, and politicians, including former President Barack Obama, Amazon chief executive Jeff Bezos, and Tesla CEO. Elon Musk tell us what happened at his bail hearing. So it was your pretty typical zoom court hearing. It took a little while to get going. There were a lot of different people on the line, obviously given the high profile nature of the case. And eventually they got started.

And the argument that the lawyer was making is at his bail, which is seven twenty five thousand dollars, it's way disproportionate to the alleged loss in the case, which is about hundred seventeen thousand. He had made his arguments. The prosecutor had argued against that, saying that they had only begun to examine the you know, the depth of this conduct. And it was hearing the end of the hearing um and it seemed like the judge was about to make a ruling when some pretty graphic images came

on the screen. I mean, we've had, you know, obviously as the pandemic's gone on, we've had a lot of interruptions on zoone calls and teleconferences between dogs barking and babies and things like that, But this is definitely a first for me in terms of graphic content. Just remind us what the charges are against him and what he's

accused of doing. So the charges are and he's got about thirty charges against him, including computer fraud, UH, communications fraud, major organized fraud, and he's accused of kind of organizing this this hack on you know, more than thirty different accounts, Elon Musk, Barack Obama among them, and you know, basically sending out messages on those accounts that after bitcoin donations, and that's the hundred and seventeen thousand dollars that they're

alleged is the loss in the cases that people responded to those tweets by sending bitcoin to him. UM, we don't know a whole lot about um the evidence right now, UM, and what's going on very early in the case, UM, and mostly UH the arguments so far been about bail and that sort of thing, so we're still waiting to hear a lot of details about what prosecutors are alleging.

During the bail hearing, it was revealed that his residence was searched a year before the hat Yeah, so last August um there was a search warrant served at his residence. They seized about fifteen thousand dollars in cash, his phones, some computer hardware, and they froze a bit max account that contained not sure exactly how many bitcoin were in there, but probably about on the bar of four hundreds something

like that. We're not entirely clear what the investigation was the results of His lawyers called it a joint investigation between the Santa Clara, California District Attorney's office and the Hillsborough County UM State's attorney in Florida, but the Florida Aureadis said they were only there to help serve the

search warrant regard lists. The investigation resulted in agreement between Clark and the Florida and California authorities in which he would surrender a hundred bitcoin to them and they would return the rest of his property, and he admitted no

wrongdoing and he wasn't prosecuted. We don't know really what the investigation is, but they have said in core papers that it was into a sim swap scheme where you know, hackers kind of take over a mobile phone in order to access personal information, and the authorities in Florida said that it involved depths from California residence of about a million dollars. The New York Times has linked Clark to a similar scheme where Seattle tech entrepreneur was the subject

of a sim swap the hack. During the hearing, his lawyers said that the hundred bitcoins Clark agreed to forfeit represented about of the cryptocurrency in Clark's account. So when you do the map, does that mean he has about three point six million dollars in his account? And how

did this seventeen year old get that money? So he said before that this was all These were all bitcoins that he made trading, and his lawyer did say during the bail hearing that he started with ten bitcoin and he was just a cryptocurrency trader and he made all the money through trading. So as far as we know, if you do the math, he probably has about four

hundred bitcoins. You know, it's a pretty inherent security flaw you know for any tech company is that you know, you have vast armies of people, you know, young people team to have grown up with technology, who have you spent years and years honing their skills, maybe operating in bedrooms, you know, um what have you and they are just as able to you know, conduct a sophisticated hack on a big company like Twitter as you know, maybe a

professionally trained team of hackers who are paid and recruited. It's definitely something they need to worry about. So the judge left the bail at seven five thousand dollars correct, but eliminated the requirements that he proved proved where the bail money came from. His lawyer successfully argued that because they starts in California and Florida had returned those proceeds to him, they and he wasn't prosecuted and admitted no wrongdoing,

that they couldn't argue that they were illegally appaid. Thanks Chris, that's Bloomberg Legal reporter Christopher dol Mesh. I'm June Grasso. Thanks so much for listening, and remember to Tune in to The Bloomberg Law Show every week night, atten pm Eastern on Bloomberg Radio