Ross Defends Census Question Despite Court Challenge

other news. Testifying at a House Oversight Committee hearing this morning, Commerce Secretary Wilbur Ross stuck with his contention that he included a citizenship question on the because Justice Department officials made a formal formal request of him. The Democratic chairman, Elijah Cummings said documents showed that Ross had been working to add the citizenship question from his first days at the Commerce Department, and he gave him a chance to

change his prior testimony, which Ross refused to do. Joining me is Richard Brafald, a professor at Columbia Law School. Rich A lot of these documents have been made public. There have been in two court cases on this issue. What do you know as far as the court cases,

what they've shown you about it? Well, the two court opinions, one from the Southern District of New York and one from the District Court in California have both been uh, quite devastating in terms of their interpretation their reading of what happened in terms of how the Secretary made the decision to add the citizenship question. Both really what happened? I say it sort of express deep doubts about the candor of the Secretary and indicate that there's a lot

of evidence that one of the decision was written. They decide the idea of doing this began very very early in the administration, long in advance of any letter from the Justice Department. And two that the letter from the Justice Department itself originated from pressure in part from the Commerce Department to get such a letter that we give them the excuse for adopting the rule on the citizenship questions.

So there's a lot of evidence in the court records that cut very much against what the Secretary has been saying. Would it make sense that the Justice Department at this time would need information like that to enforce the Voting Rights Act? Um? A lot of people say, no, Uh, they've been it's been done. The Voting Rights Act has

been enforced rather successfully without this question for some time. Uh. And they until until they were repeatedly proded by Commerce they had expressed no interest in this now or in prior voting rights prior presidential administrations which may have which were more known for their aggressive enforcement of the Voting

Rights Act. Now, from what I understand, even people in the Commerce Department, the experts in this area, which includes the Census Bureau, said the question could result in undercounting the state's non citizen population, and they've prepared methods to

sort of mitigate the shortfall if it happens. Right now, there's there's a lot there's well established evidence that if you ask this question, uh, even if you're known to be asking this question, some people will simply not fill out the form whether their non citizens themselves, where they simply have non citizens and their families. Uh, some households will have a mixture of citizens and non citizens, and that people will be uncertain, world doubt the secrecy of

the census results. They're supposed to be confidential, but they'll be nervous about it, and they'll be nervous that even if they are uh here legitimately with proper documentation, UM, they may be nervous that this will have some negative reaction for them. So there's a lot of concern that this will this if this question is asked, that it will exacerbate the undercount and lead to us to be an improper count. Let's discuss this case that's coming before

the Supreme Court on the census. Will Ross's testimony about this and his different Uh well, let's say, well Ross's testimony about this and his position on this be part of the Supreme Court case or not. It will be in the record as far as I know. I mean, that's that's what the Supreme Court technically doing is it is reviewing the decision of Judge Furman in New York on taking the case up before the before the case went through the Court of the Second Circuit Court of Appeals.

I'm not sure if they have yet added the case out of California, but everyone expects that they will, in part because the the the issue of what of the questions on the senses really has to be decided fairly soon. There really has to be decision. I think some people

think by June. So there is a closed record and some sense of the question is the judge fermantly made a conclusion a constitutional question but purely in the Administrative Procedure Act that the way in which the decision was made to add this question failed to comply with the Administrative Procedure Act. So there is a record on that. So I don't know that this will be and it's possible that the lawyers will try and get some of it in UM, but I think there already is a

complete record now. This second judge in California, Judge Seaborg, wrote that the inclusion of the citizenship question on threatens the very foundation of our demock radic system and does so based on a self defeating rationale. As you mentioned, two judges both times saying the citizenship question shouldn't be included. But looking at the Supreme Court, do you see with

this more conservative court a different opinion there? Well again and and certainly uh, two of the judges have already in uh, in separate opinions connected with the decision to take the case. I have expressed some doubts about what Judge Ferman in New York did. It was in a sort of an opinion by Justice Corsip Corshs, I think,

joined by Justice Thomas Um. I mean, at least the Ferman case, the New York case will focus really about administrative procedures and in theory should be whatever the views are about how the sensors should be wrong. The question really is did the did the Commerce Department follow the rules?

Did they do the kinds of review uh necessary to a nick major change like this that the law requires, as I, as advocates of the question will point out, pointed out and many times in the past a citizens citizenship question was part of the census of aways think the last time was either in or nineteen sixty, So it is a big departure in the last many decades. It's not out of a question for that question to be asked, but there is a real downside to it

in terms of reducing the accuracy of the count. And I think, what what the departments coartment should have done if I wanted to ask this question was due a legitimate review of whether of the benefits of the of the question versus the harms and the allegations that have been made by the people challenging this, And the finding I think in both the New York and California courts is that they failed to do the kind of assessment

that the Administrative Procedures Act normally requires. All Right, thanks so much. Rich as always, will be keeping our eyes on the Supreme Court for the final answer to this. That's Richard Brofald, a professor at Columbia Law School. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple podcast US, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg m