Copies of the 2010 Census forms. The 2020 U.S. Census will add a question about citizenship status, a move that brought disapproval from critics who said it would intimidate immigrants and discourage them from participating. Photo: Ross D. Franklin/AP

An official from the U.S. Department of Justice who was involved in adding a question about citizenship to the 2020 U.S. Census testified in his deposition that the data gleaned from the change might not even be more useful than what his agency currently uses to enforce the Voting Rights Act.

John Gore, who previously led the DOJ’s Civil Rights Division, testified that he couldn’t say for sure whether a hard count of citizens on the decennial census would provide greater benefit above data already used to bring cases involving voter discrimination.

Gore was asked by Dale Ho, the director of the American Civil Liberties Union’s Voting Rights Project, if the new data would be more precise than the information on citizenship already collected in a different survey from the U.S. Census Bureau. Gore replied that he didn’t know.

“So just to clarify, right now you don’t know whether or not [Citizen Voting Age Population] data produced from responses to the citizenship question on the census questionnaire will, in fact, be more precise than the CVAP data on which DOJ is currently relying for purposes of [Voting Rights Act] enforcement?” Ho asked.

“I believe that’s correct,” Gore replied. “I don’t know what the margin of error is that will be assigned to that, to that data.”

Ho’s point, according to the deposition transcript released Monday evening, was that the federal government has been bringing cases under the Voting Rights Act for decades using citizenship data gathered through the Census Bureau’s American Community Survey.

The survey, unlike the decennial census, is sent to a smaller sample of households each year. It asks about citizenship and produces annual estimates on the number of citizens in a given geographical area. It also compiles an aggregate set of data every five years based on responses from the preceding four years that’s considered a reliable indicator on demographics.

It’s unclear, according to Ho’s line of questioning, whether the margin of error for citizenship data collected on the decennial census will be smaller than that of the data collected from the American Community Survey.

That’s because the Census Bureau uses certain masking techniques with data collected on the census to protect the confidentiality of respondents in areas with smaller populations. They may swap that person’s data with that of a household in a different area, for example. That creates a margin of error that the Census Bureau has to account for when reporting data from the census.

When asked by Ho whether the DOJ had evaluated whether the margin of error would be smaller for citizenship data collected on the decennial census compared to the American Community Survey, Gore responded that he didn’t know whether his agency had made that determination.

Gore went a step further later in his deposition by saying that asking about citizenship on the next census would not be necessary for the DOJ to enforce the Voting Rights Act.

“You agree, right, Mr. Gore, that CVAP data collected through the census questionnaire is not necessary for DOJ’s VRA enforcement efforts?” Ho asked.

“I do agree with that. Yes,” Gore replied.

Ho is among the attorneys representing the New York Immigration Coalition in its lawsuit against the Trump administration over its decision to ask about immigration status on the next census. The New York Civil Liberties Union and Arnold & Porter are also representing the group.

New York Attorney General Barbara Underwood is leading a coalition of 18 states in similar litigation on the issue. The two lawsuits were consolidated for a trial on the issue, which started this week. Underwood told reporters in Manhattan on Monday that Gore’s testimony supports their case against adding a citizenship question to the census.

“I haven’t read his deposition, but that seems to be consistent with what we’ve said and what we will prove, that the argument that this was done to enhance Voting Rights Act enforcement is not the reason why this question was proposed,” Underwood said.

Gore suggested in his testimony that using a hard count on citizens collected on the decennial census to enforce the Voting Rights Act would be easier than using information from the American Community Survey. That’s because, when using the latter data, federal investigators have to use an additional estimation procedure to focus in on a particular area. That wouldn’t be needed if the data was already collected for each person in that location, Gore said.

He also testified that, while the American Community Survey data has historically been sufficient to bring cases involving the Voting Rights Act, gathering data on citizenship from the decennial census could allow the DOJ to pursue litigation the agency was hesitant to bring in the past.

“Again, we’re not talking about cases that weren’t filed,” Gore said. “And, obviously, any case that was filed was a case that the Department of Justice believed it could win.”

The deposition also revealed an alternative method for gathering data on citizenship that officials at the Census Bureau proposed in late 2017. Ron Jarmin, former acting director of the Census Bureau, suggested that using administrative and survey data would produce higher quality results at a lower cost than adding a citizenship question to the census.

Gore discussed the alternative with U.S. Attorney General Jeff Sessions, who ultimately rejected the proposal in early 2018, according to the deposition. That was after the DOJ sent a letter to the Commerce Department asking that a question about citizenship be added to better help it enforce the Voting Rights Act. Sessions even brushed off a request from the Census Bureau for a meeting on its alternative proposal, Gore confirmed.

Sessions spoke to Commerce Secretary Wilbur Ross multiple times about the addition of a citizenship question, Gore said, but he did not know the details of those conversations. Ross was supposed to be deposed as part of the lawsuit, but the U.S. Supreme Court has put his testimony on hold while it reviews a decision from the district court allowing extra-record discovery.

The trial before U.S. District Judge Jesse Furman of the Southern District of New York, meanwhile, will continue in Manhattan this week and is expected to finish sometime next week.

Senior trial counsel Elena Goldstein and Executive Deputy Attorney General Matthew Colangelo are leading the case for New York. Kate Bailey is the lead attorney for the Trump administration.


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