As the U.S. Supreme Court mulls whether U.S. Commerce Secretary Wilbur Ross will be deposed in a lawsuit over his agency’s decision to ask about immigration status on the next census, new questions have emerged on the involvement of former White House Chief Strategist Stephen Bannon.
The U.S. Department of Justice said in a filing this month that Bannon had at least one conversation with Ross early on in the Trump presidency about adding the question, several months before it was formally requested by the DOJ.
The revelation doesn’t answer a lot of questions. Instead, it raises more of them.
The plaintiffs in the case, a coalition of states and immigrants’ rights groups, want to know who in the Trump administration started the conversation about adding a citizenship question and what their motivations were.
Ross originally said the citizenship question came from the DOJ, which said in a letter last December the question would help better enforce the Voting Rights Act. Ross then said in a memo earlier this year that his agency had already started discussing the issue shortly after his confirmation last February.
Emails obtained through discovery have confirmed as much. About two months after he took office, Ross emailed his staff asking for an update on the citizenship question.
“I am mystified why nothing [has] been done in response to my months old request that we include the citizenship question. Why not?” Ross wrote in an email dated May 2, 2017.
That was around the time Ross spoke to Kansas Secretary of State Kris Kobach by phone about the issue. That’s where Bannon’s name surfaced.
According to the DOJ’s filing, Bannon arranged the phone call between Ross and Kobach, who has been an outspoken proponent of asking about immigration status on the census. The filing was in response to a query from the plaintiffs about which administration officials had either discussed or previously raised the idea of reinstating the citizenship question.
“Secretary Ross recalls that Steven Bannon called Secretary Ross in the Spring of 2017 to ask Secretary Ross if he would be willing to speak to then-Kansas Secretary of State Kris Kobach about Secretary Kobach’s ideas about a possible citizenship question on the decennial census,” the filing said.
Kobach said in an email to Ross last summer, a few months after their phone call, that it was “essential” for the census to ask about citizenship.
“This lack of information impairs the federal government’s ability to do a number of things accurately,” Kobach wrote. “It also leads to the problem that aliens who do not actually ‘reside’ in the United States are still counted for congressional apportionment purposes.”
Rick Su, an immigration and government law professor from the University at Buffalo School of Law, said adding Bannon and Kobach’s names to the mix has the potential to throw a wrench into the Trump administration’s defense.
“Once you throw in Steve Bannon as an individual and his suggestion that Ross talk to Kris Kobach, and his kind of background, it starts getting closer to the allegations the plaintiffs want to make,” Su said. “Which is that their motivation was not to allow the DOJ to better protect the voting rights of minorities, but arguably the opposite.”
Bannon’s involvement isn’t necessarily a game changer in the case, Su said. That will depend on what comes out during trial and what’s gleaned from Ross when, or if, he is deposed. If there is evidence administration officials were influenced by racial discrimination to add the question, that could be problematic for the government’s defense, Su said. But that argument could also be a challenge for the plaintiffs.
“Where it gets complicated is that the Equal Protection Clause [of the Constitution] forbids racial animus or discrimination but it doesn’t necessarily forbid partisan motivations for doing so,” Su said. “The question is, is that racially motivated, or partisan motivated? In American politics today, those two are the same.”
It’s possible the plaintiffs could use Bannon and Kobach to argue the decision was not properly done as a matter of administrative law, rather than as a constitutional issue, said Rick Hasen, an election law expert from the University of California, Irvine School of Law.
“The strongest argument I’ve seen so far is not a constitutional argument but a statutory argument about the Administrative Procedure Act,” Hasen said. “The court was talking about how they didn’t go through the normal processes for adding questions to the census and to the extent that it was being done for political reasons rather than for sound reasons related to the census, that would suggest it could be arbitrary and capricious and in violation of the [APA].”
That may be a more effective argument, Hasen said, because of the thin line between what is considered a political motive and what could be perceived as racially discriminatory. The former motive might fail in a constitutional argument, but could hold more weight against a statutory violation.
“I think all else being equal, the APA argument is likely to have more of an appeal,” Hasen said.
That’s how the lawsuit started. The original complaint objected to the merits of the question but also claimed the Trump administration had gone about it in the wrong way. If they had, the plaintiffs argued, a thorough analysis of the pros and cons may have shown asking about immigration status would not benefit the census or the states it’s counting.
The plaintiffs have argued that asking about citizenship will lower participation in the census in states with high immigrant populations, such as New York. That could cause those states to lose representatives in Congress or the Electoral College. It could also reduce federal funding in such areas as education and health care.
A spokeswoman for New York Attorney General Barbara Underwood, a lead plaintiff in the case, repeated that argument when asked for comment on Bannon’s involvement Monday.
“We’ll get to the bottom of how the decision to demand citizenship status was made, as we continue our case to ensure a full and fair Census,” said Amy Spitalnick, spokeswoman for Underwood. “As we’ve argued, the Trump administration’s plan to demand citizenship status as part of the Census is unlawful – and could cause a huge undercount that would threaten billions in federal funds and New York’s fair representation in Congress and the Electoral College.”
U.S. District Judge Jesse Furman of the Southern District of New York, who is presiding over the case, said in July there was “strong” evidence the Trump administration acted in bad faith when deciding to ask about citizenship. Since then, the big question in the lawsuit has been about whose influence was behind the decision.
The plaintiffs are hoping to get that answer from Ross during his deposition, which could happen anytime over the next two weeks if the Supreme Court allows it. Furman has set a trial date for Nov. 5.
Underwood is leading a coalition of 18 states in the lawsuit against the citizenship question. A different lawsuit brought by the New York Immigration Coalition, which is represented by the New York Civil Liberties Union, the American Civil Liberties Union, and Arnold & Porter, was consolidated with Underwood’s suit for trial.
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.
A press agent for Bannon did not immediately return a message seeking comment.