The Question of Who Gets to Count in the Census Goes to the Supreme Court (ep. 42)

April 18, 2019
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On Tuesday, April 23, the Supreme Court of the United States will hear the case Department of Commerce v. New York, which asks whether a question about citizenship can be added to the 2020 Census questionnaire. The case will be argued by Dale Ho, the director of the ACLU Voting Rights Project. He joins At Liberty to discuss the case and how he's preparing for oral argument in our country’s highest court.

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EMERSON SYKES
[0:04] From the ACLU, this is At Liberty. I'm Emerson Sykes, a staff attorney here at the ACLU and your host.

On April 23, the Supreme Court of the United States will hear a case called Department of Commerce versus New York.

The case is about whether or not a question about citizenship can be added to the 2020 Census questionnaire. The Department of Commerce, which is responsible for carrying out the census, says it needs to collect citizen information and that it has every right to decide what demographic questions go into the census as long as they are reasonable, leaving the courts with limited ability to review the government’s action.

Arguing the other side in this case is this week’s guest. Dale Ho is the Director of the ACLU’s Voting Rights Project and the first three-time guest on At Liberty. Dale has litigated many important voting rights cases all over the country, but this will be his first Supreme Court argument. We wanted to take the opportunity to speak with him about the case and about the process of preparing for oral argument in the Supreme Court.

Dale Ho, thanks very much for joining us today despite your very busy schedule. Welcome back to the podcast.

DALE HO
Thanks for having me back.

EMERSON
Can you start by telling us briefly what this case is about? What questions does the court need to decide, and why is it important?

DALE
So let me start with what this case is about. It's about a pillar of our democracy. Article 1, Section 2, Clause 3 of the United States Constitution requires a census of the entire population every 10 years. We're supposed to count everyone in the country — adults and children, citizens and non-citizens, whether you're a voter or a non-voter. And it is really foundational for our constitutional structure. That count is the basis for everything that we do statistically as a country, in government and in business. It's how we apportion representation in Congress, in state legislatures, and how we allocate 900 billion dollars in federal funds annually.

[2:03] And we do it only once every 10 years. So if you screw it up, there's no way to fix it for a decade. What the government wants to do is add a question on citizenship to the census, and what the Census Bureau has recommended for decades is that it’s a terrible idea because non-citizens and people who have non-citizens in their family are — I think understandably — reluctant to share that information with the federal government, notwithstanding the fact that census responses are confidential.

And what the Census Bureau has said for decades is that if you add this question, it's going to wreck the accuracy of the census. The Census Bureau predicted that if you added this question in 2020, 6.5 million people won't respond to the census. That's a lot of people. If you put them altogether, they'd be our 18th largest state — it's more people than in the state of Missouri. And what's worse is that non-citizens aren't distributed evenly throughout the country. They're clustered in particular places, and those states and communities will be at severe risk of an undercount and losing representation in Congress and important federal resources. Texas, California, Florida, Illinois, Arizona, New York, all six of those states would lose a seat in the House of Representatives if this question were added. So it's difficult to understate the importance of this case and the severe consequences that would flow from adding this question to the census.

Now what the court has to decide is whether or not there was a sufficient evidentiary basis in front of the administration for adding it. That is, whether or not there was evidence to support the administration's rationale. The administration says they need this information to enforce the Voting Rights Act, which we all know is a very high priority of this administration. It hasn't filed a single case under the Voting Rights Act in over two years, and yet they say they need to upend decades of practice, contrary to the consistent recommendations of the Census Bureau, to enforce the statute that they have shown zero interest in enforcing. It just doesn't make any sense.

EMERSON
[4:02] Well If I can just jump in there, there are sort of two key questions here. It seems like on the one side it's an argument around administrative procedure. Did they follow the proper procedure...

DALE
Yes.

EMERSON
... for adding the question to the census? And you have quite strong arguments that say no, they didn't follow the proper procedure and we can get into all the reasons that you think that's the case. But then there's also the substantive question about whether the census should actually have a citizenship question.

So can you talk a little bit about the sort of substance versus the process. Can you win on one and lose on the other? What does the court need to do here and what does it mean for you to win or lose?

DALE
It's actually I think kind of difficult to disentangle the procedural and substantive questions here because the administration's procedures here were quite problematic. They overruled the unanimous opinion of the Census Bureau. They concealed the real reasons for wanting to add this question. They say it's the Voting Rights Act, but clearly that's not something that interests this administration at all. They clearly had some other agenda in mind, and we can talk about that. They didn't test this question, which the Census Bureau typically requires before a new question is added to the census because the Census Bureau is concerned about the accuracy of that count.

Those are all problems, and those would be sufficient bases, those procedural violations for striking down the decision. It's difficult to disentangle the procedural questions from the substantive ones. The question, we're worried, is going to wreck the accuracy of the census. The Census Bureau recommended not to do it, and the administration didn’t allow the Census Bureau to conduct all of the testing it would normally conduct to build as strong a record as possible for whether or not this question is one that makes sense. So yes, this case is about proper procedure, but it's difficult to disentangle those the procedural and substantive questions.

EMERSON
[5:56] And you talked about the fact that the Voting Rights Act excuse is not credible and that you have evidence that there are all sorts of other reasons that they want to ask the citizenship question. Can you tell us what is the most damning evidence that you've found against the government? What really is behind the addition of this citizenship question?

DALE
Well, the Secretary of Commerce, Wilbur Ross, who oversees the Census, he wrote in his decisional statement, where he ordered the Census Bureau to add this question, that his decision making process was initiated when he received a letter from the Department of Justice in December of 2017 asking for the question to facilitate enforcement of the Voting Rights Act. That memorandum basically echoed testimony that Secretary Ross had given in Congress that he was responding solely to the Department of Justice, that he had not had any conversations with political actors in the White House about this.

And we know once we got the Commerce Department's documents that all of that was false. That in fact, by May of 2017 — seven months before the Department of Justice ever sent a letter about the Voting Rights Act — Wilbur Ross was already furious with his aides, writing angry emails to them, asking them why they had not already added the citizenship question to the census. The notion that this would be helpful for the Voting Rights Act appears on only a few pages out of 13,000 pages worth of documents that we got from the Secretary of Commerce.

But what appears far more frequently is constant grousing from the Secretary, from his aides, from political actors in the White House, Kris Kobach — who was then the Secretary of State of Kansas and who Steve Bannon put in touch with Commerce Secretary Ross — constant grousing that noncitizens are included in the population count of the census. And that states and areas that have noncitizen populations are receiving quote “credit” for those populations in the apportionment of political representation, notwithstanding the fact that the Constitution is quite clear that representation in Congress is apportioned to the states according to their respective numbers of inhabitants with no regard to citizenship, age, voting status, or anything like that.

[8:09] So we know that the Secretary made his decision before the DOJ ever mentioned the Voting Rights Act and we know that the issue that keeps cropping up frequently in the documents is not the Voting Rights Act, but instead an anti-immigrant agenda.

EMERSON
Well you talk about the sort of ulterior motives of the government. And one other way that manifests itself is the very unusual path that this case has taken to the Supreme Court.

DALE
Yes.

EMERSON
People may know that for, in general, federal cases are tried in district courts, which exist in every state. And then if there's an appeal, they go up to the Circuit Court of Appeals, which exists around the country by region. And then if there's a further appeal, it goes up to the Supreme Court to decide the question. But this case had a very different path to the Supreme Court. Can you just tell us a little bit about what was so unusual about the way that the case got there?

DALE
Yeah, so we got to the Supreme Court on several occasions in this case before the trial was complete. And the reason for that was the government's desperation to avoid a trial in this case. The government filed 14 separate motions to stop this trial from happening. I've never had a case with more than one such motion.

EMERSON
It means you're on the right track and so I’d say.

DALE
But I think it speaks to not only a lack of confidence in what the evidence is, but a desperation to conceal what the Trump administration's real agenda was here. And they would file these motions, they’d lose, they’d try to stop discovery, they’d try to stop us from getting documents, or stop a deposition from happening, or stop the trial from happening altogether. And when they’d lose, they’d take it up to the Supreme Court. Normally the Supreme Court doesn't hear discovery disputes. They usually like to let those kinds of issues play out in lower courts and then just take the case all up at once.

[9:57] But at one point they actually were able to get the Supreme Court to bite. We had an order from the trial court in this case to take a deposition of Commerce Secretary Ross based on some of the misrepresentations that I was describing earlier. You know it's difficult to get a deposition of a cabinet secretary and for good reason — they're very busy people, they have lots of responsibilities, and we normally presume that the heads of government agencies act in good faith. Here, however, there was very strong evidence that that is not what happened, that there were significant irregularities, that there was bad faith, and that the only person who knew what really was motivating this decision was Secretary Ross himself. We got an order from the court permitting his deposition, and then about 48 hours before the deposition was to occur the Supreme Court stayed that order.

EMERSON
And a deposition just briefly is an in-person interview with someone you think might have additional information on the case.

DALE
Right. And it's on the record and it's under penalty of perjury.

EMERSON
So the case first went up on this question about whether or not you could have access to a senior cabinet official.

DALE
That's right.

EMERSON
But something very strange happened — as they were considering this preliminary question, they allowed the lower court trial to continue.

DALE
Right.

EMERSON
So in some sense you were trying this case in multiple courts at the same time and eventually the district court, as I said, issued an extremely lengthy opinion, very strongly finding in your favor. So then you were already at the Supreme Court about this question about Wilbur Ross and whether you could interview him. And in the meantime, you won in the lower court.

So now is it accurate to say that now the court has to decide, not just the question of Wilbur Ross, but also whether or not you properly won in the district court?

DALE
Whether or not we properly won in the district court, but also all of those discovery questions: what kind of evidence was proper for the District Court to consider. The deposition of Wilbur Ross I think at this point is moot because the trial has already happened.

And as you mentioned, it's very unusual to be in multiple courts simultaneously on the same case. I think the reason for that was largely because of the time frame that we're under. The census questionnaire is supposed to be printed this summer.

[12:06] Normally, if you had legal questions that an appellate court was interested in, you might let the appellate court resolve those questions before proceeding with the trial. Normally, we might have been content to let that happen because obviously if we had won, then maybe we could have taken Secretary Ross's deposition and used that evidence at our trial. But we were under the gun. The census forms are supposed to be printed this summer and I think we all agree that everyone is best served by getting resolution on this case sooner rather than later.

EMERSON
Well I noticed in the ACLU’s brief advising the court on whether they should take the case you basically wrote you shouldn't take this case, you should leave the lower decision. But if you're gonna take, it take it now and decide it quickly.

DALE
Yeah. That's right.

EMERSON
Well one of the reasons that we think that the government was so eager to stop this case and specifically to get to the Supreme Court is that they probably think that they have a more sympathetic audience in this particular configuration of the Supreme Court.

How does that figure into your calculations as you approach this argument? Clearly they think that they have a better shot in the Supreme Court than they had in the district court. How are you approaching this? Are you tailoring your argument to any particular justice? Obviously justices can be unpredictable sometimes, so there's some risk to trying to crawl too deep inside their heads. But I wonder how you're thinking about the individuals that are on the bench.

DALE
Yeah, I mean to your first point, the Trump administration has definitely acted as though it sees the Supreme Court as a more hospitable venue for its positions than lower courts. Our case isn't the first case in which the administration’s tried to leapfrog the normal appellate process, which is you have a trial or a trial court decision, you go to the federal courts of appeals, the circuit courts. These are the intermediate appellate courts that resolve most appeals in the federal system. Very few cases go to the Supreme Court.

In case after case, the administration has sought to leapfrog that intermediate step and go straight to the Supreme Court because I think they've made a strategic calculation that they are more likely to prevail there than they are in the intermediate appellate courts. You've seen this in the DACA litigation, in the transgender military ban, and some other immigration related matters. We've generally opposed that. We generally don't agree that there's a basis for deviating from normal federal appellate procedures.

[14:20] Here, because of the urgency of getting resolution because of the printing date of those census forms, we didn't dispute that it was better to it to go quickly. As far as our strategy for the Supreme Court, there's a whole cottage industry of people who play psychologist trying to figure out the idiosyncrasies of the individual justices, to try to tailor your arguments to them. And of course we do a little bit of that in the way that we try to frame the case.

But at the end of the day, this case rises and falls on whether or not what Secretary Ross said — which is that this is going to be a more accurate census and give you more accurate citizenship information — whether that is supported by the actual evidence from the Census Bureau and its analysis before he made his decision. And the answer to both those questions is no. It's unequivocal. You look at what the Census Bureau wrote. They analyzed this. They determined it will not make a more accurate census, and it'll actually give you worse citizenship data than you could get from the Social Security Administration and the Department of Homeland Security. So why are we even here? Why are we even doing this?

EMERSON
It seems like the basic reason that many immigrant households especially might not want to answer this question that would result in the undercount that you're so worried about is some vague concern about information security and data security in terms of the census information. I know that you said that it's required to be confidential but if the government is collecting all of this house-by-house information including citizenship, one wonders where that information is stored and how securely that is done. Is that a major concern here?

DALE
[15:54] I think there are two separate concerns. There's privacy and confidentiality. Privacy means I don't want to share my information with you because I want it to be kept personal. Confidentiality is, it’s not so much about my information being shared with you, but what happens to it once it gets shared. And I think both concerns are at play here. You know I think some people just don't want to give that information out. They consider it personal and if it's asked, they'd rather not participate in a survey at all.

But then I do think there are concerns about confidentiality and whether or not the responses that people give to the census will ultimately be used for other purposes. I want to be very clear that federal law protects the confidentiality of census responses and if people are thinking about boycotting the census because of this question, that's not a productive response in our view. That will cause the very undercount of immigrant communities and communities of color that this administration is trying to effectuate. And those communities will lose the very representation and resources that this administration wants to deprive them of.

All that being said, people are worried about this, right? Census responses were used during the Japanese internment during the 1940s to identify, locate, and ultimately incarcerate Japanese Americans. So, you know, on the one hand, I want to reassure people. On the other hand I'm very understanding of people's fears here.

EMERSON
Well, what do you suggest? If the citizenship question is included on the census, what do you advise people to do? You said they should still answer most of the questions. Should they just refuse to answer that particular question? Do you have any advice on that regard?

DALE
No, I mean, responses to the Census generally and any questions on the questionnaire are required by law. I'd never advise people to break the law. We're not better off if the answers on the census questionnaire are inaccurate in any way. People should answer the survey. They should answer the questions truthfully and accurately. And people need to get the word out — because I think there is going to be a lot of concern in immigrant communities and communities of color about this question — that you are letting them win by not answering the census.

EMERSON
[18:04] Interesting. Well I want to maybe switch gears a little bit and talk about the process of preparing for oral argument, get behind the scenes a little bit. Oral argument is quite short, only a handful of minutes. But from others I've talked to who've argued in the Supreme Court, the preparation is extremely extensive. Can you just take us through a little bit of the process of preparing? What have you done so far? What do you have ahead of you?

DALE
Well normally you would file your brief and you'd have a few months to prepare for the argument. This case is on an expedited time frame and our brief was due 22 days before the argument — not that I'm counting. So the preparation process has been a little truncated. I'm obviously carefully reading all the briefs that have been filed in the case — not just ours and the government's, but the dozens of amicus briefs that have been filed, the cases that have been cited by all the parties, and going through an extensive what we call moot court process, mock oral arguments that can go about two hours at a time. More extensive series of moots than I've ever been through.

EMERSON
How many moots are you doing?

DALE
Five.

EMERSON
Wow.

DALE
Yeah. Each one lasts about two hours so it's about ten hours of being in the hot seat.

EMERSON
It's grueling. And in this process of reviewing all of these documents and doing all of these moots, have you learned anything new about the case or even about yourself as a lawyer?

DALE
Yeah, I mean it's interesting. Little things kind of jump out at you. Staring at the same documents for the tenth time, little phrases, little words, little details kind of jump out at you that I hope will make the answers that I give a little more rich.

So I have learned even more about the case. I thought I knew pretty much all there was to know about it when we did our brief, but even since then in the last week I learned a few things that I wish I had learned before the brief went in, but such is life.

Yeah, I do think I’m learning a few things about myself. One thing — that I do need to turn it off sometimes and let my brain rest. It's a marathon, not a sprint, and I'm more of a sprinter by nature. So it's learning to pace myself and that I need to pace myself is something that I'm learning a little bit.

EMERSON
[20:09] Do you have a day-of plan? You doing yoga in the morning, you have a special breakfast? You have your suit and tie picked out?

DALE
You know my last oral argument was in the U.S. Court of Appeals for the 10th Circuit last month.

So it wasn’t that long ago that I was doing this for a completely different case. The day before the argument, I went on a nine mile run and just re-read the briefs.

And I learned about a technique that apparently Chief Justice Roberts used when he was a lawyer, which was that he would write out what he thought were the five or six most important points in his case individually on notecards and then shuffle them, right, so that he could learn to present his case in any order and make transitions between any of his major points just on the fly. Come up with segues from one point to another even if it didn't necessarily follow the most logical order, because you don't know what order the questions are gonna come at you. So I did that for about 90 minutes the day before the argument and then again for about 30 minutes the morning of last time, and I actually found that very, very helpful.

EMERSON
That sounds like a good technique for practicing being a podcast host as well. I'll have to take that one.

DALE
Maybe…

EMERSON
Well, since you’re a colleague—

DALE
Maybe like your funny jokes or lines on a date or something like that.

EMERSON
Exactly.

DALE
What are the six funny things I could... I've been married for 10 years it's been a long time since… I don’t really remember.

EMERSON
I don’t know if it's on notecards, maybe it would be on your phone or something like that.

DALE
Yeah, something like that.

EMERSON
There might be an app.

DALE
Yeah.

EMERSON
Well since you're a colleague and our offices are almost next to each other…

DALE
[laughs]

EMERSON
... and you're deep in Supreme Court prep mode, I thought I'd end with a question that's a little tougher than normal.

So what's the question that you least want the justices to ask you?

DALE
That's a hard one because there are a number of questions that I've found challenging in some of our moots. I think, you know, there's no rational reason for this question, right? We know it's gonna make the census count worse. When they say we need citizenship information to enforce the Voting Rights Act, well we know there's better way to get citizenship information. It’s going to be more accurate, it’s less expensive. Adding the question is gonna make for more inaccurate data.

[22:19] And yet they're still desperate to do it, right? So, what is that, right? I think there's this kind of irrational desire to just put this question on the census to sort of express this notion that there are citizens who are “real” Americans here, and there's everyone else, right?

And we want to put that on this once in a decade document that is enshrined as a pillar of our constitutional structure in the text of the Constitution itself. And at the end of the day I think that's what this case is about for the other side and it would not surprise me if I get questions that aren't about the law, aren't about the evidence, but rather are expressions of that sort of sub-rational desire to have this question on the census.

And I'll do my best to keep the discussion about the law and the facts. But I do think it may be difficult to escape the politics of this. And to someone with that kind of political worldview, I don't know what to say other than that's not the kind of country that I want to live in.

EMERSON
Well it's always nice when you have the law and the facts on your side, so hopefully you can negotiate the politics.

DALE
We’ll see.

EMERSON
And just to wrap up what are you most looking forward to after your April 23rd?

DALE
Dinner with my wife.

EMERSON
Wonderful. Can't think of a better way to finish. Thank you very much, Dale Ho. We appreciate you coming back to speak with us.

DALE
Thanks a lot for having me.

EMERSON
[24:01] Thanks very much for listening. We hope you enjoyed this conversation. If you like this episode, be sure to subscribe to At Liberty wherever you get your podcasts, and rate and review the show. We appreciate your feedback. Till next week, peace.

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