In July 2020, the Brennan Center submitted requests under the federal Freedom of Information Act (FOIA) to ten federal agencies for information on the Trump administration’s plans for calculating the state-population totals used to determine the state apportionments in the U.S. House of Representatives based on the results of the 2020 Census.
When the agencies failed to respond in a timely manner, the Brennan Center filed a lawsuit to compel production of the requested documents with assistance from our pro bono counsel, Wilmer Cutler Pickering Hale and Dorr LLP. On October 30, 2020, the trial court granted our motion for a preliminary injunction and ordered the federal government to produce most of the requested documents on a rolling basis by January 11, 2021. The government produced the records on a rolling basis, with its final production made on September 15, 2021.
What follows is a description of the most significant records produced by the Commerce Department and the Census Bureau in response to our FOIA requests.
The Trump administration attempted to exert extreme partisan influence over the Census Bureau.
Our FOIA records suggest that the Trump administration attempted to exert extreme partisan influence over the Census Bureau as it was conducting the 2020 Census, and that career Bureau officials pushed back at those attempts. An email among senior officials at the Census Bureau from September 14, 2020, discusses the Commerce Department’s “unusually high degree of engagement in technical matters, which is unprecedented.” The email shows that Bureau officials planned to discuss the Department’s undue involvement in five areas that the Bureau considered to be its own, independent responsibilities. The issues to be discussed included the Bureau’s counting methodologies, data processing decisions, disclosure avoidance, the production of citizenship data, and the methodology for calculating the undocumented populations of each state.
Other records suggest that the Commerce Department planned to have Commerce Secretary Wilbur Ross make personal calls to Republican state governors to urge them to provide state administrative records to the Census Bureau to “enhance the frame from which citizenship status is determined.” (The Brennan Center did not uncover evidence that Commerce planned to make similar calls to Democratic governors.)
The records also show that political appointees came onto the scene late into the 2020 Census process. An email from Director of the Census Bureau Steven Dillingham shows that Dillingham introduced two political appointees to career officials at the Bureau as late as August 2020. The email states that the two appointees are “interested in” the administration’s efforts to produce citizenship data. Those appointees were later reported to have led the administration’s efforts to produce a report on undocumented populations in the final days of the Trump administration.
There was a complete lack of public transparency regarding the administration’s attempts to collect and produce citizenship data, particularly the practical difficulties with producing that data.
President Trump issued a memo in July 2020 stating that he would illegally attempt to remove undocumented populations from the apportionment count due at the end of December 2020. Our FOIA records show that Census Bureau officials tasked with carrying out that memo did not think it was feasible or statistically sound to do so. An August 6, 2020, email addressed to Bureau Director Dillingham and political appointee Nathaniel Cogley states that the Bureau “has been consistently pessimistic” about the feasibility of determining the undocumented populations of the states.
Another email among career Bureau employees dated August 6, 2020, states that “under the best, most legally defensible methodology, we are at great risk of not being able to carry out the policy outlined in the Presidential Memorandum by December 31, 2020.” In a briefing from August 2020 on potential methodologies for calculating the undocumented population, moreover, the Bureau stated that it “typically is transparent about methodologies used for data products” and recommended publication of a Federal Register Notice on the methodology “because transparency requires that the American public understand how we derived the counts of unauthorized immigrants and have the opportunity to comment on that methodology.” No Federal Register Notice was ever published. And despite these warnings that the Bureau could not produce sufficiently accurate statistics, the administration tried to produce a report on undocumented populations in early January 2021.
In July 2019, President Trump also directed the Census Bureau to produce statistics on citizenship pursuant to Executive Order 13880, which sought to exclude undocumented people from redistricting. As part of that effort, the Bureau requested driver’s license data from the states. The media reported that four states had agreed to comply. The majority of states, however, were believed to have denied the request. Our FOIA records show that more states shared much more data with the Census Bureau than was previously reported. A Bureau PowerPoint dated June 8, 2020, indicates that, as of that date, 27 states and one California jurisdiction had entered into agreements to share Temporary Assistance for Needy Families (TANF) records with the Bureau, 21 states to share Women, Infants, and Children (WIC) records, 29 states and one California jurisdiction to share Supplemental Nutrition Assistance Program (SNAP) records, and three states to share driver’s license data. The Bureau was collecting this data despite that, as one record dated September 18, 2020 indicates, it had not yet chosen a viable methodology for producing citizenship data and had determined that some sources of administrative records — including TANF, SNAP, and driver’s license records — provided “very limited additional return” on accurately calculating citizenship statistics.
The Trump administration’s Commerce Department was in close contact with anti-immigration groups.
Our FOIA records show Mark Krikorian, Executive Director of the Center for Immigration Studies, emailing directly with Secretary Ross in December 2019. The Center for Immigration Studies is an organization classified by the Southern Poverty Law Center as an anti-immigrant hate group that “has a decades-long history of circulating racist writers, while also associating with white nationalists.” The email also refers to a call from Secretary Ross.
Commerce Department employees were also engaging with the anti-immigrant Heritage Foundation. An email chain shows a Commerce Department official putting political appointee Nathaniel Cogley into direct contact with Heritage’s Hans Von Spakovsky, an individual the Brennan Center has previously flagged for his extensive background promoting voter suppression efforts.