Census Bureau racing to complete noncitizen data, watchdog says

The director of the Census Bureau has pushed career employees to finalize a technical document that would help achieve President Trump’s goal of excluding undocumented immigrants from the decennial congressional apportionment, according to an inspector general’s letter released Tuesday.

The letter from Commerce Department Inspector General Peggy Gustafson to Census Bureau Director Steven Dillingham says several whistleblowers have reported that political appointees close to the architect of the administration’s hard-line anti-immigration policy have been pushing career employees to finalize the document just days before Trump leaves office.

Gustafson wrote that the whistleblowers described finishing the technical document by Friday, five days before President-elect Joe Biden will be sworn in, as “a number one priority” of the Trump administration.

The document is meant to fulfill Executive Order 13880, issued in July 2019, which would exclude undocumented immigrants from the official calculation of how many seats each state gets in Congress over the next decade.

Trump directed Commerce Secretary Wilbur Ross to deliver two sets of census data to the White House: one that reflects each state’s population, including noncitizens, and another that would allow for the exclusion of undocumented immigrants from the apportionment base.

The July presidential memorandum argued that California — without identifying it by name — is an example of a state that has unjustly benefited from its large share of undocumented residents, which is estimated at around 2.2 million, or more than 6 percent of its total population. Trump’s memo indicates that his plan could result in the state losing two to three seats in the House.

Nearly two dozen states and the District of Columbia challenged the order in court. That case eventually made it to the Supreme Court, where justices ruled 6-3 to dismiss the challenge.

The Supreme Court’s decision broke along ideological lines, with the six conservative justices finding that the lawsuit was premature, and the court’s three more liberal members writing in dissent.

But it remains unclear whether the data needed to implement Trump’s plan will even arrive in time.

The whistleblowers say they do not have enough time to conduct typical data quality checks, and said the technical report is not ready for publication. They added that they are not certain if the number of documented and undocumented people they have counted in each state is accurate, they do not understand the data sets they must analyze, and that incomplete data could be misused.

One whistleblower pointed out that the Census Bureau does not have any legal guidance on what constitutes someone of documented or undocumented status.

The Supreme Court ruled against a Trump administration effort to include a question about citizenship on the 2020 Census. Without that data, the Bureau will have to rely on datasets that come from outside its walls — something Census experts said made implementation of Trump’s executive order unlikely and legally shaky.

Dillingham, appointed to lead the agency by Trump in 2018 and confirmed the following year, inquired about rewarding employees financially for completing the document.

Dillingham did not respond to a request for comment through the Census Bureau’s press office.

Pressure to complete the report came from Nathaniel Cogley and Benjamin Overholt, two senior political appointees at the Census Bureau who are allies of Stephen Miller, a top White House aide and one of the administration’s most influential policy hands who has driven Trump’s hard line against immigrants.

Gustafson issued Dillingham a series of eleven questions about the report, from queries over the purposes and intended uses of the document to the reason for the Friday deadline. The responses are due by Thursday.

If the Trump administration tries to implement a reapportionment process without counting undocumented workers, another lawsuit is certain.

“If the Administration actually tries to implement this policy, we’ll sue. Again,” Dale Ho, who directs the ACLU’s voting rights project, said in a tweet. “And we’ll win.”