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MANATT, PHELPS & PHILLIPS, LLP
JOHN F. LIBBY (Bar No. CA 128207)
E-mail: jlibby@manatt.com
JOHN W. MCGUINNESS (Bar No. CA 277322)
E-mail: jmcguinness@manatt.com
EMIL PETROSSIAN (Bar No. CA 264222)
E-mail: epetrossian@manatt.com
11355 West Olympic Boulevard
Los Angeles, California 90064
Telephone: (310) 312-4000
Facsimile: (310) 312-4224
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW
KRISTEN CLARKE (Pro Hac Vice Application Forthcoming)
Email: kclarke@lawyerscommittee.org
JON M. GREENBAUM (Bar No. CA 166733)
E-mail: jgreenbaum@lawyerscommittee.org
EZRA D. ROSENBERG (Pro Hac Vice)
E-mail: erosenberg@lawyerscommittee.org
DORIAN L. SPENCE (Pro Hac Vice)
E-mail: dspence@lawyerscommittee.org
1401 New York Avenue NW, Suite 400
Washington, DC 20005
Telephone: (202) 662-8600
Facsimile: (202) 783-0857
Attorneys for Plaintiffs
CITY OF SAN JOSE and BLACK ALLIANCE FOR JUST IMMIGRATION
[Additional Counsel Listed Below]
IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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CITY OF SAN JOSE, a municipal
corporation; and BLACK ALLIANCE FOR
JUST IMMIGRATION, a California
nonprofit corporation,

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3:18-cv-02279-RS
DECLARATION OF ANDREW CASE
IN SUPPORT OF PLAINTIFFS’
OPPOSITION TO DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT

Plaintiffs,
vs.

Date:
December 7, 2018
Time:
10:00 a.m.
Dept:
3
Judge:
The Hon. Richard Seeborg
Trial Date: January 7, 2019

WILBUR L. ROSS, JR., in his official
capacity as Secretary of the U.S. Department
of Commerce; U.S. DEPARTMENT OF
COMMERCE; RON JARMIN, in his
official capacity as Acting Director of the
U.S. Census Bureau; U.S. CENSUS
BUREAU,
Defendants.
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CASE DECL. ISO PLFS’ OPP’N TO DEFS’ MOT. FOR SUMM. J. – CASE NO. 3:18-cv-2279-RS

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I, Andrew Case, declare as follows:
1.

I am an attorney at Manatt, Phelps, & Phillips, LLP, counsel for Plaintiffs City of San

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Jose and Black Alliance for Just Immigration in the above-captioned litigation. I submit this

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declaration in support of Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment.

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2.

Attached as Exhibit A is a true and accurate copy of a selection of documents

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produced by the Department of Commerce in this matter, number stamped

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COM_DISC00017126, COM_DISC00017127, COM_DIS00018588, and COM_DIS00020953.

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3.

Attached as Exhibit B is a true and accurate copy of a selection of documents

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produced by the Department of Justice in this matter. These documents were not stamped on the

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face of the documents but were provided with the file names DOJ0002045, DOJ00020046, and

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093_DOJ00032084.

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4.

Attached as Exhibit C is a true and accurate copy of selections from the August 15,

2018 Deposition of Dr. John Abowd.
5.

Attached as Exhibit D is a true and accurate copy of selections from the August 20,

2018 Deposition of Dr. Ron Jarmin.
6.

Attached as Exhibit E is a true and accurate copy of selections from the August 28,

2018 Deposition of Karen Dunn Kelley.
7.

Attached as Exhibit F is a true and accurate copy of selections from the August 29,

2018 Deposition of Dr. John Abowd as a representative of the Census Bureau.
8.

Attached as Exhibit G is a true and accurate copy of selections from the August 30,

2018 Deposition of Earl Comstock.
9.

Attached as Exhibit H is a true and accurate copy of selections from the October 12,

2018 Expert Deposition of Dr. John Abowd.
10. Attached as Exhibit I is a true and accurate copy of selections from the October 16,
2018 Deposition of John Gore.
11. Attached as Exhibit J is a true and accurate copy of selections from the October 24,
2018 Deposition of Dr. Stuart Gurrea.
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CASE DECL. ISO PLFS’ OPP’N TO DEFS’ MOT. FOR SUMM. J. – CASE NO. 3:18-cv-2279-RS

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12. Attached as Exhibit K is a true and accurate copy of selections from the October 25,
2018 Deposition of Sahra Park-Su.
13. Attached as Exhibit L is a true and accurate copy of selections from the October 26,
2018 Deposition of David Langdon.

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14. Attached as Exhibit M is a true and accurate copy of Defendants’ Second

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Supplemental Responses to Plaintiffs First Set of Interrogatories to Defendants United States

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Department of Commerce and Wilbur Ross, produced on October 11, 2018 in New York

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Immigration Coalition et al. v. United States Department of Commerce et al,, 18-cv-5025

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(S.D.N.Y.).

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15. Attached as Exhibit N is a true and accurate copy of Defendants’ Objections and

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Responses to Plaintiffs’ Third Set of Interrogatories, produced on October 12, 2018 in New York

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Immigration Coalition et al. v. United States Department of Commerce et al,, 18-cv-5025

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(S.D.N.Y.).

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I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct.
Executed this 16th day of November, 2018 in New York, New York.

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__/s/ Andrew Case_________
Andrew Case

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CASE DECL. ISO PLFS’ OPP’N TO DEFS’ MOT. FOR SUMM. J. – CASE NO. 3:18-cv-2279-RS

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FILER’S ATTESTATION
Pursuant to Civil Local Rule 5-1(i)(3), regarding signatures, Ana G. Guardado hereby

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attests that concurrence in the filing of this document has been obtained from all the signatories

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above.

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Dated: November 16, 2018

s/ Ana G. Guardado
Ana G. Guardado

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CASE DECL. ISO PLFS’ OPP’N TO DEFS’ MOT. FOR SUMM. J. – CASE NO. 3:18-cv-2279-RS

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Additional Counsel for Plaintiffs
CITY OF SAN JOSE and BLACK ALLIANCE FOR JUST IMMIGRATION
PUBLIC COUNSEL
MARK ROSENBAUM (Bar No. CA 59940)
Email: mrosenbaum@publiccounsel.org
610 South Ardmore Avenue
Los Angeles, California 90005
Telephone: (213) 385-2977
Facsimile: (213) 385-9089
CITY OF SAN JOSE
RICHARD DOYLE, City Attorney (#88625)
NORA FRIMANN, Assistant City Attorney (#93249)
Office of the City Attorney
200 East Santa Clara Street, 16th Floor
San José, California 95113-1905
Telephone Number: (408) 535-1900
Facsimile Number: (408) 998-3131
E-Mail Address: cao.main@sanjoseca.gov

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CASE DECL. ISO PLFS’ OPP’N TO DEFS’ MOT. FOR SUMM. J. – CASE NO. 3:18-cv-2279-RS

  

To:
From:

l

Uthmeier, James (Federal).
PII
Shambon, Leonard (Federa1r···········································
Sent:
Fri 9/15/2017 8:37:51 PM
Importance:
Normal
Subject: Current version
Received:
Fri 9/15/2017 8:37:52 PM
foreigners included in enumeration Aug 21 2017.docx

Leonard M. Shambon
Special Legal Advisor
Office of the Chief Counsel for Economic Affairs
U.S. Department of Commerce

l........................................... P.11 . . . . . . . . . . . . . . . . . . . . . . l

COM_D1S00017126

 DRAFT
8/21/2017 3:35 PM

I.

Chronological History

Here is the history I've been able to compile, from Census instructions and residence rules, for
counting foreign citizens residing in the United States in census enumerations for apportionment. The
language (quoted from the underlying documents) is in reverse chronological order because the
instructions became more explicit over time.
Census Year
2020 (proposed):
3. Foreign Citizens in the U.S.
(a) Citizens of foreign countries living in the U.S. - Counted at the U.S. residence where they live
and sleep most of the time.
(b) Citizens of foreign countries living in the U.S. who are members of the diplomatic
community- Counted at the embassy, consulate, United Nations' facility, or other residences
where diplomats live.
(c) Citizens of foreign countries visiting the U.S. such as on a vacation or business trip - Not
counted in the census.

10. College Students

(e) College students who are foreign citizens living in the U.S. while attending college in the U.S.
(living either on-campus or off-campus) - Counted at the on-campus or off-campus U.S.
residence where they live and sleep most of the time. If they are living in college/university
student housing (such as dormitories or residence halls) on Census Day, they are counted at the
college/university student housing.
See Proposed 2020 Census Residence Criteria and Residence Situations - Proposed Criteria and request
for comment. 81 Fed. Reg. 42577, 42582-83 (June 30, 2016). Census would know if any comments were
submitted in response. In response to a 2015 Federal Register notice asking for comments on the 2010
residence rule, 80 Fed. Reg. 28950 (May 20, 2015), in anticipation of the 2016 notice, Census 262
comments, but only one dealt with foreigners, specifically how to treat foreign students at U.S. boarding
schools. Under the residence criteria, such students are ascribed to their parents' homes outside the
U.S. and therefore not counted. Census did not directly address the comment in the notice, but rather
adhered to its general rule for boarding school students. See 81 Fed. Reg. at 42578, 42579-80.

COM_DIS00017127

 2010:

5. Visitors on Census day

Citizens of foreign countries who are visiting the U.S. on Thursday April 1, 2010 (Census Day),
such as on a vacation or a business trip - Not counted in the census
8. Students

Foreign students living in the U.S. while attending college in the U.S. (living either on-campus or
off-campus) - Counted at the on-campus or off-campus residence where they live and sleep
most of the time.

14. Foreign Citizens in the U.S.
Citizens of foreign countries living in the U.S. - Counted at the U.S. residence where they live
and sleep most of the time.
Citizens of foreign countries living in the U.S. who are members of the diplomatic communityCounted at the embassy, consulate, United Nations' facility, or other residences where
diplomats live.
Citizens of foreign countries visiting the U.S. such as on a vacation or business trip - Not counted
in the census.

2000: 13. Foreign Citizens
Citizens of foreign countries who have established a household or are a part of an established
household in the U.S. while working or studying, including family members with them - Counted
at the household.
Citizens of foreign countries who are living in the U.S. at embassies, ministries, legations, or
consulates - Counted at the embassy, etc.
Citizens of foreign countries temporarily traveling or visiting in the U.S. - Not included in the
census

1990:

17. Person is a citizen of a foreign country:
a.
b.
c.

1980:

Who has established a household while working or studying, including family members
living with them - This household
Temporarily traveiling or visiting in the United States - DO NOT LIST
Living on the premises of an Embassy, Ministry, Legation, chancellery, or Consulate - DO
NOT LIST

The 1980 census residence rules stipulated, as in the past, that citizens of foreign countries
living on the premises of an embassy, legation, chancery, or consulate were not to be

COM_D1S00017128

 enumerated, but those who were living in housing units elsewhere to be canvassed and
included in the census.
1970:

[Haven't found instructions to enumerators or residence rules]

1960:

33. Citizens of Foreign Countries Temporarily in the United States
a. Do not list citizens of foreign countries temporarily visiting or traveling in the United States or
living on the premises on an Embassy, Ministry, Legation, Chancellery, or Consulate.
b. Do enumerate as residents of your ED [Enumeration District] citizens of foreign countries
living here who are students or who are employed here (but not living at the Embassy, etc.)
even if they do not expect to remain here. Also enumerate the members of their families if they
are living with them in this country.

1950:

V. Citizens of foreign countries temporarily in the United States:
A.
B.

Students and members of their families - Enumerate
Persons employed here and members of their families (but not living at an Embassy, etc.) Enumerate

C.

Any other visitors from a foreign country not included in A and B - Do not enumerate

0.

Persons living on premises of an Embassy, Ministry, Legation, Chancellory, or Consulate - Do
not enumerate

1940:

313 ..... As a rule, do not enumerate as residents of your district any of the following classes,
except as provided in paragraph 314:

d.

Persons from abroad temporarily visiting or traveling in the United States and foreign
persons employed in the diplomatic or consular service of their country (see par. 331).
(Enumerate other persons from abroad who are students in this country or. who are

employed here, however, even though they do not expect to remain here permanently.)
331 Diplomatic and Consular Employees of Foreign Governments - Do not enumerate citizens of
foreign countries employed in the diplomatic or consular service of their country.
1930:

59. Classes not to be enumerated in your district
should be enumerated as of your district.
c.

Persons from abroad temporarily visiting or traveling in the United States. (Persons from

abroad who are employed here should be enumerated, even though they do not expect to
remain here permanently.
1920:

63. Citizens abroad at the time of the enumeration .... This instruction applies only to citizens of the United States and not to aliens who have left
this country, as nothing definite can be known as to whether. such aliens intend to return. [By

implication, aliens who had not left the country were to be enumerated.] 1
1

This exclusion for transitory foreign travelers in the U.S. including transitory businessmen has its genesis as far

COM_D1S00017129

 1910:

With minor wording difference, same as for 1920

Before 1910: No instructions found re. enumeration of citizens of foreign countries.

II.

Court Finding
In the district court opinion in Federation for American Immigration Reform (FAIR) v. Klutznick,

486 F. Supp. 564 (D.C.D.C. 1980), dismissing the suit on standing ground, the three judge panel wrote:
The population base used for apportionment purposes consists of a straightforward
head count, as accurate as is reasonably possible, of all persons residing within a state
on April 1. This has been the practice since the first census in 1790; everyone is counted
except foreign diplomatic personnel living on embassy grounds (which is considered
"foreign soil," and thus not within any state) and foreign tourists, who do not "reside"
here. 486 F. Supp. at 567, 576. [ See also Ridge v. Verity, 715 F.Supp. 1308 (W.D. Pa.
1989).]

back as 1849. See Sen. Miscellan. No. 64, 30 th Cong., 2d Sess. 24 (Jan. 20, 1849 correspondence from Jesse
Chickering to Senator John Davis, primary Senate author of the 1850 census legislation). Chickering also likely was
the source of the place of birth questions included statutory schedule for that census. See id. 24-27.

COM_DIS00017130

 ~~~m:

8fh~~fe~~·J::~t(~~e;:~l1r·-·············~!l._. . ._. . ._. . ...l

Sent:
Fri 8/11/2017 8:05:48 PM
Importance:
Normal
Subject: Re: Census paper
Received:
Fri 8/11/2017 8:05:51 PM
Census Memo Draft Aug 11 2017 .docx

Thanks Earl, clean copy attached. I can swing a call any time after 4:30 today.

James

From: Comstock, Earl (Federal)
Sent: Friday, August 11, 2017 3:40 PM
To: Uthmeier, James (Federal)
Subject: Re: Census paper

Thanks James. Please take a look at the attached edits. If you agree then we can send to the Secretary, who wanted to
have a call today to discuss. Earl

From:"Uthmeier, James (Federal)"
PII
Date:Friday, August 11, 2017 at 10:18 AM
To:'' Comstock, Ear I (Fede ra I)" <[~.·~.·~·~.'~.·~·~.·~.'~.'~.~fC.~.·~;~.'~.·~.·~.'~.'~.]
Subject:Re: Census paper

Made a couple small edits for clarity. Also, I have not yet sent this to Peter. Just let me know if you want me to loop
him in-- I think he is heading out pretty early today, and I'm tied up 11-1, but maybe we can walk through with him early
next week.

COM_DIS00018588

 From:Uthmeier, James (Federal)
Sent: Friday, August 11, 2017 9:55:52 AM
To: Comstock, Earl (Federal)
Subject: Re: Census paper

Earl-

A draft, predecisional and privileged memo is attached. I know he likes short briefing materials, but I wanted to be more
thorough given the issue and our uncertainty regarding the exact question(s) being presented.

I will keep working to clean it up and am happy to incorporate any edits. I am out of the office for some MBDA and
infrastructure meetings but can be reached on my cell. I'll be able to talk today other than 11-1. Will be working over
the next hour to clean this up a bit.

If you want to provide some handwritten comments, you can deliver to Barb (OGC secretary) and she will get them to
me quickly.

I have some new ideas/recommendations on execution that I look forward to discussing. Ultimately, we do not make
decisions on how the data should be used for apportionment, that is for Congress (or possibly the President) to decide.
think that's our hook here.

Best,
COM_D1S00018589

 James

From:Comstock, Earl (Federal)
Sent: Friday, August 11, 2017 8:11:41 AM
To: Uthmeier, James (Federal)
Subject: Re: Census paper

Great. Thanks! Earl
Sent from my iPhone
> On Aug 11, 2017, at 7 :45 AM, Uthmeier, James (Federal) <t_·-·-·-·-·-·-·-·-·PII _____ ,___ ,______ ~ wrote:
>
> Earl>
> Finishing this up this morning and will have a memo to you by 930.

>
>James
>
> Sent from my iPhone

COM_DI S00018590

 Questions on the Jan 19 Draft Census Memo on the DoJ Citizenship Question
Reinstatement Request

1. With respect to Alternatives B and C, what is the difference,' if any, between the time
when the data collected under each alternative would be available to the public?

Since the collection of this data, whether from administrative records or from an
enumerated question, occurs prior to the creation of the Microdata Detail File (MDF) from
which all tabulations will be performed, there is no difference in the timing of when the
data collected under either alternative B or C could be made available to the public.
2. What is the "2020 Census publication phase" (page 1 of the Detailed Analysis for
Alternative B) versus Alternative C? Would there be any difference?

The 2020 Census publication phase is a broad window stretching from the release of the
apportionment counts by December 31, 2020 through the last data product or report
published in FY 2023, the final year of decennial funding for the 2020 Census. However, as
stated in the answer to question 1, this data could be made available to the public on the
same schedule as any other post-apportionment tabulated data product regardless of
whether alternative B or C is used in its collection.
3. What is the non-response rate for: (A) each question on the 2000 and 2010 Decennial
Census short form and (B) each question on the 2010 ACS and most recent ACS?

The table below shows the item non-response (INR) rate for each question on the 2000 and
2010 Decennial Census short form. This is the percentage of respondents who did not
provide an answer to an item.
Item Nonresponse Rates for 2000 and 2010 Short Form Person Questions
Hispanic
Race
Relationship
Sex
Age
Origin
3.5
3.3
2010
1.5
1.5
3.9
2.9
2000
1.3
1.1
3.7
3.1
Source: Rothhaas, Lestina and Hill (2012) Tables

Tenure
4.5
4.1

Notes and Soucre:
Rothhaas, C., Lestina, F. and Hill, J. (2012) "2010 Decennial Census Item Nonresponse and
Imputation Assessment Report" 2010 Census Program for Evaluations and Experiments,
January 24, 2012.
From report:

COM_DIS00020953

 The INR rate is essentially the proportion of missing responses before pre-editing or
imputation procedures for a given item (i.e., the respondent did not provide an answer to·
the item). For INR, missing values are included in the rates, but inconsistent responses (i.e.,
incompatible with other responses) are considered non-missing responses.
Online link to 2010 report that has 2000 information as well. ,
https ://www.census.gov/2010census/pdf/2010_ Census _IN R_I m putation_Assessment. pdf
See attached spreadsheet for the non-response rates for the ACS. Note that these are
internal use data.
4. What was the total survey response rate (i.e. percentage of complete questionnaires) for
the 2000 long form and the 2000 short form? Of the incomplete long forms, what
percentage left the citizenship question blank? Of the completed long forms, what
percentage (if known) contained incorrect responses to the citizenship question?

5. For the 2000 long and short forms, what was the percentage unanswered (left blank) for
each question (i.e., what percentage of the responses for each question (sex, race,
ethnicity, income, citizenship, etc.) were left blank)?

For the 2000 shortform, the table in question 3a provides the percentage unanswered for
each question.
For the 2000 longform, Griffin, Love and Obenski (2003) summarized the Census 2000
longform responses. Allocation rates for individual items in Census 2000 were computed,
but because of the magnitude of these data, summary allocation measures were derived.
These rates summarize completeness across all data items for occupied units (households)
and are the ratio of all population and housing items that had values allocated to the total
number of population and housing items required to have a response. These composite
measures provide a summary picture of the completeness of all data. Fifty-four population
items and 29 housing items are included in these summary measures. The analysis showed
that 9.9 percent of the population question items and 12.5 percent of the housing unit
question items required allocation. Allocation involves using statistical procedures, such as
within-household or nearest neighbor matrices, to impute missing values.
https ://ww2.a mstat.org/sections/srms/Proceedi ngs/y2003/Fi les/JSM2003-000596. pdf
6. What was the incorrect response rate for the citizenship question that was asked on the
long Form during the 2000 Decennial Census? Does the response rate on the 2000 Long
Form differ from the incorrect response rate on the citizenship question for the ACS?

COM_D1S00020954

 7. What is the incorrect response rate on other Decennial or ACS questions for which Census
has administrative records available (for example, age, sex or income)?
;

Table 7a. shows the agreement rates between the 2010 Census response and the SSA
Numident for persons who could be linked and had nonmissing values, and Table 7b shows
the agreement rates between the 2010 ACS and the SSA Numident. Gender has low
disagreement (0.4-0.5 percent), and white alone (0.9 percent), black alone (1.7-2 percent),
and age (2.1 percent) also have low disagreement rates. Disagreement rates are greater for
other races (e.g., 46.4-48.6 percent for American Indian or Alaska Native alone). Hispanic
origin is not well measured in the Numident, because it contains a single race response, one
of which is Hispanic.
Table 7a. Demographic Variable Agreement Rates Between the 2010 Census and the SSA
Numident
2010 Census Response
Hispanic
Not Hispanic
White Alone
Black Alone
American Indian or Alaska Native Alone
Asian Alone
Native Hawaiian or Other Pacific Islander
Alone
Some Other Race Alone
Age
Gender
Source: Rastogi, Sonya, and Amy O'Hara, 2012,
Census Planning Memoranda Series No. 247.

Percent Agreement with SSA Numident
54.2
99.7
99.1
98.3
51.4
84.3
74.4
17.7
97.9
99.4
"2010 Census Match Study," 2010

Abowd and Stinson (2013) find correlations of 0.75-0.89 between Survey of Income and
Program Participation (SIPP) and SSA Detailed Earnings Record annual earnings between
1990-1999. 1

1

Abowd, John M., and Martha H. Stinson, 2013, "Estimating Measurement Error in Annual Job Earnings: A
Comparison of Survey and Administrative Data," Review of Economics and Statistics, Vol. 95(55), pp. 1451-1467.

COM_D1S00020955

 8. How does the Census presently handle responses on the (A) Decennial Census and (B) the
ACS when administrative records available to the Census confirm that the response on the
Decennial Census or ACS is incorrect? Is the present Census approach to incorrect
responses based on practice/policy or law (statute or regulation)?

We have always based the short form Decennial Census and the ACS on self-response, and
while we have procedures in place to address duplicate or fraudulent responses, we do not
check the accuracy of the answers provided to the specific questions on the Census
questionnaire. This is a long established practice at the Census Bureau that has been
thoroughly tested and in place since 1970, when the Census Bureau moved to a mailout/respond approach to the Decennial Census. Title 13 of the U.S. Code allows the Census
Bureau to use alternative data sources, like administrative records, for a variety of
purposes, and we are using data in new ways in the 2020 Census. While this includes the
use of administrative records data to fill in areas where a respondent does not provide an
answer, we have not explored the possibility of checking or changing responses that a
responding household has provided in response to the questionnaire.
9. Please explain the differences between the self-response rate analysis and the breakoff
rate analysis. The range of breakoff rates between groups was far smaller than the range
of self-response rates between groups.

10. The NRFU numbers are comparatively small - approximately one additional household for
NRFU per Census enumerator. Is this really a significant source of concern?

Yes, this is a significant concern. First, it gives rise to incremental NRFU cost of at least
$27.5 million. This is a lower bound becaues it assumes the households that do not selfrespond because we added a question on citizenship have the same follow-up costs as an
average U.S. household. They won't because these households overwhelmingly contain at
least one noncitzen, and .that is one of our acknowledged hard-to-count subpopulations.
11. Given that the breakoff rate difference was approximately 1 percent, why did Census
choose to use the 5.1 percent number for assessing the cost of Alternative B?

12. Alternative C states that Census would use administrative data from the Social Security
Administration, Internal Revenue Service, and "other federal and state sources." What
are the other sources?

In addition to continuing the acquisition of the Social Security Administration and Internal
Revenue Service data, the Census Bureau is in discussion with the U.S. Citizen and
Immigration Services (USCIS) staff to acquire additional citizenship data.

COM_D1S00020956

 13. Is Census confident that administrative data will be able to be used to determine
citizenship for all persons (e.g., not all citizens have social security numbers)?

We are confident that Alternative C is viable and that we have already ingested enough
high-quality citizenship administrative data from SSA and IRS. The USCIS data are not
required. They would, however, make the citizenship voting age tabulations better, but the
administrative data we've got are very good and better than the data from the 2000 Census
and current ACS. The type of activities required for Alternative C already occur daily and
routinely at the Census Bureau. We have been doing this for business data products,
including the Economic Censuses, for decades. We designed ~he 2020 Census to use this
technology too.
14. For Alternative C, the memo says, "we assume the availability of these record linkage
systems and associated administrative data" - does Census already have in place access
to this data or would this need to be negotiated? If negotiated, for which data sets
specifically?

The Census Bureau has longstanding contractual relationships with the Social Security
Administration and the Internal Revenue Service that authorize the use of data for this
project. For new data acquired for this project (i.e., USCIS) we would estimate a six month
development period to put a data acquisition agreement in place. That agreement would
also include terms specifying the authorized use of data for this project.
15. Are there any privacy issues/ sensitive information prohibitions that might prevent other
agencies from providing such data?

16. How long would Census expect any negotiation for access to data take? How likely is it
that negotiations would be successful? Are MOA's needed/required?

Current data available to the Census Bureau provide the quality and authority to use that
are required to support this project. Additional information potentially available from
USCIS would serve to supplement/validate those existing data. We are in early discussions
with USCIS to develop a data acquisition agreement and at this time have no indications
that this acquisition would not be successful.
17. What limitations would exist in working with other agencies like IRS, Homeland Security,
etc. to share data?

The context for sharing of data for this project is for a one-way sharing of data from these
agencies to the Census Bureau. Secure file transfer protocols are in-place to ingest these

COM_DI S00020957

 data into our Title 13 protected systems. For those data already in-place at the Census
Bureau to support this project, provisions for sharing included in the interagency agreement
restrict the Census Bureau from sharing person-level microdata outside the Census Bureau's
Title 13 protections. Aggregates that have been processed through the Bureau's disclosure
avoidance procedures can be released for public use.
18. If Alternative C is selected, what is Census's backup plan if the administrative data cannot
be completely collected and utilized as proposed?

The backup plan is to use all of the administrative data that we currently have, which is the
same set that the analyses of Alternative C used. We have verified that this use is
consistent with the existing MOUs. We would then use estimation and modeling
techniques similar to those used for the Small Area Income and Poverty Estimates (SAIPE} to
impute missing citizenship status for those persons for whom. we do not have
administrative records. These models would also include estimates of naturalizations that
occurred since the administrative data were ingested.
19. Does Census have any reason to believe that access to existing data sets would be
curtailed if Alternative C is pursued?

No we do not believe that any access to existing data sets would be curtailed if we pursue
Alternative C.
20. Has the proposed Alternative C approach ever been tried before on other data collection
projects, or is this an experimental approach? If this has been done before, what was the
result and what were lessons learned?

21. Is using sample data and administrative records sufficient for DOJ's request?

The 2020 Census data combined with Alternative Care sufficient to meet DoJ's request. We
do not anticipate using any ACS data under Alternative C.
22. Under Alternative C, If Census is able to secure interagency agreements to provide needed
data sets, do we know how long it would take to receive the data transmission from other
agencies and the length of time to integrate all that data, or is that unknown?

With the exception of the USCIS data, the data used for this project a re already integrated
into the 2020 Census production schema. In mid-to late 2018, we plan to acquire the USCIS
data and with those data and our existing data begin to develop models and business rules
to select citizenship status from the composite of sources and attach that characteristic to

COM_DI S00020958

 each U.S. person. We expect the development and refinement of this process to continue
into 2019 and to be completed by third quarter calendar year 2019.
23. Cross referencing Census decennial responses with numerous governmental data sets
stored in various databases with differing formats and storage qualities sounds like it
could be complicated. Does Census have an algorithm in place to efficiently combine and
cross reference such large quantities of data coming from many different sources? What
cost is associated with Alternative C, and what technology/plan does Census have in place
to execute?

Yes, the 2018 Census End-to-End test will be implementing processing steps to be able to
match Census responses to administrative record information from numerous
governmental data sets. The Census Bureau has in place the Person Identification i
Validation System to assign Protected Identification Keys to 2020 Census responses. The
required technology for linking in the administrative records is therefore part ofthe 2020
Census technology. This incremental cost factored into the estimate for Alternative C is for
integrating the citizenship variable specifically, since that variable is not currently part of
the 2020 Census design. No changes are required to the production Person Identification
Validation system to integrate the administrative citizenship data.

24. For section C-1 of the memo, when did Census do the analyses of the incorrect response
rates for non-citizen answers to the long form and ACS citizenship question? Were any of
the analyses published?

The comparisons of ACS, 2000 Decennial Census longform and SSA Numident citizenship
were conducted in January 2018. This analysis has not been published.
25. Has Census corrected the incorrect responses it found when examining non-citizen
responses? If not, why not?

In the American Community Survey (ACS), and the short form Decennial Census, we do not
change self-reported answers. The Decennial Census and the ACS are based on selfresponse and we accept the responses provided by households as they are given. While we
have procedures in place to address duplicate or fraudulent responses, we do not check the
accuracy of the answers provided to the specific questions on the Census questionnaires.
This is a long established process at the Census Bureau that has been thoroughly tested and
in place since 1970, when the Census Bureau moved to a mail-out/respond approach to the
Decennial Census.
26. Has the Department of Justice ever been made aware of inaccurate reporting of ACS data
on citizenship, so that they may take this into consideration when using the data?
1

COM_D1S00020959

 Not exactly. The Census Bureau is in close, regular contact with the Department of Justice
(DOJ) regarding their data requirements. Our counterparts at DOJ have a solid
understanding of survey methodology and the quality of survey data, and they are aware of
the public documentation on sampling and accuracy surrounding the ACS. However, the
specific rate of accuracy regarding responses to the ACS question on citizenship has never
been discussed.
27. Why has the number of persons who cannot be linked increased from 2010 to 2016?

There are several potential reasons a person might not be linked between the ACS and the SSA
Numident and ITIN IRS tax filings. There may be insufficient pe~sonally identifiable
information (PII) in the ACS response for the person to allow a search for the person in the
Numident or ITIN IRS tax filings at all. There may be more than one record in the Numident or
ITIN IRS tax filings that matches the person's PII. There may be a discrepancy between the PII
provided to the ACS and administrative records. Or the person may not be in the Numident or
ITIN IRS tax filing databases, either because the person is a citizen without an SSN, or the
person is a noncitizen who has not obtained an SSN or ITIN. Very few of the unlinked cases are
due to insufficient PII in the ACS or multiple matches with administrative records. The vast
majority of unlinked ACS persons have sufficient PII, but fail to match any administrative
records sufficiently closely.
The incidence of ACS persons with sufficient PII, but no match with administrative records
increased between 2010 and 2016. One contributing factor is that the number of persons,linked
to ITIN IRS tax filings in 2016 was only 39 percent as large as in 2010, suggesting that either
fewer of the undocumented persons in the 2016 ACS had ITINs, or more of them provided PII in
the ACS that was inconsistent with their PII in IRS records.

28. Independent of this memo, what action does Census plan to take in response to the
analyses showing that non-citizens have been incorrectly responding to the citizenship
question?

The Census Bureau does not have plans to make any changes to procedures in the ACS.
However, we will continue to conduct thorough evaluations and review of census and
survey data. The ACS is focusing our research on the potential use of administrative records
in the survey. For instance, we are exploring whether we can use IRS data on income to
reduce the burden of asking questions on income on the ACS. We are concentrating initially
on questions that are high burden, e.g., questions that are difficult to answer or questions
that are seen as intrusive.
29. Did Census make recommendations the last time a question was added?

Since the short form Decennial Census was established in 2010, the only requests for new
questions we have received have been for the ACS. And, in fact, requests for questions
prior to 2010 were usually related to the Decennial Census Long Form. We always work

COM_DIS00020960

 collaboratively with Federal agencies that request a new question or a change to a question.
The first step is to review the data needs and the legal justifjcation for the new question or
requested changes. If, through this process, we determine that the request is justified, we
work with the other agencies to test the question (cognitive testing and field testing). We
also work collaboratively on the analysis of the results from the test which inform the final
recommendation about whether or not to make changes or a.dd the question.
30. Does not answering truthfully have a separate data standard than not participating at all?

We're not sure what you're asking here. Please clarify the question.
31. What was the process that was used in the past to get questions added to the decennial
Census or do we have something similar where a precedent:was established?

Because no new questions have been added to the Decennial Census (for nearly 20 years),
the Census Bureau did not feed bound by past precedent when considering the Department
of Justices' request. Rather, the Census Bureau is working with all relevant stakeholders to
ensure that legal and regulatory requirements are filled and that questions will produce
quality, useful information for the nation. As you are aware, that process is ongoing at your
direction.

32. Has another agency ever requested that a question be asked of the entire population in
order to get block or individual level data?

Not to our knowledge. However, it is worth pointing out that prior to 1980 the short form
of the Decennial Census included more than just the 10 questions that have been on the
short form since 1990.
33. Would Census linking of its internal data sets, with other data sets from places like IRS
and Homeland Security, have an impact on participation as well (i.e. privacy concerns)?

The potential that concerns about the use of administrative records could have an impact
on participation has always been a concern of ours, and it's a,risk that we're managing on
our risk register. We've worked closely with the privacy community throughout the decade,
and we established a working group on our National Advisory Committee to explore this
issue. We've also regularly briefed the Congress about our plans. At this stage in the
decade there does not appear to be extensive concerns among the general public about our
approach to using administrative records in the Nonresponse' Operation or otherwise. We
will continue to monitor this issue.
34. Would Alternative C require any legislation? If so, what is tl:te estimated time frame for
approval of such legislation?

COM_DI S00020961

 No.
35. Census publications and old decennial surveys available on the Census website show that
citizenship questions were frequently asked of the entire population in the past.
Citizenship is also a question on the ACS. What was the justification provided for
citizenship questions on the (A) short form, (B) long form, and (C) ACS?
In 1940, the Census Bureau introduced the use of a short form to collect basic
characteristics from all respondents, and a long form to collect more detailed questions
from only a sample of respondents. Prior to 1940, census questions were asked of
everyone, though in some cases only for those with certain characteristics. For example, in
1870, a citizenship question was asked, but only for respondents who were male and over
the age of 21.
Since moving to the short form in 1940, we have never asked a question about citizenship
on the short form.
Beginning in 2005, all the long-form questions - including a question on citizenship -- were
moved to the ACS. 2010 was the first time we conducted a short-form only census. The
citizenship question is included in the ACS to fulfill the data requirements of the
Department of Justice, as well as many other agencies including the Equal Employment
Opportunities Commission, the Department of Health and Human Services, and the Social
Security Administration.

COM_D1S00020962

 CENSUS CITIZENSHIP QUESTION
BACKGROUND
•

NOT PUBLIC: In 2017, Secretary of Commerce Wilbur Ross requested that the Justice
Department send a letter requesting the addition of a citizenship question on the 2020
Census.

•

On December 12, 2017, the Justice Department-through A1i Gary, General Counsel,
Justice Management Division (JMD)-sent the requested letter to the U.S. Census Bureau
at the Department of Commerce. The letter "formally request[ ed] that the Census Bureau
reinstate on the 2020 Census questionnaire a question regarding citizenship, formerly
included in the so-called 'long form' census." The letter stated that citizenship data "is
critical to the Department's enforcement of Section 2 of the Voting Rights Act[.]" The
letter also noted that numerous federal courts of appeals "have held that, where citizenship
rates are at issue in a [Section 2] vote-dilution case, citizen voting-age population is the
proper metric for determining whether a racial group could constitute a majority in a singlemember district." Finally, the letter emphasized that every "long form" questionnaire from
1970 to 2000 included a citizenship question.

•

In early 2018, JMD erroneously disclosed in a FOIA response internal deliberative emails
between JMD and Civil Rights Division officials.

•

ProPublica subsequently ran a story that published the emails, including one email from
A11 Gary that stated the letter was sent "at the request of leadership, working with John
[Gore]."

•

There are now two pending lawsuits against the Census Bureau and the Commerce
Department-one in California, and the other in New York-in which plaintiffs have sued
to block the addition of the citizenship question to the 2020 Census.

EXPECTED QUESTIONS
•

The Department's letter, signed only by a career official, to the Census Bureau was plainly
disguised to be apolitical. But internal emails show that political appointees within the
Department drafted the letter and that the letter itself was sent "at the request ofleadership."
Who within the Department or outside the Department requested this letter?

•

Including a citizenship question on the 2020 Census will generate inaccurate data, depress
participation among immigrants and those who live in mixed-status households, and spread
fear among the most vulnerable individuals in our society. Isn't this request nothing more
than a partisan move designed to harm minorities and benefit Republicans?

RECOMMENDED RESPONSE
•

The Department is currently defending the Census Bureau in litigation on this issue
across the country. For this reason, it would not be appropriate for me to comment on the
issue.

PREPARED BY
COMPONENT: Civil Rights Division
POC & DIRECT LINE: Ben Aguinaga, i_ ______________P._~l____________ ___i

 From:

Aguinaga, Ben (CRT)
Tuesday, June 12, 2018 10:00 AM
Gore, John (CRT)
QFR responses
2020 Census Hearing Gore QFRs - CRT Draft.docx

Sent:
To:

Subject:
Attachments:

Boss:
Attached is a document with draft answers. OLA generally says that less is more and the draft takes that
approach. Both answers are taken almost verbatim from the transcript of your hearing. The second draft answer does
not directly address the question because the question asks whether this Department agrees with a 2010 OLC opinion
and whether any law compels the disclosure of confidential questionnaire responses. I don't think we want to say too
much there in case the issues addressed in the OLC opinion or related issues come up later for renewed debate. So, I've
just said that the Department will abide by all laws requiring confidentiality. Let me know if you have any
questions. Thanks.
Ben

J. Benjamin Aguinaga {AH-gheen-YAH-gah)
Chief of Staff and Counsel
Office of the Assistant Attorney General
Civil Rights Division
United States Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530

f

PII

i

t--·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·

 Responses to Questions for the Record
Mr. John M. Gore
Acting Assistant Attorney General
U.S. Department of Justice
Submitted June 11, 2018
Submitted by The Honorable Jimmy Gomez
Committee on Oversight and Government Reform
Administrative Records
On April 25, 2018, Attorney General Session testified in the Senate regarding the citizenship
question that people "don't have to answer it, really, I would think that's a very reasonable thing,
and I think concerns over it are overblown."

To Mr. Gore:
Is the Attorney General encouraging people not to respond to the Census, or is he saying
that their responses aren 't really that important since responses are really not required?
RESPONSE: It is possible that the Attorney General was referring to the fact that the
Census Bureau counts incomplete census questionnaires in the total enumeration. That
is, even if a person responding to a questionnaire does not answer a particular question,
the Census Bureau counts the questionnaire.
Census Confidentiality
On January 4, 2010, the Department of Justice issued a Memorandum Opinion for the
Department ofCommerce 1 that clarifies that no provision of the PATRIOT Act can compel the
Secretary of Commerce to disclose confidential census data.

To Mr. Gore:
Is the DOJ and Attorney General Sessions still in agreement with that opinion? Is there
any provision of any law that may compel Census to disclose confidential census data for
law enforcement or national security purposes?
RESPONSE: No one should have to fear responding to the census questionnaire or to a
citizenship question, if in fact it is included. To that end, the Department is committed to
abiding by all laws protecting the confidentiality and nondisclosure of such responses.

 EXHIBIT 

Page 1
1

UNITED STATES DISTRICT COURT

2

SOUTHERN DISTRICT OF NEW YORK

3

NEW YORK IMMIGRATION COALITION,

ET AL.,

4

Plaintiffs,
vs.

5
6

Case No.

1:18-CF-05025-JMF

UNITED STATES DEPARTMENT OF COMMERCE,

ET AL.,

Defendants.

7

8

Washington,

9

10
11

Wednesday,

D.C.
August 15,

2018

Deposition of:

12

DR.

JOHN ABOWD

13

called for oral examination by counsel for

14

Plaintiffs,

15

Arnold

16

Washington,

17

RPR,

18

beginning at 9:08 a.m.,

19

behalf of the respective parties:

&

CSR,

pursuant to notice,

Porter,
D.C.,

at the office of

601 Massachusetts Avenue NW,
before KAREN LYNN JORGENSON,

CCR of Capital Reporting Company,
when were present on

20
21
22
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request came from Comme r ce originally?

2

A

I have not.

3

Q

Had you asked anyone at Census -- have

4

you spoken to anyone at Census that these requests

5

came from Commerce essentially?

6

A

Ron,

Enrique and I briefly

7

discussed -- mentioned, whatever you want to call

8

it,

9

administrative record --

the existence of those emails in the

10

Q

And what was --

11

A

-- in subsequent discovery.

12

Q

And what did you say?

13

A

All of us were surprised.
MR.

14

15

off.

CASE:

Okay.

I'm going to hand this

Thank you.

16

Go off the record.

17

VIDEOGRAPHER:

18
19

20
21
22

The time is 5:12 p.m.

We're going off the record.
(Off the record.)
VIDEOGRAPHER:

The time is 5:26 p.m.

We're back on the record.
Please proceed,

Counsel .

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EXAMINATION BY MS.

1

2

Q

FIDLER:

Good afternoon, Dr. Abowd.

My name is

3

Danielle Fidler, and I'm an assistant attorney

4

general with the State of New York here with the

5

State of New York versus the United States

6

Department of Commerce, Docket

7

Number 1:18-CV-2921.
I wanted to follow up on the questions

8
9

about Question 31 that we were just discussing.

10

So we were discussing Question 31 and the

11

differences between your memo, which contained a

12

copy of the questions that,

13

Census had put together and a standalone version

14

that was part of the administrative record that

15

describes not needing to do any testing.

as you understood it,

Do you know who wrote the revision -- the

16

17

standalone revision, which as we understand it,

18

the later in time -- do you know who wrote that

19

version of Question 31 saying testing wasn't

20

necessary?

21

A

I do not.

22

Q

And does that version comport with your

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view and Census's view of 31 as you attached it to

2

your March 1st memo?

3

A

So I'm operating on the assumption that

4

the one with Bates number 9822 came from the

5

archival files that I supplied in cooperation with

6

the discovery requests.

7

have been the last one that I was responsible for

8

collecting content on.
Until today,

9

In which case,

this would

I was unaware of any

10

discrepancy between the one at 1286 and this one.

11

So it's hard for me to address the providence of

12

changes without returning to my own files to see

13

if those changes originated in the Census Bureau.

14

As I said, as far as I know,

15

Bates number I cited first is the last version I

16

worked on.

17

Q

Sitting here today,

the one with the

is it your view that

18

the version you're just seeing today, would you

19

agree with that or do you think that it reflects

20

the Census Bureau's position today?

21
22

MR. GARDNER:

Objection.

Calls for

speculation.

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 EXHIBIT 

Page 1
1

UNITED STATES DISTRICT COURT

2

SOUTHERN DISTRICT OF NEW YORK

3

NEW YORK IMMIGRATION COALITION,

ET AL.,

4

Plaintiffs,
vs.

5
6

Case No.

1:18-CF-05025-JMF

UNITED STATES DEPARTMENT OF COMMERCE,

ET AL.,

Defendants.

7

8

Washington,

9

10
11

Monday,

D.C.

August 20,

2018

Deposition of:

12

DR.

RON JARMIN

13

called for oral examination by counsel for

14

Plaintiffs,

15

Arnold

16

Washington,

17

RPR,

18

beginning at 9:03 a.m.,

19

behalf of the respective parties:

20

&

CSR,

pursuant to notice,

Porter,

at the office of

601 Massachusetts Avenue NW,

D.C.,

before KAREN LYNN JORGENSON,

CCR of Capital Reporting Company,
when were present on

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1250 Eye Street NW - Suite 350

21

Washington,

D.C.

20005

22
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systems,

2

center,

3

the field,

4

Q

5

how

the telephone questionnaire assistance
the iPhones that enumerators use out in
all of that.

Uh-huh.

Does the Census Bureau test

the order of questions?

6

A

Yes.

7

Q

Where?

8

A

So like the National Content Test might

9

10

be a place --

Q

A

I

don't

Does the end-to-end test test the order

No.

The end-to-end test doesn't have any

test about the questions, at all.

15

16

don't think they did --

of questions?

13

14

I

Which of these tests?

think they did in that particular instance, so.

11
12

What?

Q

There's no response rates for the

end-to-end test?

17

A

We track the response rates, but we're
It's

it's not a life measurement exercise.

18

not

19

really more of a testing systems exercise.

20

tracking response rates while we're live in the

21

field is something we do in 2020,

22

during the end-to-end test,

So

so we do that

as well.

For

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operational reasons, not for --

2

Q

3

A

4

Q

So if -not for quality assessment reasons.
If the citizenship question had been on

5

the 2018 end-to-end test, would that provide data

6

as to the response rates for the citizenship

7

question?
MS. BAILEY:

8

9

Objection.

Calls for

speculation.

10

We would have had

THE WITNESS:

we could have gained some insight into the

11

some

12

item nonresponse rates for that question.

13

BY MS. GOLDSTEIN:

14

Q

And would you have also gained insight

15

into effects on total response rate if this

16

citizenship question was on the test questionnaire

17

for the 2018 end-to-end test?

18
19

20

MS. BAILEY:

Objection.

Calls for

speculation.
THE WITNESS:

That would have to have

21

been a test objective,

and we would have to set up

22

an experiment to do that.

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BY MS.

2

GOLDSTEIN:
How would you -- how could you do that?

Q

MS.

3
4

speculation.

5

BY MS.

Objection.

Calls for

GOLDSTEIN:
How could you set up a test objective

Q

6

BAILEY:

7

that would test response rates with the inclusion

8

of a citizenship question?
MS.

9

BAILEY:

THE WITNESS:

10

11

experiment.

12

BY MS.

Same objection.
Some sort of randomized

GOLDSTEIN:

13

Q

What would that be?

14

A

I can't tell you exactly what that would

15

be.

16

that.

17

Q

18

We'd have to have some methodologist work on

But that's the kind of thing the

Census Bureau is equipped to do?

19

A

Yes.

20

Q

And it did not happen with the

21
22

citizenship question,
A

correct?

No.

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A

No.

2

Q

And does it say that in order to be

3

included, proposals must demonstrate a clear

4

statutory and regulatory need for data?

5
6

A

It does say legal and regulatory

requirements are filled.

7

Q

Does it mention testing,

8

A

No.

9

Q

Does it mention public comment?

10

A

No.

11

Q

Does it mention - -

12

A

No - -

13

stakeholders.

at all?

I don't - - it says all relevant
That includes public comment.
Does it mention 0MB specifically?

14

Q

Okay.

15

A

It says relevant stakeholders,

16

so, you

know --

17

Q

Does it mention 0MB specifically?

18

A

No.

19

Q

Okay.

20

It does not.
Do you know who wrote the language

in Number 31?

21

A

I do not.

22

Q

When was the first time you saw the

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Q

Some are on paper?

2

A

Yes.

3

Q

Some are in person?

4

A

Well,

5

Q

Okay.

6

A

7

Q

most surveys are multimode - -

any more,

so.

Is it fair to conclude that a question is

8

going to perform the same way on one survey that

9

it might on a different survey?
MS.

10
11

THE WITNESS:

Q

Why not?

15

A

Well,

It isn't necessarily.

the -- you know,

Q

What else matters?

18

A

The -- you know,

20

the modes will

matter.

17

19

Calls for

BY MS. GOLDSTEIN:

14

16

Objection.

speculation.

12

13

BAILEY:

the length and

complexity of the survey.
What other sorts of things can cause a

Q

21

question to perform different ways on different

22

surveys?

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A

You know, we talked earlier about, you

2

know,

3

stuff like that.

4

as, you know,

5

of the government that they have bigger issues

6

with,

7

know -- so Census Bureau does pretty well with the

8

surveys because the public generally tends to

9

trust the Census Bureau,

10

Q

changing attitudes about the government and
So if one survey is seen as

coming from the government or a part

it may perform differently than, you

so.

But even within the same survey,

can a

11

changing political climate impact how a question

12

performs?
MS. BAILEY:

13
14

Objection.

Calls for

speculation.
THE WITNESS:

15

Again,

it might.

There's

16

been no analysis to say that, one way or the

17

other.

18

BY MS. GOLDSTEIN:

19

Q

And that's my next question.

Has the

20

Census Bureau performed any analysis as to whether

21

or not the citizenship question will perform the

22

same way on the short form as it has on the ACS?

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1

2
3

No.

A

We don't -- but I'll come back to

say we don't have a good way of doing that.
Would the National

Q

if the citizenship

4

question had been included in the

5

National Content Test

6

A

So that -- go ahead.

7

Q

I'm sorry.
If the citizenship question had been

8

9

included in the National Content Test, would that

10

have given the Census Bureau any information as to

11

response rates?

12

MS. BAILEY:

13

THE WITNESS:

Objection.

Hypothetical.

Most likely not.

So you

14

have to remember that the context of the decennial

15

census is done as a nationwide activity with a

16

huge advertising outreach and partnership campaign

17

that you're never going to replicate in a small

18

scale test.

19

the ACS.

20

political environment is something that might

21

impact response rates to a particular question,

22

you need to mimic the political environment that

You're not going to replicate it on

To the degree that you think the

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1

will exist when they're doing it.

And the -- you

2

know,

3

get during the live census is, you know, part of

4

that environment, and we just can't test that.

5

the only thing we can test right now is whether

6

people understand the question,

7

can answer it, and whether they answer it at a

8

rate sufficient to provide high-quality data.

9

answer to those questions is all in the

the amount of exposure that the census will

10

affirmative.

11

BY MS. GOLDSTEIN:

and whether they

12

Q

In the context of the ACS,

13

A

In the context of the ACS.

Or in the

context of

15

wouldn't have learned anything in addition to

16

that,
Q

The

correct?

14

17

So

of that 2018 end-to-end test.

We

so.
The -- if the citizenship question had

18

been included in the 2018 end-to-end test, would

19

you have gotten item nonresponse rate data?

20
21
22

MS. BAILEY:

Objection.

Calls for

speculation.
THE WITNESS:

Yes.

We would have gotten

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item nonresponse rate data.

2

have -- it would not have answered the question of

3

what things would look like during the 2020

4

census, no more than the ACS does.

5

BY MS. GOLDSTEIN:

It would not

6

Q

Why do you say that?

7

A

Because they're both done outside of that

8
9

10
11

context.
Q

So the race and ethnicity proposed

changes were tested,
A

correct?

They were tested to see if people

12

understood and could answer the question and what

13

the relative data quality of the different

14

questions was.

15

different questions.

The experiment was against the

16

Q

Is it possible to test a survey -- so --

17

A

We could have tested two versions of a

18

citizenship question --

19

Q

And the census --

20

A

- - that might have been informative, but

21

not whether a, you know,

citizenship question

22

versus no citizenship question.

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A

Uh-huh.

2

Q

I'm sorry?

3

A

Yes.

4

Q

And if we look at F, explore nonfederal

5

surveys for research on the impact of citizenship

6

questions on survey response rates,

7

the Census Bureau has done that?

8

A

I

9

Q

And,

10

do know you if

-- I don't know.
again, would Ms. Battle be the

person who knows this?

11

A

Yes.

12

Q

Anyone else?

13

A

Well, members of her team.

14

Q

Sure.

And what would nonfederal surveys

15

for research on the impact of citizenship

16

questions on survey response rates tell us?

17
18
19

A

Same thing that E would,

what other

people have experienced.
Q

And let's look at G,

conduct a

20

National Content Test with a split sample where

21

half the respondents received the citizenship

22

question and half do not.

Comparing the response

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rates across the two groups would be the primary

2

way to test the impact of the citizenship question

3

on survey response rates.
Has this sort of test been run for the

4
5

citizenship question?

6

A

It has not,

as far as I know.

7

Q

And do you agree that this methodology

8

set forth in Subparagraph G would be a way to test

9

the impact of the citizenship question on survey

10

response rates?

11

MS. BAILEY:

12

THE WITNESS:

13
14
15

Objection.

Form.

It -- yes.

It could be.

BY MS. GOLDSTEIN:
Do you know of any plans to test the

Q

citizenship question in this form?

16

A

No,

I do not.

17

Q

I'll take that back.

Thank you.

Part of your job, Dr. Jarmin,

18

is to

19

appoint people to advisory committees; is that

20

correct?

21

A

Yes.

22

Q

And what is the role of advisory

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I'd like to follow up on something you

1
2

said earlier.

I believe your testimony was that

3

it's difficult to simulate the decennial census

4

because it's unique.

5

characterization?

6

A

Correct.

7

Q

Okay.

But,

Is that a fair

in fact,

that the

8

Census Bureau does the multiyear testing program

9

to prepare for the census;

is that correct?

10

A

That's correct.

11

Q

Do you know when that testing process

12

started?

13

A

2013.

14

Q

So seven years in advance of the

15

decennial census, correct?

16

A

Correct.

17

Q

And from that testing,

the Census Bureau

18

determines -- obtains various pieces of

19

information that are useful for development of the

20

2020 census?

21

A

Correct.

22

Q

For example, self-response rates?

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A

That's one thing that --

2

Q

Okay.

3

A

So a testing self-response rate is not

4

that indicative of a census self-response rate

5

because of the lack of advertising and --

6

But,

Q

in fact,

you do do tests to

7

determine self-response rates in preparation for

8

the decennial census?

9

I don't think we did any tests whose

A

10

purpose it was to determine what the self-response

11

rate was.

12

Q

Do you also use these tests to determine

13

or to obtain information about nonresponse

14

follow-up procedures?

15

A

About procedures, yes.

16

Q

And about the use of administrative

17

records?

18

A

And about -- yes.

19

Q

And about the use of data capture systems

20

or the functionality of the those systems?

21

A

Correct.

22

Q

How about for language support

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systems

2

(Conference call interruption.)

3

THE WITNESS:

Okay.

4

say the question again.

5

BY MR. TILAK:

6
7

Q

Please

And how about language support systems or

translations services?

8

MS. BAILEY:

9

THE WITNESS:

Objection.

done with language, yes.

11

BY MR. TILAK:
Q

So in short,

Vague.

So there was some stuff

10

12

All right.

this multiyear testing

13

program does provide meaningful information that

14

the Census Bureau uses to prepare for the 2020

15

census?

16

A

Yes.

17

Q

Did you do any tests where the sole

18

purpose was not self-response rates but one of the

19

items that was looked at was self-response rates?

20

MS. BAILEY:

21

THE WITNESS:

22

Objection.

Form.

So we always look at the

self-response rate as a matter of course.

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A

He did not.

2

Q

Grandparents as caregivers?

3

A

We don't -- weren't discussing that,

4
5

though.
Q

Has he ever -- has anyone from Commerce

6

ever expressed concern about imputed data for

7

items on the ACS that weren't on the short form?

8

MS.

9

THE WITNESS:

10
11

BY MR.
Q

BAILEY:

Objection.

Foundation.

No.

CASE:
In either of the meetings that you had

12

where Secretary Ross was present,

did he say that

13

he had been interested in the question before the

14

DOJ letter?

15

A

He did not.

16

Q

Did he say that the Census Department had

17

reached out to DOJ to create that letter?
MS.

18
19

BAILEY:

Objection.

Assumes facts

not in evidence.
THE WITNESS:

20
21

had reached out

22

BY MR.

That the Census Department

CASE:

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Q

The Commerce Department.

2

A

No.

3

Q

Do you remember the 35 questions you were

4

Sorry.

He did not.

asked about this morning?

5

A

Uh-huh.

6

(Plaintiffs' Exhibit 38, Email, was

7

marked.)

8

BY MR. CASE:

9

Q

I'm going to show you Number 38, if I

10

may.

This is an email Bates stamp 9190.

11

recall this email?

Do you

12

A

Not off the top of my head, no.

13

Q

I'm -- who is Sahra or Sahra Park-Su?

14

A

So she's -- works at the Department.

15

Q

And did you have communications with

16
17
18
19
20

Ms. Park-Su regarding the 35 questions?
A

I imagine she would have been in the

chain on this, yeah.
Q

And does this question at the bottom of

the email look familiar?

21

A

Yeah.

22

Q

What is it?

Veritext Legal Solutions
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 EXHIBIT 

Page 1
1

UNITED STATES DISTRICT COURT

2

SOUTHERN DISTRICT OF NEW YORK

3

NEW YORK IMMIGRATION COALITION,

ET AL.,

4

Plaintiffs,
vs.

5

6

Case No.

l:18-CF-05025-JMF

UNITED STATES DEPARTMENT OF COMMERCE,

ET AL.,

Defendants.

7

8

Washington,

9

10
11

Tuesday,

D.C.

August 28,

2018

Deposition of:

12

KAREN DUNN KELLEY

13

called for oral examination by counsel for

14

Plaintiffs,

15

Arnold

16

Washington,

17

RPR,

18

beginning at 9:04 a.m.,

19

behalf of the respective parties:

20

&

CSR,

pursuant to notice,

Porter,

at the office of

601 Massachusetts Avenue NW,

D.C.,

before KAREN LYNN JORGENSON,

CCR of Capital Reporting Company,
when were present on

Veritext Legal Solutions
Mid-Atlantic Region
1250 Eye Street NW - Suite 350

21

Washington,

D.C.

20005

22
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 Page•128
1

A

Who are you speaking to, , sir?

2

Q

Well,

3

A

Not that I recall.

4

Q

What about Mr. Comstock?

5

A

Not -- he could have.

let me ask,

first,

Secretary Ross?

Could not have.

I

6

can't -- what I have said is that I knew the

7

conversations were going on about the citizenship

8

question.

9

who it was, when it was.

If somebody briefed me,

I don't know

It was not on the top of

10

my radar.

11

at some point would need to possibly be addressed

12

from the -- again,

13

the budgetary work,

14

work, as well as the leadership work.

15

Q

It was a back-burner issue that I knew

the work I was doing, which was
the operational/technical

Were you surprised when the letter came

16

over in December 2017,

17

the blue?

18

A

that it was sort of out of

As we got closer to the letter coming,

19

there was a discussion that we thought we were

20

going to get a letter, and then a letter came,

21

and

22

Q

Okay.

Who -- who had that discussion

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2

Q

Let me just review a couple things to see

if it refreshes your recollection.
You knew the Secretary was interested in

3
4

reviewing -- adding a citizenship question at

5

least by the summer of 2017,
MR.

6

7

GARDNER:

Did you say summer or

December?

8

MR. GROSSI:

9

MR. GARDNER:

Summer.

10

THE WITNESS:

Oh,

11

Summer.
Objection.

summer.

I

thought you

said December.

12

MR.

GARDNER:

13

You're saying summer?

14

witness's testimony.

15

BY MR. GROSSI:

16

correct?

Q

I

thought you did,

too.

Mischaracterizes the

We talked earlier that by the summertime,

17

you knew that the Secretary was interested in

18

adding a question to the census or at least

19

considering that,

20
21
22

MR.

right?

GARDNER:

Objection.

Mischaracterizes the witness's testimony.
THE WITNESS:

I have said that he was

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interested in considering the question.

2

That -- that's two very different things that you

3

said,

4

BY MR.
Q

5

6

so thank you for clarifying.
GROSSI:
Okay.

He was,

question as of the summer,

7

A

Yeah.

8

Q

And you know,

9

at least,

August,

September,

now,

October,

considering the

correct?

certainly,
November,

10

Mr.

11

Department of Justice to request that,
MR. GARDNER:

13

foundation.

14

BY MR.
Q

You know that for a fact?

THE WITNESS:

19

telling me.

20

BY MR.

22

Lack of

Objection.

Lack of

foundation.

18

21

Objection.

correct?

GROSSI:

MR. GARDNER:

16
17

he and

Comstock attempted to get the

12

15

that in

Q

That's what you've been

I'm not

GROSSI:
You have no knowledge of whether they

were requesting --

Veritext Legal Solutions
215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830

 EXHIBIT 

Page 1
1

UNITED STATES DISTRICT COURT

2

SOUTHERN DISTRICT OF NEW YORK

3

NEW YORK IMMIGRATION COALITION,

ET AL.,

4

Plaintiffs,
vs.

5

6

Case No.

l:18-CF-05025-JMF

UNITED STATES DEPARTMENT OF COMMERCE,

ET AL.,

Defendants.

7

8

Washington,

9

Wednesday,

10
11

D.C.
August 29,

2018

Deposition of:

12

DR.

JOHN ABOWD

13

called for oral examination by counsel for

14

Plaintiffs,

15

Arnold

16

Washington,

17

RPR,

18

beginning at 9:06 a.m.,

19

behalf of the respective parties:

20

&

CSR,

pursuant to notice,

Porter,

at the office of

601 Massachusetts Avenue NW,

D.C.,

before KAREN LYNN JORGENSON,

CCR of Capital Reporting Company,
when were present on

Veritext Legal Solutions
Mid-Atlantic Region
1250 Eye Street NW - Suite 350

21

Washington,

D.C.

20005

22
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 Page 24
1

testing has not been conducted without a nativity

2

question preceding the citizenship question.

3

BY MR.

4

HO:

So you're not aware of any testing -- any

Q

5

cognitive testing of the citizenship question

6

without a preceding question about nativity;

7

that right,

8
9

10

Dr.

I'm not aware of -- sorry.

A

of any,

is

I'm not aware

no.
Are you aware of any prior census in

Q

11

which cognitive testing of the full short form

12

questionnaire had not been conducted before using

13

that questionnaire for the actual census?

14

15

I am not aware of any -- well,

A

let me be

careful.
Many censuses were conducted without

16
17

cognitive testing,

the equivalence of cognitive

18

testing existed for much of the 20th century.

19

preparing for this deposition,

20

generic answer to the question,

21

tested,

22

some cognitive testing,

and in some cases,

In

I reviewed the
how was this

that question elicited

for example,

the

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field period.

2

BY MR. HO:

3

Q

Thank you.

And this would have been the

4

only testing of the 2020 decennial questionnaire

5

with a citizenship question in it, correct?

6

This is the only field testing with and

A

7

without citizenship question, directly analyzing

8

the citizenship question that we have considered

9

at the Census Bureau.

10

I also verified that the 2010 census

11

questionnaire had full cognitive and field

12

testing.

13

citizenship question had -- so I asked him the

14

same way you asked me, was adequately,

15

tested; yes.

16
17
18

That the 2020 questionnaire without the

cognitively

Who did you ask whether or

Q

I'm sorry.

A

I asked my staff -- the same group that I

not?

19

had been asking generally about the testing,

I

20

specifically asked about the cognitive testing for

21

the 2020 questionnaire, with and without the

22

citizenship question,

and their answer was that it

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was adequately tested with the citizen- -- without

2

the citizenship question,

3

tested with the citizenship question,

4

testing.

5

Q

Thank you.

6

A

Okay.
And,

7

thirdly,

8

the third panel,

9

confirmed,

but not adequately

in this table,

cognitive

Exhibit 12,

the CAPI response rate,

I

so I can now say the way the tract was

10

put into deciles was based on the five-year

11

American Community Survey for the middle five

12

years of the table,

13

the CAPI response rate is just the CAPI response

14

rate in the nonresponse follow-up system,
I

15

so 2011 through 2015.

That

okay.

think those were all the things we had

16

unresolved.

If you think there were others -- we

17

went over our notes, but I think I've answered the

18

questions that that were unresolved.
MR. HO:

19

I don't have any others right

20

now,

so I'm going to pass you along to one of the

21

other lawyers for one of the other plaintiff

22

groups,

subject,

of course,

to the issue that I've

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A

Yes.

2

Q

Now,

for -- have any of the tests to date

3

in the 2020 census testing program,

4

them included a citizenship question?

5

A

No.

6

Q

And so none of these tests,

have any of

to the extent

7

that they were used to project staffing levels or

8

to refine the projections,

9

for the citizenship question?

would have accounted

10

A

Directly,

no.

11

Q

Would they have done S? indirectly?

12

A

Well,

we used -- we didn't use evidence

13

from a test,

14

evidence generated in the test to make indirect

15

inferences.

16
17

Q

but we used evidence similar to the

But directly,

no.

What was -- what were the sources you

used for the indirect inferences?

18

A

19

described

20

described in my fact witness testimony.

the natural experiments that I

Do you want to go through them again?

21
22

These are the experiments that I

Q

Are those the ones discussed in your

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2
3
4
5

6

January 19th memo?
The ones that existed at that point in

A

time are discussed in the memo,
And since then,

Q

yes.

are there any other ones

that have been done?
There are more extensive ones that have

A

7

been done in the full version of the technical

8

paper that was developed after the memo was

9

written.

10

11

Q

Is that the document that was just

produced to us yesterday?

12

A

Yes.

13

Q

And besides those two sources,

14

are there

any other -- let me rephrase.
Besides the sources discussed in those

15

16

two documents,

17

you used to develop indirect inferences?

18

A

are there any other sources that

They haven't been used yet,

but we intend

19

to examine the field operation data from the

20

end-to-end test,

21

information about the citizenship question was

22

becoming public.

because it occurred as the

It's not clear how useful it

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would be, but that would be another form of

2

indirect inference.

3

question, but there were environmental factors

4

that intervene.

5
6
7

Besides that, are there any other

Q

sources?
None that I'm aware of.

A

Sorry.

8
9

There was no citizenship

From our test operations.

And so to the extent that any tests

Q

10

conducted to date have been used to project the

11

number of offices that the Census Bureau will open

12

in 2020,

13

accounted from the citizenship question,

those projections would not have
correct?

14

A

In general,

that's correct, yes.

15

Q

And to the extent the tests were used to

16

test the adequacy or amount of enumerator

17

training,

18

citizenship question, correct?

they would not have accounted for the

19

A

That's correct.

20

Q

And the same question with respect to the
To the extent that

21

testing of NRFU protocols.

22

testing has been used to test the adequacy of

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those protocols, they would not have accounted for

2

the citizenship question, correct?

3

A

That's correct.

4

Q

And the same question with respect to the

5

census questionnaire assistance.

To the extent

6

the testing was used to develop a projection about

7

call loads for peak operations,

8

would not account for the citizenship question,

9

correct?

those projections

10

A

That's correct.

11

Q

In iight of the Secretary's decision to

12

add the citizenship question, will the

13

Census Bureau conduct any testing on the impact of

14

that question on staffing levels?

15

MR. EHRLICH:

Objection.

Form.

16

THE WITNESS:

It's hard to imagine what

17

kind of testing we might do,

18

relatively small scale.

19

closely with the integrated communication

20

campaign, which the Secretary has recommended

21

increasing the budget to 500 million.

22

developing messaging and other tools that we fully

other than on a

However, we are working

They are

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citizenship question may make modifications.

2

Those modifications will have to be made

3

relatively soon.

4

start with address canvass and address canvases

5

start next summer.

6

time.

7

materials and the final onboarding of those

8

activities hasn't happened.

9

scope to make modifications, and we are intending

The field operations actually

So we don't have a lot of

But the final forms of the training

So we do have the

10

to analyze the data from the end-to-end test and

11

other data as they became available to us in order

12

to optimize that.

13
14

Q

citizenship,

15

A

16

form.

17

And the end-to - end didn't test

Q

right?

There was no citizenship question on the

And these additional data you mentioned

18

with respect to citizenship,

19

small scale tests that the Census might do,

20

A

those are possible
right?

What I said was that the focus groups

21

from CBAMS were small scale tests and the in place

22

testing of instruments would necessarily be small

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2

when we evaluate it whether we were successful.
Q

Do you agree that adding the citizenship

3

question will make it more difficult to achieve

4

that goal of reducing undercount for hard-to-count

5

populations?

6

MR.

EHRLICH:

7

THE WITNESS:

Objection.

Form.

It will make it more

8

difficult to correct -- to collect accurate data

9

on the enumeration, which will complicate the

10

assessment of net undercount, because the

11

indicators,

12

be as accurate as they are if you get more

13

self-responses.

the right-hand side variables, won't

14

MR. TALIK:

15

VIDEOGRAPHER:

16

record.

We can go off record.
We're going off the

The time on the video is 4:19 p.m.

17

(Off the record.)

18

VIDEOGRAPHER:

19

The time on the video is 4:20 p.m.
EXAMINATION BY MR. ADAMS:

20
21
22

We're back on the record.

Q

Good afternoon, Dr. Abowd.

Rory Adams.

My name is

I represent the City of San Jose and

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 EXHIBIT 

Page 1
1

UNITED STATES DISTRICT COURT

2

SOUTHERN DISTRICT OF NEW YORK

3

NEW YORK IMMIGRATION COALITION,

ET AL.,

4

Plaintiffs,
vs.

5

6

Case No.

l:18-CF-05025-JMF

UNITED STATES DEPARTMENT OF COMMERCE,

ET AL.,

Defendants.

7

8

Washington,

9

10
11

Thursday,

D.C.

August 30,

2018

Deposition of:

12

EARL COMSTOCK

13

called for oral examination by counsel for

14

Plaintiffs,

15

Arnold

16

Washington,

17

RPR,

18

beginning at 9:08 a.m.,

19

behalf of the respective parties:

&

CSR,

pursuant to notice,

Porter,
D.C.,

at the office of

601 Massachusetts Avenue NW,
before KAREN LYNN JORGENSON,

CCR of Capital Reporting Company,
when were present on

20
21
22
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we don't ask the question.

2

Q

And you testified earlier that the

3

Secretary is the first person who raised it to

4

you?
In my employment at the Department of

5

A

6

Commerce,

7

Q

8

9

yes.

Do you recall discussing it before you

worked at the Commerce Department?
A

Probably sometime in the last 30-odd

10

years,

11

and politics,

12

Q

I'm in

you know,

in political science

so I'm sure I discussed at.

But the first time in 2017 that you

13

recall considering this issue is when the

14

Secretary raised it with you?

15

A

Correct.

16

Q

And this memo says the Secretary began

17

considering it soon after his appointment?

18

A

Correct.

19

Q

And his appointment was February 28th

20

we've established --

21

A

That's correct.

22

Q

--

of 2017?

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2

a citizenship question could be warranted?
A

Again,

my formulation of a -- of a

3

decision that it could be warranted is largely

4

based on common sense.

5

Q

Okay.

I

just want to make sure that I

6

understand.

7

that related to the practices of other countries,

8

in the spring of 2017,

9

Googling it?

10

A

That as to the part of your answer

you formed that view by

I may have asked if other countries did

11

it or I may have gotten online and looked.

12

don't recall.

I

13

Q

Who would you have asked if you asked?

14

A

I

15
16

17
18

likely would have asked somebody from

Census or I might have asked David Langdon.
Q

And if you asked,

in your email or your memo somewhere?

in your
A

If it was,

email.

20

I asked that question.

22

Q

So I '

you could have found the

19

21

would that be reflected

Okay.
MR.

obviously,

did not send an email if

The --

GARDNER:

Matt,

I'm sorry.

I didn't

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A

That part of the process, yes.

2

Q

And that email says we need to work with

3

Justice to get them to request that citizenship be

4

added back as a census question;

is that right?

5

A

That's right.

6

Q

Why would you say you needed to work with

7

the Justice Department to get them to request that

8

citizenship be added back?

9

A

Because based on a very preliminary

10

review,

they appeared to be the most likely

11

government body that would have a specific need

12

for the information that would support adding a

13

citizenship question to the decennial census.

14

Q

Who conducted that preliminary review?

15

A

We were told by the Census Bureau that

16

the Justice Department was the person that had

17

requested the citizenship question on the ACS and

18

that they utilized the ACS data for Voting Rights

19

Act information.

20

Q

Who in the Census Bureau told you that?

21

A

I couldn't tell you.

22

Q

And why did you need a request from

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2

Justice?
A

Again, based on the preliminary review,

3

the understanding we had was questions are added,

4

based on requests from a government agency.

5

is such a thing as the Paperwork Reduction Act

6

where you have to justify to 0MB why do I need

7

this information?

8

there are certain hurdles you have to get through.

9

So if at the end of the day the Secretary decided

That has to get cleared.

There

So

10

to pursue this question, we would need to clear

11

certain legal thresholds.

12

Q

Why not just tell the Census Bureau to

13

add the citizenship question and say the Secretary

14

wanted it?

15

A

Because I'm not sure that that would be

16

the process they would necessarily agree to

17

follow.

18
19
20
21

22

Q

So you had to have it come from DOJ in

order for the Census Bureau to agree to follow it?
A

Again,

that was a preliminary conclusion

based on a cursory analysis.
Q

Your email then says,

"We have the court

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there's -- what their explanation would be, but

2

they were obviously not our first choice.
So you were looking for an agency to make

3

Q

4

this ask?

5

A

Again, my understanding of the process,

6

based on the research I've been able to do,

and

7

consequently was advising the Secretary was an

8

agency needed to make the request; therefore, you

9

have to find an agency that would have a reason to

10

be using this information.

11

obviously, was the primary recipient of the CVAP

12

data from the ACS,

13

to start.

14

Homeland Security, and I say, okay, maybe there's

15

something about Homeland Security that I don't

16

know about that might justify this data.

17

follow up on a call, get more information,

18

your decision, you might change it.

19
20
21
22

Q

And Justice,

so they were the logical place

Justice then says go to

And so my question was:

So you
informs

So you were

looking for an agency to make this ask and -A

Correct.

In order to implement the

process that had been outlined to us, you needed

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was that?

2

A

A call from the Secretary to talk to the

3

Attorney General about whether or not Justice

4

would be interested in a citizenship question.

5

Q

And why was the Secretary talking to the

6

Attorney General about whether or not Justice

7

would be interested in the citizenship question?
A

8

9

Again,

if -- if the -- if the

Justice Department was not going to request the

10

question,

had no use for the information,

11

that would probably put an end to the citizenship

12

question.

13

Q

14

question?

15

A

And the Secretary wanted the citizenship

I

think he felt

16

what he felt.

17

that possibility.
MS.

18

19

then

Yes.

BOUTIN:

-- well,

I don't know

He was continuing to explore

I'm sorry.

Can you speak

up?
THE WITNESS:

20

I don't know what he felt,

21

but he was continuing to explore the possibility.

22

BY MR.

COLANGELO:

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2

Q

you

through 5, okay.
A

All right.

Let me read the context of

which Lines 2 through 5 appear.
Q

7
8

Isn't what I want --

Let me direct your attention to Lines 2

5
6

And this is where she asks

withdraw this.

3

4

All right.

Let me ask your question and then you can

read whatever you need.

9

A

All right.

10

Q

On Lines 2 through 5, Ms. Norton asked

Very good.

11

you,

"My question to the two of you" -- and you

12

were there with Mr. Jarmin;

13

A

Correct.

14

Q

She says,

is that right?

"My question to the two of you

Why did this question, which was dropped for

15

is:

16

70 years,

17

What was the point?"

suddenly appear on the decennial census?

And then you answered,

18

Congresswoman,

"Thank you very

for the question.

We

19

much,

20

received a request from the Department of Justice

21

for this,

22

of the information that they needed to enforce the

and their rationale was that the level

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Voting Rights Act was not available."
That's the testimony you gave, correct?

2
3

A

Again, this is not the official

4

transcript, but presuming your person transcribed

5

this correctly,

that appears to be what I said.

And this squares with your memory of what

6

Q

7

you said,

8

A

Correct.

9

Q

And when she says, why did this question

right?

10

get added, and you say, we received a request from

11

the Department of Justice,

12

truth;

that's not the whole

is it?

13

A

That's a -- that's a factual statement.

14

Q

It's a factual statement that you

15

received a request from Department of Justice,

16

right?

17

A

Correct.

18

Q

But the reason the Department of Justice

19

made the request is because you guys at the

20

Department of Commerce put them up to it;

21

that right?

22

A

isn't

I don't agree with that characterization.

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A

Okay.

2

Q

Didn't you say to the

3

Department of Justice when you were talking to

4

them,

5

it if you would ask us to include a citizenship

6

question?

7

A

I never made such a request.

8

Q

And I

9

in words or substance, we would appreciate

testimony,

take it,

based on your prior

you don't know what conversation

10

occurred between the Secretary and the Attorney

11

General?

12

A

That's correct.

13

Q

Did you understand that Ms. Teramoto was

14

on that call between the Secretary and the

15

Attorney General?

16

A

I don't know who was on the call.

17

Q

In any case,

however we word it, you

18

didn't tell Representative Norton when she asked

19

why is this question being added,

20

gone to the Department of Justice and suggested

21

that this might be something they'd be interested

22

in?

that you had

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A

That's correct.

2

Q

Why is that?

3

A

Again, because until the department makes

4

its independent decision to request this

5

information,

6

that was going to be added.

7

Q

that was the -- there was no question

When Representative Norton says, why is

8

the question being added?

Don't you think it's

9

relevant that the Secretary of Commerce wanted

10

this question added independent of the

11

Department of Justice's request?
Form.

12

MR. GARDNER:

Objection.

13

THE WITNESS:

Again, now

14

MR. GARDNER:

What's your - - withdrawn.

15

MR. GERSCH:

16

MR. GARDNER:

What's your objection?
I didn't understand that

question.

18

sorry -- Representatives Norton Holmes question

19

that the Secretary had requested DOJ to ask?

20

didn't even

21

22

Is it relevant to Secretary

or I'm

17

MR. GERSCH:

I got it.

BY MR. GERSCH:

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I

 Page 411
1

would be more appropriately handled by the

2

Department of Justice, you said that the

3

interaction ceased;

is that correct?

4

A

Well

5

Q

From you?

6

A

My efforts at that point to track down

7

somebody ceased because they had run into a dead

8

end.

9

Department of Justice was the right place to go.

I mean,

our initial conclusion was that

10

They seemed occupied on other·matters,

11

referred us to DHS.

12

I'm back to where I started.

13

Q

so they

DHS referred us back,

so now

So once you were referred back to DOJ,

14

you didn't ask another follow-up as to who in the

15

voting section would be more appropriate to talk

16

about this particular issue?

17

A

Again,

I was working on literally dozens

18

of issues that consumed a lot of time.

19

had put the time into it that I could afford to

20

put into it and had come up empty.

21

that to my boss,

22

some instruction from higher up,

and basically,

And so I

So I reported

said if absent
it appears that

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  EXHIBIT 

Dr. John M. Abowd , Ph.D.

Page 1
UNITED STATES DISTRICT COURT

1

SOUTHERN DISTRICT OF NEW YORK
2
-x
3

NEW YORK IMMIGRATION
COALITION, et al.,

4

Plaintiffs,
Case No.

5
V.

1:18-CF-05025-JMF

6

UNITED STATES DEPARTMENT
7

OF COMMERCE, et al.,
Defendants.

8

- - - - - - - - - - - - - - -x

Friday, October 12,2018

9

Washington, D.C.
10
11

12

Videotaped Deposition of:

13

JOHN

M. ABOWD, Ph.D.,

14

called for oral examination by counsel for the

15

Plaintiffs, pursuant to notice, at the law offices of

16

Arnold

17

Avenue, Northwest, Washington, D.C. 20001-3743,

18

before Christina S. Hotsko, RPR, CRR, of Veritext

19

Legal Solutions, a Notary Public in and for the

20

District of Columbia, beginning at 9:06 a.m., when

21

were present on behalf of the respective parties:

&

Porter Kaye Scholer, LLP, 601 Massachusetts

22
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 Dr. John M. Abowd , Ph.D.

Page 288
1

increase the net undercount or increase

2

differential net undercounts for identifiable

3

subpopulations?

4

MS. WELLS:

5

THE WITNESS:

Object to the form.
Because we believe the

6

qualitative analysis that we've already produced

7

is sufficient to justify our recommendation not to

8

ask the question.

9

BY MR.

10

Q.

FREEDMAN:
Has anybody within the Census Bureau

11

proposed doing that additional analysis to produce

12

credible qualitative evidence that the addition of

13

a citizenship question in the 2020 census will

14

increase the net undercount or increase the

15

differential net undercounts for identifiable

16

subpopulations?

17

A.

Yes.

18

Q.

Who?

19

A.

Me.

20

Q.

And what happened?

21

A.

Well,

22

I had to do a feasibility study by

discussing it with the experts and determining

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 Dr. John M. Abowd , Ph.D.

Page 289
1

whether they had artifacts that might be useful

2

for that or,

3

are experienced in implementing for dual system

4

estimation could be used for that.

if not, whether the methods that we

5

I consulted internal experts,

6

the person I consider to be the world's biggest

7

expert on this, and they didn't think that we

8

could do it.

9

Q.

10
11

including

Is that still an open question, whether

you can do it?
A.

It's not an open question as to whether I

12

should devote staff research time to doing it.

13

I'd say it's an open question as ,to whether the

14

coverage measurement program could be used for

15

that purpose.

16
17
18

Q.

Yes.

So whose decision was it not to undertake

any analysis to see if the
A.

So we don't make decisions like that,
It was

19

like chain of command on things like that.

20

within my scope of authority to assemble the team

21

to do that.

22

off their current 2020 operations and divert them

I would have , had to pull most of them

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 Dr. John M. Abowd , Ph.D.

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1

from other research projects that are directly

2

related to other interests.
And as I've said,

3

we didn't believe that

4

credible quantitative information about net

5

undercounts was necessary for our recommendation

6

to the Secretary or to defend our current

7

mitigation.
All of the components are going to be

8
9

affected.

And they could drive the net

10

undercounts way up or they could drive them way

11

down.

12

of that,

13

resources required to do that are better deployed

14

in making the 2020 census work.

15

And I wish that I had a better assessment

Q.

but it is my expert opinion that the

In terms of the 0MB clearance package,

16

who is responsible for approving the package to

17

send to 0MB at the Census Bureau?

18

So the responsibility for preparing it

A.

19

lies with the program area that wants to do the

20

activity.

21

lies with the associate director for decennial

22

census.

So the responsibility for preparing it

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 1 EXHIBIT I y.

Page 1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

- - -x

NEW YORK IMMIGRATION
COALITION, et al.,

Plaintiffs,
Case No.

v.
1:18-CF-05025-JMF
UNITED STATES DEPARTMENT
OF COMMERCE, et al.,

Defendants.
- - -x

Friday, October 16, 2018
Washington, D.C.

Videotaped Deposition of:
JOHN GORE,
called for oral examination by counsel for the
Plaintiffs, pursuant to notice, at the law offices of
Covington

&

Burling, LLP, One City Center, 850 Tenth

Street, Northwest, Washington, D.C. 20001-4956,
before Christina S. Hotsko, RPR, CRR, of Veritext
Legal Solutions, a Notary Public in and for the
District of Columbia, beginning at 9:05 a.m., when
were present on behalf of the respective parties:

 Page 16
1

A.

That's~- more or less.

2

Q.

Prior to coming to the Department of

Yeah.

3

Justice, with respect to all of the cases that you

4

litigated under Section 2 of the Voting Rights

5

Act,

you represented defendants,

correct?

6

A.

That's correct.

7

Q.

In all of your experience representing

8

defendants in cases under Section 2 of the Voting

9

Rights Act, you never took the position that the

10

plaintiffs block-level CVAP data was insufficient

11

to establish the first Gingles precondition

12

because it was a statistical estimate, correct?

13

A.

When I was in private practice,

I was

14

representing a client, so my clients took various

15

positions.

16

positions on behalf of clients in court.

17

recall an instance where a client of mine took

18

that position.

19

Q.

And as a lawyer,

I pursued those
I can't

And in all of your experience litigating

20

cases under Section 2 of the Voting Rights Act,

21

you're not aware of,

22

situation where a court held that block-level CVAP

in any of your cases, a

 Page 17
1

data was insufficient to satisfy the first Gingles

2

precondition because it was a statistical

3

estimate, correct?

4

A.

5

involved in?

6

Q.

That's correct.

7

A.

As a litigant or as attorney?

8

Q.

As an attorney.

9

A.

As an attorney.

10
11

You're talking about cases I actually was

No,

I'm not aware of any

such case.
Q.

Do you have any experience drawing

12

districts for purposes of complying with the first

13

Gingles precondition?

14

A.

That's a

that's a fair question.

In

15

one of our cases, we did have a case that went to

16

a remedial phase.

17

in drawing the district, but I was certainly

18

involved in reviewing various remedial proposals

19

and other proposals that were submitted to the

20

court in the course of litigation.

21
22

Q.

I wouldn't say I was involved

So let me clarify my question.

My

question is about the technical aspects of

 Page 18
1

actually getting the census data,

2

mapping software, and drawing a district.

3
4
5

6
7

taking the

You don't have any experience doing that,
correct?
A.

That's correct.

I've never sat in front

of a computer with Maptitude and drawn a district.
Q.

Okay.

You don't have any experience --

8

so that would mean you don't have any experience

9

drawing districts using ACS data,

correct?

10

A.

That's correct.

11

Q.

And you don't have any experience taking

12

census block-group level data and performing an

13

estimation procedure to produce block-level data,

14

correct?

15

A.

No,

16

Q.

You're currently acting assistant

I don't have that experience.

17

attorney general for civil rights at the U.S.

18

Department of Justice,

correct?

19

A.

Correct.

20

Q.

And when did you become the acting AAG

21
22

for civil rights?
A.

July 28th,

2018.

 Page 67
1

issue of reinstating a citizenship question on the

2

census questionnaire.

3

answer.

4

BY MR. HO:

5

6
7

Q.

Beyond that,

I can't

What was your understanding of who

initiated those conversations?
A.

My understanding was that those

8

conversations were initiated by the Department of

9

Commerce.

10

Q.

Those initial conversations that are

11

referred to in this memo, your testimony is that,

12

to the best of your knowledge, those conversations

13

were not initiated by the Department of Justice,

14

correct?

15

A.

Again,

I wasn't a party to those

16

conversations, but that's been my working

17

understanding.

18

Q.

And your working understanding is that

19

the Department of Justice did not reach out to the

20

Department of Commerce to initiate those

21

conversations for the purposes of obtaining better

22

data to enforce the Voting Rights Act,

correct?

II

 Page 68
1

2

MR. GARDNER:

Objection.

Lack of

foundation.
THE WITNESS:

3

Again,

I wasn't a party to

4

those conversations, but that's been my working

5

understanding.

6

BY MR. HO:

7

Q.

The second paragraph in this memo reads,

8

"I spoke several times with James McHenry by phone

9

and, after considering the matter further,

James

10

said that Justice staff did not want to raise the

11

question, given the difficulties Justice was

12

encountering in the press at the time, the whole

13

Corney matter.

14

at the Department of Homeland Security."

15

James directed me to Gene Hamilton

So were you aware, before I read that,

16

that as of September 8th, 2017, Justice staff did

17

not want to raise the citizenship question?

18
19
20
21
22

MR. GARDNER:

Objection.

Lack of

foundation.
THE WITNESS:
I was aware of that.

Before you read that, yes,

 Page 69
1
2
3

BY MR. HO:
Q.

Okay.

I'm sorry.

4

When did you become aware -- so --

Let me start that question.

So your understanding is that, as of

5

September 8th, 2017,

6

raise the citizenship question, correct?

7

A.

Justice staff did not want to

Yes, that's my understanding, although it

8

wasn't my understanding on September 8th; it was

9

an understanding that I acquired later.

10

Q.

When did you acquire the understanding

11

that, as of September 8th, Justice staff did not

12

want to raise the issue of a citizenship question?

13

A.

Again,

I think it was along the same

14

timeline that I learned that these conversations

15

had taken place,

16

the first paragraph and the second paragraph

17

involving Mr. McHenry.

18

aware of those sometime after September 8th and

19

before the letter was sent from the Department of

20

Justice.

21
22

Q.

the conversations referenced in

And I believe I became

How did you become aware of the fact

that, as of September 8th, 2017, the Department of

 Page 73
1
2

BY MR. HO:
Q.

When did you first become involved in

3

deliberations about whether or not to request a

4

citizenship question on the decennial census

5

questionnaire?

6

7
8

9
10

A.

I first became involved in either late

August or early September of 2017.
Q.

You can't get more precise than late

August or early September?
A.

Well,

I think it was either a day or two

11

before Labor Day in 20

12

2017 which I think that year may have fallen in

13

late August.

14

Q.

the Labor Day weekend in

So as of September 8th, 2017, the date of

15

Mr. Comstock's memo,

16

that, as of that date, you were already involved

17

in deliberations over whether or not to include a

18

to request a citizenship question for the 2020

19
20

your best recollection is

census questionnaire?
A.

That is correct.

And I don't know

21

Mr. Comstock's memo is dated September 8th.

22

doesn't give any dates for any of these

He

 Page 74
1

conversations,

so I don't know if this memo was

2

contemporaneous to conversations or related back

3

to prior conversations he'd had.

4

But yes,

5

of September 8th,

6

those deliberations.

7

Q.

that's my recollection,

that, as

I would have been involved in

How did you become involved in

8

deliberations over whether or not to request the a

9

citizenship question be included on the

10

2020 census questionnaire?

11

MR. GARDNER:

12

To the extent that that answer would

Objection.

13

cause you to reveal information subject to

14

deliberative process privilege,

15

to answer.

16

question without divulging such information, you

17

may do so.

18

I instruct you not

To the extent you can answer that

THE WITNESS:

I became involved through a

19

conversation I had with two individuals at the

20

Department of Justice.

21

BY MR. HO:

22

Q.

Which two individuals at the Department

 '
'

Page 75
1

of Justice?

2

A.

3

Hankey.

4

Q.

The attorney general and Mary Blanche

Roughly when did your conversations with

5

Mary Blanche Hankey and the attorney general

6

occur?

7

MR. GARDNER:

Objection.

8

THE WITNESS:

It was the day or two

9

before the Labor Day weekend.

Compound.

The reason I

10

remember that is that the attorney general is a

11

college football fan,

12

Tigers,

13

Eagle, since the Auburn Tigers were playing their

14

first game of the season that weekend.

15

BY MR. HO:

16
17
18

Q.

and he's a fan of the Auburn

so I ended the call with the cry for War

What was communicated to you during that

conversation with Attorney General Sessions?
MR. GARDNER:

Objection.

Calls for

19

information subject to deliberative process

20

privilege.

21

I instruct you not to answer.

22

THE WITNESS:

Consistent with that

 Page 84
1

2

Yes.
Q.

Your working understanding is not that

3

the attorney general initiated a conversation with

4

the Secretary of Commerce about the citizenship

5

question,

correct?

6

A.

That's correct.

7

Q.

You responded to Mr. Gary's e-mail by

8

asking him to give you a call.

9

conversation with Mr. Gary?

10

A.

I don't know.

Did you have a

I don't know if I had a

11

conversation with him with specific reference to

12

this e-mail.

13

Q.

I can't

I don't recall that.

After receiving this e-mail, did you

14

learn more from Mr. Gary about what he was

15

referring to when he talked about concerns that

16

the Commerce Secretary had?

17

A.

I don't recall -- as I said,

I don't

18

recall discussing this with Mr. Gary.

19

we had some short e-mail correspondence, as this

20

document lays out, but that's all I recall about

21

it at this time.

22

Q.

Obviously,

Mr. Gary said in this e-mail that he

 Page 152
1

from whom you received input on the letter was

2

from Mr. Herren,

correct?

3

A.

That's correct.

4

Q.

After that period of early November

5

of 2017 when you had drafted the initial draft of

6

that letter, Mr. Herren gave you some edits,

7

correct?

8

A.

That's correct.

9

Q.

After that time, did you receive any

10

further edits from Mr. Herren to the draft letter?

11

A.

I don't recall one way or the other.

12

Q.

So you have no recollection of receiving

13

input from career civil rights division staff on

14

the letter requesting a citizenship question other

15

than that one occasion in early November around

16

the time of the first draft from Mr. Herren,

17

correct?

18

A.

I believe that's correct.

Yeah.

19

Q.

You continued to revise the letter after

20

early November of 2017 with input from different

21

people.

22

Mr. Herren,

But after that first round of edits from
you received no subsequent edits from

 Page 175
1

A.

Correct.

2

Q.

And -- so it would be accurate to say

3

that even when there was a citizenship question on

4

the census long form,

5

when it was using citizenship data for purposes of

6

VRA enforcement, it was using data that were

7

statistical estimates based on a sample, correct?

8
9

10

A.

the Department of Justice,

I believe that's correct,

if I follow

your question.
Q.

So it's accurate to say that the

11

Department of Justice,

12

enforcing the Voting Rights Act, when it's needed

13

citizenship data,

14

statistical estimates rather than hard count data,

15

correct?

17

THE WITNESS:

19

knowledge,

20

BY MR. HO:

22

Objection.

Lack of

foundation.

18

21

it has always relied on

MR. GARDNER:

16

for as long as it's been

Q.

To the best of my

I think that's correct.

You're not aware of any period of time in

which the Department of Justice had access to hard

 Page 203
1

statistical estimates when it was actually

2

collecting the responses to the long form

3

questionnaire.

4

Q.

5

Thank you.
The letter doesn't mention that the

6

Department of Justice has always relied on

7

statistical estimates of citizenship with margins

8

of error for purposes of VRA enforcement, does it?

9

10
11

A.

I believe that's correct.

Again, the

letter speaks for itself.
Q.

Okay.

You're not aware of a single filed

12

case by the Department of Justice where the

13

Department of Justice was unable to succeed on a

14

VRA claim because of the fact that the CVAP data

15

on which DOJ was relying was a statistical

16

estimate with a margin of error that increases as

17

the geographic area decreases,

correct?

18

A.

I am not aware of any such filed case.

19

Q.

You're not aware of any case where a

20

plaintiff was unable to succeed on a VRA claim

21

because of the fact the five-year ACS citizenship

22

data have a margin of error associated with them,

 Page 204
1

correct?

2

A.

Five-year estimates?

3

Q.

Okay.

That's correct.

You're not aware of any case where

4

plaintiffs, other than DOJ, declined to bring a

5

VRA case

6

let me start that question again.
You're not aware of any case where

7

plaintiffs declined to bring a VRA claim because

8

ACS data are statistical estimates with a margin

9

of error, correct?

10

A.

That is correct.

I am aware of one case

11

in which a court held that the one-year ACS

12

estimate, because of its associated margin of

13

error, was insufficiently reliable to allow the

14

plaintiff in that case to proceed with a Section 2

15

claim.

16

Q.

Right.

17

A.

That is correct.

18

Q.

We'll talk about that in a bit, but I

19

That's the Benavidez case, right?

want to talk about something else first.

20

(Gore Deposition Exhibit 19 marked for

21

identification and attached to the

22

transcript.)

 Page 256
1

Jarmin to Mr. Gary reads,

"Arthur, thank you for

2

your letter dated 12/12/2017 regarding improving

3

the quality of citizenship information for DOJ

4

enforcement of the Voting Rights Act.

5

start by saying the bureau is fully supportive of

6

providing DOJ with the highest quality statistical

7

information possible.

8

staff to review all possible ways to address the

9

needs expressed in the letter.

Let me

To that end, I directed

They have now

10

briefed me, and their findings suggest that the

11

best way to provide PL94 block-level data with

12

citizen voting population by race and ethnicity

13

would be through utilizing a linked file of

14

administrative and survey data the Census Bureau

15

already possesses.

16

quality data produced at lower cost.

17

schedule a meeting of census and DOJ technical

18

experts to discuss the details of this proposal.

19

We look forward to working with you on this

20

important statistical matter."

21
22

This would result in higher

I suggest we

From this e-mail, do you understand that
the Census Bureau director, or acting director, is

 Page 271
1

that --

2

MR. GARDNER:

3

pursue that proposal.
MR. HO:

4

Decision as to whether to

That's what I just wanted

Okay.

5

to clarify because --

6

MR. GARDNER:

7

MR. HO:

Yeah.

Okay.

-- it wasn't clear to me.
,,

MR. GARDNER:

8

Sorry.

I thought that was

I:
•

9

10
11

clear.

I apologize.

Yeah,

that's the decision.

BY MR. HO:
Q.

Okay.

So the conversation with the

12

attorney general included a discussion about

13

whether or not to pursue the Census Bureau's

14

proposal to produce block-level CVAP data for DOJ

15

for VRA enforcement purposes without including a

16

citizenship question,

17

A.

correct?

That is correct.

And just to clarify,

I

18

wasn't familiar with all the particulars of their

19

proposal.

20
21
22

Q.

That's fine.
The decision was made not to pursue the

Census Bureau's alternative proposal for producing
I

 Page 272
1

block-level CVAP data for purposes of VRA

2

enforcement through a means other than including a

3

citizenship question on the census, correct?

4

A.

That is correct.

5

Q.

Who made that decision?

6

A.

The attorney general.

7

Q.

When was that decision made?

8

A.

Around this time.

9

10

when it was made.

I can't remember the specific

date.

11

12

I don't know exactly

Q.

When you say "around this time," you mean

around January of 2018, correct?

13

A.

That is correct.

14

Q.

Are the reasons for that decision

15

memorialized anywhere?

16

A.

Not to my knowledge.

17

Q.

Were those reasons ever communicated to

19

A.

Yes.

20

Q.

What were those reasons?

18

21
22

you?

MR. GARDNER:

Objection.

Calls for

information subject to deliberative process

 Page 274
1

decision?

2

A.

It would have been around this

3

January 29th date,

4

specifically.
Q.

5

I believe.

But I don't recall

And who informed you that the Department

6

of Justice should not meet with the Census Bureau

7

to discuss the Census Bureau's alternative

8

proposal for producing block-level CVAP data?

9

A.

The attorney general.

10

Q.

You received this e-mail thread from

11

Arthur Gary, which includes the initial e-mail

12

from Dr. Jarmin describing the alternative

13

proposal for collecting CVAP data at higher

14

quality produced at lower cost on January 29th,

15

2018, correct?

16

A.

On this e-mail chain, that's correct.

17

don't know whether I received it before then or

18

not.

19

January 29th,

20

e-mail in this chain where Mr. Gary sent me that

21

information.

22

Q.

I

But yes, this e-mail -- the e-mail dated
2018, at 2:33 p.m.,

is the first

When you told Congress on May 21st,

2018,

 Page 300
1

December 12 letter, the Gary letter, did not use

2

the word "necessary" with respect to the inclusion

3

of a citizenship question on the 2020 census,

4

correct?
A.

5

Yes,

I have just noted that in my

6

testimony.

7

recollection of what this comment is referring to.
Q.

8

I will say I don't know -- I have no

You agree,

right, Mr. Gore,

that CVAP

data collected through the census questionnaire is

9

not necessary for DOJ's VRA enforcement efforts?

10
11

A.

I do agree with that.

12

Q.

I'm going to show you another document.

13

Yes.

We'll mark this as 26 and 27.

14

(Gore Deposition Exhibits 26 and 27

15

marked for identification and attached to

16

the transcript.)

BY MR. HO:

17
18

Q.

19

26 is an e-mail from Mr. Aguinaga to you

dated June 12th, 2018, correct?

20

A.

Yes,

21

Q.

And the subject is, QFR responses,

22

it is.

correct?

.

.

. ..

<

<

 EXHIBIT   

STUART GURREA, PH.D.
STATE OF CALIFORNIA vs WILBUR L. ROSS, J.R.
1
2

October 24, 2018

1

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

3

4

STATE OF CALIFORNIA, by and
through Attorney General
Xavier Becerra,

5

Plaintiff,
6

Case No.
3:18-cv-01865

VS.

7

8
9

WILBUR L. ROSS, JR., in his
official capacity as Secretary
of the U.S. Department of
Commerce; et al.,

10
11

Defendants.
CITY of SAN JOSE, a municipal
corporation; et al.,

12
Plaintiffs,
13
vs.

Case No.
5:18-cv-02279

14
15
16

WILBUR L. ROSS, JR., in his
official capacity as Secretary
of the U.S. Department of
Commerce; et al.,

17

Defendants.

18
19

VIDEO DEPOSITION OF STUART D. GURREA,

20

October 24,

21
22

PhD

2018

10:06 a.m.
101 Mission Street,

23

Suite 1000

San Francisco, California

24
25

Reported by:

QUYEN N. DO,

CSR No. 12447

800.211.DEPO (3376)

Esquire Solutions. com

 STUART GURREA, PH.D.
STATE OF CALIFORNIA vs WILBUR L. ROSS, J.R.

1

October 24, 2018
103

BY MS. BOUTIN:

2

Q

Okay.

3

A

Okay.

4

Q

Do you have any opinions about any

So I'll ask my next question.

5

variation in nonresponse rate, as a result of the

6

citizenship question, across either -- either

7

geographic areas or demographic groups?

8
9

A

So I haven't formed any independent

opinions on that issue.

I'm familiar with what I

10

have read in this -- as part of my preparation for

11

this report.

12

Q

Okay.

And what -- can you think of any

13

articles in particular that have related to the

14

subjects that you've reviewed?

15

A

No.

16

Q

Okay.

Do you have any opinions on how

17

effective the Census Bureau's nonresponse follow-up

18

efforts are likely to be for the 2020 census?

19

MS. FEDERIGHI:

20

THE WITNESS:

21

22

Objection.

Vague.

No.

BY MS. BOUTIN:
Q

Okay.

And this is a little -- little bit

23

related to the last one.

Do you have any opinions

24

on how effective the Census Bureau's nonresponse

25

follow-up efforts -- and I'm going to -- I'm going
800.211.DEPO (3376)
EsquireSolutions. com

 STUART GURREA, PH.D.
STATE OF CALIFORNIA vs WILBUR L. ROSS, J.R.

1

October 24, 2018
121

Could there be a full enumeration and yet

2

also effects on congressional seats apportionment or

3

distribution of federal assistance programs?

4

A

If everybody is -- is counted, no.

If

5

simply there's errors in one direction and another

6

that -- that offset each other and result in a --

7

a -- a -- a total that doesn't change, then that is

8

possible.
Okay, paragraph 54, you state in the

9

Q

10

second

11

recalculate Plaintiffs' predictions assuming NRFU

12

would have the same success rate as it had in the

13

2010 census:

14

Scenario' ) . 11

15
16

you state that "Defendants asked me to

98.58 percent ('Historical NRFU-Rate

And you cite, for that, a memorandum from
John Abowd and David Brown, September 28th, 2018.

17

Other than that memorandum, is there any

18

other basis that you're aware of for the

19

98.58 percent Historical NRFU-Rate Scenario?

20

A

No.

21

Q

Did you read the September 28th Abowd and

22

Brown memo?

23

A

Yes.

24

Q

Did you agree with its analysis?

25

A

I didn't assess the -- the validity of the
800.211.OEPO (3376)
EsquireSolutions. com

 STUART GURREA, PH.D.
STATE OF CALIFORNIA vs WILBUR L. ROSS, J.R.

1

2

October 24, 2018
122

analysis.
Q

Okay.

Is it fair to say that you took the

3

number that was provided with you and just applied

4

it to the data that you were working with?

5

A

Yeah.

That's my assignment.

6

Q

Okay.

Since -- since, I believe, you

7

stated earlier that you have not spoken about

8

this -- these cases with anyone at the Census

9

Bureau, is it fair to say you did not discuss the

10

Historical NRFU-Rate Scenario with anyone at the

11

Census Bureau?

12

A

That's correct.

13

Q

Okay.

14

Did you communicate about it in any

other way with the Census Bureau other than --

15

A

No.

16

Q

--

17

A

Just -- other than through the memo, I --

through the memo?

18

I mean, I -- I guess, yeah, I -- I -- I wasn't

19

communicating.

20

is a communication.

I'm -- I did receive it.

21

Q

Okay.

22

A

Yes, no

23

Q

Okay.

24

A

-- nothing else.

25

Q

Okay.

I guess it

Are you aware whether the memo was
800.211.DEPO (3376)

Esquire Solutions. com

 STUART GURREA, PH.D.
STATE OF CALIFORNIA vs WILBUR L. ROSS, J.R.

October 24, 2018
125

1

it will fully mitigate any decline in

2

self-response rates attributable to a

3

citizenship question through NRFU and

4

imputation."

5

Do you have any opinion on whether or not

6

the Census Bureau will fully mitigate any decline in

7

self-response rates attributable to a citizenship

8

question through NRFU and imputation?

9

A

No.

10

Q

Okay.

In the analysis that you conducted

11

by applying historical NRFU rate, what demographic

12

groups does that rate apply to?

13

A

The assumption that I took was to apply a

14

hypothetical NRFU across demographics in all the

15

different scenarios that I considered.

16

Q

Okay.

17

A

These scenarios involved noncitizen

18

households and in the Maryland case, Hispanic,

19

noncitizen, non-Hispanic households.

20

about it.

21

Q

Okay.

I think that's

Do you know whether it is

22

reasonable to assume that historical NRFU rate would

23

apply to all demographic groups in 2020?

24

A

I -- I don't know one way or another.

25

Q

Do you know whether in 2010 the NRFU
800.211.DEPO (3376)
EsquireSolutions. com

 EXHIBIT 

Page 1
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

CITY OF SAN JOSE, et al.,:
Plaintiffs,
Case No.
3:18-cv-2279-RS

vs.
WILBUR ROSS, JR., et al.,:
Defendants.

Thursday, October 25,

2018

Videotape Deposition of SAHRA PARK-SU,
taken at the Law Offices of Manatt,
Phillips, LLP,

Phelps &

1050 Connecticut Avenue NW,

Washington, D.C., beginning at 9:40 a.m.,
before Ryan K. Black, a Registered Professional
Reporter, Certified Livenote Reporter and Notary
Public in and for the District of Columbia.

Veritext Legal Solutions
Mid-Atlantic Region
1250 Eye Street NW - Suite 350
Washington, D.C.
20005

 Page 141
1

BY MR. ADAMS:

2

Q.

And Question 31 appears on Page 11.

3

A.

Mm-hmm.

4

Q.

What is the process that was used

5

in the past to get questions added to the

6

Decennial Census, or do we have something

7

similar where a precedent was established?

8

A.

Mm-hmm.

9

Q.

And as we saw in Exhibit 17, the

10

Department of Commerce responded with your name

11

when asked for all people who worked on any

12

draft of the response.

13

A.

Yep.

14

Q.

And what work did you do on a draft of

15

re -- of the response to this question?

A.

16

Yes.

It goes back to what I mentioned

17

earlier.

18

of our meetings with them, had indicated that

19

there was a distinction between the process

20

that's used at questions to the American

21

Community Survey, which they had shared with

22

us,

23

necessarily have a similar process, to their

24

knowledge,

25

And,

Census, based off of our understanding

.

and that the Decennial Census did not

that they could point to.

therefore,

it would not be an accurate

 Page 142
1

characterization to say that it was the same.

2

And so based off of that, Census was

3

to go about -- my understanding from the meeting

4

was that Census was going to go back and work on

5

the draft response to Question 31.
Now,

6

as I mentioned,

these were

7

extremely busy times.

And I think a few days,

8

if not a week or so had gone by,

9

not updated.

and this was

And I was in a meeting with Mike

10

Walsh, we had a call with Census in lieu of an

11

in-person meeting that we typically have,

12

had a hard copy of this and had asked Mike

13

Walsh, our Deputy General Counsel, based off

14

of his recollection of our meeting with Census,

15

could he draft together a draft response so that

16

I can send it to Census for clearance, comments

17

or edits so I could get the ball rolling so we

18

can finalize these answers.

and

Mike Walsh then handwrote the draft

19

20

response for me on my paper, which then I then

21

went back and typed it up and sent it to Census.

22

I sent it to -- by e-mail to Ron Jarmin,

23

believe Enrique Lamas, Christa, which those are,

24

typically,

25

for their comments,

I

the people that I ' l l e-mail asking
suggestions or clearance on

 Page 143
1

this.

2
3

4
5

And that was my involvement regarding
this question and answer.
Q.

When was -- so Census sent a draft

response to Question 31 to Commerce?

6

A.

Mm-hmm.

7

Q.

And you asked at some point for a

8
9

revision to that response?
A.

I don't recall myself asking.

I

10

remember at the meeting the understanding was

11

Census was going to go back, because I don't

12

believe this was the only one where they were

13

going to revisit.

14

Census was supposed to come back with their

15

revision.

16

Q.

This was one of some that

Do you recall when Census was first

17

asked to revisit their initial response to

18

Question 31?

19

A.

I don't.

I would imagine it

20

probably wasn't too long after they provided

21

this response,

22

course of one of our subsequent meetings with

23

them, either weekly or biweekly, or even a phone

24

conversation -- no,

25

Excuse me.

and it was probably during the

it was an in-person meeting.

>

 Page 159
1

or feedback from Mr. Jarmin, Mr. Lamas or

2

Ms.

Jones about this proposed response?
A.

3

No.

And the reason why Christa is

4

always copied on any e-mail to Ron and Enrique

5

is so that she can also ping them and check with

6

them in the event that they missed an e-mail

7

from us.
And so Christa was my liaison

8

over there to ensure that we could get a timely

9

10

response from Census,

11

then that was good as -- as what census was

12

going forward with,

13

understanding.

14

Q.

and,

if she responded,

so that was my

So your understanding -- was it

15

your understanding that Census had reviewed and

16

approved of the language that Mr. Walsh wrote on

17

your hard copy and you retyped here?

18

A.

That's what I took it as.

19

Q.

Following -- following this exchange,

20

did Commerce send to you any other revisions to

21

a response to Question 31?

22

A.

No,

23

Q.

Can you recall

not that I can recall.
do you know whether

24

they

25

Department of Commerce a further revision of the

,

,

whether Census sent anyone within the

 Page 160
1

response to Question 31?

2

A.

I do not know.

As far as I was

3

concerned, this was done and over and we can

4

move on.

5

Q.

From your perspective, you said it's

6

done and over and we can move on, so you view

7

this language as having been approved final

8

language for the response to Question 31?
A.

9

10

With regards to Census's review, that

was my understanding.

11

Q.

12

Was there further review of the

response within the Department of Commerce?

13

A.

I do not know.

At this point there

14

are a lot of e-mails going back and forth,

15

so ...

16

MR. ADAMS:

I'd like to show you

17

what's been marked as Exhibit Number 22, and

18

this is Bates Number 9812.

19

(Deposition Exhibit No. 22, a document

20

Bates Numbered 9812, was marked.)

21

MR. ADAMS:

Before we go to this

22

exhibit, I want to go back to what we were just

23

discussing and show you Exhibit 23.

24

(Deposition Exhibit No. 23, a document

25

Bates Numbered 3403, was marked.)

h

·•·

 Page 169
1

response in Exhibit 21 to the version that's in

2

Exhibit 18,

3

A.

Okay.

4

Q.

-- I just want to go back to 21

5

and make sure I understand what,

6

happened to this version of the response after

7

February 23rd, 2018.

8

revisions to the response to Question 31?

if anything,

Did you make any further

9

A.

No.

10

Q.

To your knowledge, did Mr. Walsh

11

make any further revisions to the response?

12

A.

No.

13

Q.

To your knowledge, did Secretary Kelly

14

make any revisions to this version?

15

A.

No.

16

Q.

Are you aware of anyone who made

17

revisions to this version of Question 31 after

18

February 23rd?

19

MS. BAILEY:

20

Objection.

Asked and

answered.

21

THE WITNESS:

22

No.

BY MR. ADAMS:

23

If we could compare Exhibit 21 with

Q.

24

Exhibit 18, --

25

A.

'

Okay.

'

  EXHIBIT 

Page 1
UNITED STATES DISTRICT COURT

1

FOR THE DISTRICT OF MARYLAND

2
3

4

-

ROBYN KRAVITZ,

-

-

X

et al.,

Plaintiffs,
5

U.S.
6

vs.

Civil Action No.

DEPARTMENT OF COMMERCE,

8:18-cv-01041-GJH

et al.,
Defendants.

7

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

X

LA UNION DEL PUEBLO ENTERO,
8

et al.,
Plaintiffs,
Civil Action No.

vs.

9

WILBUR L.
10

ROSS,

sued in his

official capacity as U.S.
Secretary of Commerce,

11

et al.,

Defendants.
-

12

8:18-CV-01570-GJH

-

-

-

-

-

-

-

-

-

-

-

-

-

VIDEOTAPED DEPOSITION OF:

13

DATE:

Friday,

14

TIME:

9:08 a.m.

15

LOCATION:

Covington

-

DAVID SANFORD LANGDON

October 26,

&

850 Tenth Street,

17

Washington,
REPORTED BY:

Denise M.

2018

Burling

16
18

X

D.C.

D.C.

Brunet,

RPR,

19

Reporter/Notary

20

Veritext Legal Solutions

21
22

1250 Eye Street,
Washington,

D.C.,
D.C.

Suite 350
20005

Veritext Legal Solutions
215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830

 Page 243
1

2

making in your previous answer?
That it's not easy.

A

How --

It's not easy.

It

3

takes a lot of work.

4

reason it takes a lot of work is because the

5

administrative data may not measure what you think

6

it's measuring, how you think it's measuring it.

7

And you have to -- the

Are you aware of any testing that's been

Q

8

done to evaluate the effects of including a

9

citizenship question on the 2020 decennial on

10

response rates or the accuracy of -- and quality

11

of survey data?

12

So the -- no,

A

so there hasn't been.

13

There hasn't been any testing to date.

14

time frame wouldn't -- the Secretary's decision

15

wouldn't -- you know,

16

kind of testing.
That said,

17

And the

wouldn't accommodate that

the Census Bureau presented a

18

reasonable -- very reasonable alternative to get

19

at those kinds of issues, which was looking at,

20

you know,

21

Citizenship has always been part of the American

22

Community Survey, but nonetheless,

the impacts -- there was no change.

looking at

Veritext Legal Solutions
215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830

 EXHIBITM

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

NEW YORK I~,f ~HGRATION
COALITION, et al.,
Plaintiffs,
v.

No. 1:18-cv-5025 GMF)

UNITED STATES DEPARTMENT OF
COMMERCE, et al.,
Defendants.

DEFENDANTS' SECOND SUPPLEMENTAL RESPONSES TO PLAINTIFFS' FIRST
SET OF INTERROGATORIES TO DEFENDANTS UNITED STATES DEPARTMENT
OF COMMERCE AND WILBUR ROSS
Pursuant to Federal Rules of Civil Procedure 26, 33, and 34, Defendants United States
Department of Commerce and Wilbur Ross submit these second supplemental objections and
responses to Plaintiffs' First Set of Interrogatories to Defendants United States Department of
Commerce and Wilbur Ross, as modified by Plaintiffs' counsel by email dated August 27, 2018.

OBJECTIONS AND RESPONSES TO INTERROGATORIES
Interrogatory No. 1. With regard to the document found in the Administrative Record at 1321,
please IDENTIFY:
a. the "senior Administration officials" who "previously raised" reinstating the citizenship
question;
b. the "various discussions with other government officials about reinstating a citizenship
question to the Census";
c. the consultations Secretary and his staff participated in when they "consulted with Federal
governmental components";
d. the date on which the "senior Administration officials" who "previously raised"
reinstating the citizenship question first raised this subject; and
e. all PERSONS with whom the "senior Administration officials had previously raised"
reinstating the citizenship question.

 Objections:
Defendants object to this interrogatory to the extent that it seeks (a) communications or
information protected by the attorney-client privilege or (b) communications or information
protected by the deliberative-process privilege.
Defendants further object to this interrogatoty as vague and overbroad to the extent it seeks
information about meetings or conversations with government officials and other persons whose
identities are immaterial to the claims in this litigation, and because the burden of responding is
disproportionate to the needs of this case.

Response:
After conducting a diligent search, Defendants do not distinguish among the terms used
synonymously in the Secretary's Supplemental Memorandum: "senior Administration officials,"
"other government officials," and officials at other "Federal governmental components." In order to
respond as fully as possible to this interrogatory, Defendants therefore will construe subparts a, b, and
c, as coextensive and will identify, as a single group, the individuals within the executive branch but
outside the Department of Commerce who, before the December 12, 2017 Department of Justice
letter, and as referenced in the Secretary's Supplemental Memorandum, either (a) discussed the
citizenship question with Secretaty Ross, (b) had raised or discussed whether to reinstate a citizenship
question, or (c) were consulted by Secretary Ross or his staff regarding whether the Department of
Justice would support, and if so would request, inclusion of a citizenship question as consistent with
and useful for enforcement of the Voting Rights Act. In accordance with that interpretation, and
subject to and without waiving the above objections, Defendants identify the following individuals.
Mary Blanche Hankey,James McHenry, Gene Hamilton, Danielle Cutrona,John
Gore, and Jefferson Sessions. Although Kris Kobach is not a "government official"
within the meaning of the Supplemental Memorandum, the Defendants identify him
2

 nonetheless for the sake of completeness. 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
Defendants therefore are also listing Mr. Bannon for the sake of completeness.
In addition, Secretary Ross discussed the possible reinstatement of a citizenship
question on the 2020 decennial census with Attorney General Sessions in the Sp.ring
of 2017 and at subsequent times.

As to Interrogatories, see Verification page i11jh1.

3

 As to objections:
Dated: October 11, 2018

Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney Gene~al
BRETT A. SHUJvlATE
Deputy Assistant Attorney General
JOHN R. GRIFFITHS
Director, Federal Programs Branch
CARLOTTA P. WELLS
Assistant Director, Federal Programs Branch

Isl Stebhen Ehrlich
'
KATE BAILEY
GARRE1T CO\1.E
STEPHEN EHIU~ICH
CAROL FEDERIGHI
Trial Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, N.W.
Washington, DC 20005
Tel.: (202) 305-9803
Email: stephen.ehrlich@usdoj.gov
Comm/far Deje11da11ts

4

 CERTIFICATION OF EARL COMSTOCK
I certify under penalty of perjury that the foregoing second supplemental response to
Plaintiffs' Interrogatory No. 1 is true and correct to the best of my knowledge, information 1 belief,
understanding, or recollection, with the understanding that the Department of Commerce is
continuing to research its responses to Plaintiffs' interrogatories and reserves the right to further
supplement its responses.

Dated: October 11, 2018

Earl Comstock

5

   EXHIBIT 

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORI<.

NEW YORK IMMIGRATION
COALITION, et. al,

Civil Action No. 1:18-cv-05025-JMF
Hon.Jesse M. Furman

Plaintiff,

v.
UNITED STATES DEPARTMENT OF
COMMERCE, et. al,
Defendant.

DEFENDANTS' OBJECTIONS AND RESPONSES TO PLAINTIFFS' THIRD SET OF
INTERROGATORIES
Pursuant to Federal Rules of Civil Procedure 26 and 33 and the Local Rules of this Court
Defendants, the United States Department of Commerce and Wilbur Ross, Secretary of Commerce,
in his official capacity, by and through their attorneys of record, provide the following objections and
response to Plaintiffs' third set of interrogatories.

OBJECTIONS WHICH APPLY TO ALL REQUESTS FOR ADMISSION
1.

Separate and apart from the specific objections set forth below, Defendants object to

any discovery taking place in this case to the extent such discovery is brought pursuant to claims
purportedly under the Administrative Procedure Act, as resolution of any such claims should be based
upon the administrative record in this case.
2.

Each and every response contained herein is subject to the above objection, which

applies to each and every response, regardless of whether a specific objection is interposed in a
specific response. The making of a specific objection in response to a particular request is not
intended to constitute a waiver of any other objection not specifically referenced in the particular
response.

 OBJECTIONS TO DEFINITIONS
1.

Defendant object to the inclusion of definitions for any term not relied on in these

interrogatories. Any requirement that Defendant respond to such definitions in the abstract is not
proportional to the needs of the case and the burden of such a response outweighs its likely benefit,
which is none. Defendant does not hereby waive any future objection to the definition of such terms,
or waive the right to employment of Defendant's own definition of such terms.

OBJECTION TO INSTRUCTIONS
1.

Defendants object to instructions number 1, 3, 4, 5 to the extent they seek to impose

requirements beyond those required by Federal Rules of Civil Procedure.
2.

Defendants object to instruction number 3 to the extent it requires Defendants to

"identify each PERSON or organization having knowledge of the factual basis, if any, upon which the
objection, privilege, or other ground is asserted," as such an instruction exceeds the requirements of
Federal Rule of Civil Procedure 33 and constitutes a discrete subpart.
3.

Defendants object to instruction numbers 1, 4 and 5, to the extent they seek .the

production of documents, which goes beyond the scope of the requi~ements of Federal Rule of Civil
Procedure 33. Defendants will not produce documents in response to Plaintiffs' third set of
interrogatories. Defendants further object to instructions 4 and 5 to the extent they seeks information
in a privilege log that exceeds the requirements of Federal Rule of Civil Procedure 26(6)(5).

DEFENDANTS' RESPONSES TO PLAINTIFFS' INTERROGATORIES
INTERROGATORY NO. 5
With regard to draft and final response to Question 31 in the "Questions on the Jan 19 Draft
Census Memo on the Do] Citizenship Reinstatement Request" found at AR 2303-2304 and AR 196,
please IDENTIFY:
a. all persons who worked on any draft of the response;
b. all persons outside the CENSUS BUREAU who worked on any draft of the response;

2

 c. the date on which each person outside the CENSUS BUREAU who worked on the
response first worked on the response; and
d. the person or persons responsible for removing discussidn of the "well-established
process" when adding or changing content of the DECENNIAL CENSUS.

OBJECTIONS: Defendants incorporate by reference the above objections to the definitions and
instructions. Defendants further object that this request is irrelevant to any claim or defense and not
proportionate to the needs of the case. Defendants further object to Plaintiffs' interrogatory number
five on the grounds that it constitutes four discrete subparts. Accordingly, Defendants will treat this ·
interrogatory as four discrete interrogatories.

RESPONSE:
a.

Ron Jarmin, Enrique Lamas, Burton Reist, Christa Jones, Michael Walsh, and Sahra ParkSu.

b. Michael Walsh and Sahra Park-Su.
c.

On or about February 23, 2018.

d. Once Census and the Department of Commerce started to confer on the question and
realized that there was no process for adding such a question to the 2020 Decennial
because it had not been done in recent memory, the individuals identified in response to
part "a" of this interrogatory collectively approved the final language.

INTERROGATORY NO. 6
For each Request for Admission, to the extent that your responses is anything other than
unqualified admissions, for each such response please identify with specificity all facts upon which
you base your denial or qualified admission of any portion of the requested admission, including
identifying with specificity all documents, events, occurrences, or conduct on which you base your
denial or qualified admission.

3

 OBJECTIONS: Defendants incorporate by reference the above objections to the definitions and
instructions. Defendants further incorporate by reference each and every objection made to Plaintiffs'
request for admissions. Defendants further object that this interrogatory asks for the basis for
responses that are "anything other than unqualified admissions" to requests for admissions that are not
relevant to any claim or defense and not proportionate to the needs of the case. Many of Plaintiffs'
requests for admissions have no relevance as to whether the Secretary of Commerce's decision to
reinstate a citizenship question is arbitrary or capricious or whether his decision violates equal
protection principles.
Defendants further object to this interrogatory as constituting multiple, discrete subparts. Sqfeco

efAm.

v. &wstron, 181 F.RD. 441, 445-46 (CD. Cal. 1998) (holding that an interrogatory that asks for

the basis for the denial of each request for admission constitutes multiple interrogatories);Jovanovich v.

Redden Marine Supp!J, Ino:, No. Cl0-924, 2011 WL 4459171,*2-3 (WD. Wash. Sept. 26, 2011) (same);
Estate if Manship v. United States, 232 F.RD. 552, 557 (MD. La. 2005) (same); American ChiropradicAssoc.
v. Trigon Healthcare, Inc., No. 1:00-CV-00113, 2002 WL 534459, *3 (W.D. Va. 2002) (same); Commodores
Enter. Corp. v. McClary, No. 6:14-cv-1335, 2015 WL 12843874 (SD. Fla. Nov. 6, 2015) (same).
Furthermore, Plaintiffs' request that Defendants provide up to 141 separate interrogatory responses is
unduly burdensome and not proportionate to the needs of the case. Accordingly, because Defendants
do not stipulate to responding to more than 25 interrogatories in total, see Federal Rule of Civil
Procedure 33(a)(1), and interrogatory 5 constitutes four discrete subparts, Defendants will only respond
to the first sixteen requests for admissions that are not unqualified admissions.

RESPONSES:
Interrogatory No. 9 (request for admission no. 1): The reason Defendants did not provide an
unqualified admission to request for admission number 1 is because Defendants lack any reasonable
means of verifying the accuracy of statements purportedly made by a private party not within the
control of the United States at the time the statement is said to have been made.

4

 Interrogatory No. 10 (request for admission no. 2): The reason Defendants did not provide an
unqualified admission to request for admission number 2 is because Defendants lack any reasonable
means of verifying the accuracy of statements purportedly made by a private party not within the
control of the United States at the time the statement is said to have been made.

Interrogatory No. 11 (request for admission no. 3): The reason Defendants did not provide an
unqualified admission to request for admission number 3 is because Defendants lack any reasonable
means of verifying the accuracy of statements purportedly made by a private party not within the
control of the United States at the time the statement is said to have been made.

Interrogatory No. 12 (request for admission no. 4): The reason Defendants did not provide an
unqualified admission to request for admission number 4 is because Defendants lack any reasonable
means of verifying the accuracy of statements purportedly made by a private party not within the
control of the United States at the time the statement is said to have been made.

Interrogatory No. 13 (request for admission no. 5): The reason Defendants did not provide an
unqualified admission to request for admission number 5 is because Defendants lack any reasonable
means of verifying the accuracy of statements purportedly made by a private party not within the
control of the United States at the time the statement is said to have been made.

Interrogatory No. 14 (request for admission no. 6): The reason Defendants did not pro~ide an
I

unqualified admission to request for admission number 6 is because Defendants lack any reasonable
means of verifying the accuracy of statements purportedly made by a private party not within the
control of the United States at the time the statement is said to have been made.

Interrogatory No. 15 (request for admission no. 7): The reason Defendants did not provide an
unqualified admission to request for admission number 7 is because Defendants lack any reasonable
means of verifying the accuracy of statements purportedly made by a private party not within the
control of the United States at the time the statement is said to have been made.

5

 Interrogatory No. 16 (request for admission no. 8): The reason Defendants did not provide an
unqualified admission to request for admission number 8 is because Defendants lack any rea.sonable
means of verifying the accuracy of statements purportedly made by a private party not within the
control of the United States at the time the statement is said to have been made.

Interrogatory No. 17 (request for admission no. 9): The reason Defendants did not provide an
unqualified admission to request for admission number 9 is because Defendants lack any reasonable
means of verifying the accuracy of statements purportedly made by a private party not within the
control of the United States at the time the statement is said to have been made.

Interrogatory No. 18 (request for admission no. 10): The reason Defendants did not provide an
unqualified admission to request for admission number 10 is because Defendants lack any reasonable
means of verifying the accuracy of statements purportedly made by a private party not within the
control of the United States at the time the statement is said to have been made.

Interrogatory No. 19 (request for admission no. 11): The reason Defendants did not provide an
unqualified admission to request for admission number 11 is becauseDefendants lack any reasonable
means of verifying the accuracy of statements purportedly made by a private party not within the
control of the United States at the time the statement is said to have been made.

Interrogatory No. 20 (request for admission no. 12): The reason Defendants did not provide an
unqualified admission to request for admission number 12 is because Defendants lack any reasonable
means of verifying the accuracy of statements purportedly made by a private party not within the
control of the United States at the time the statement is said to have been made.

Interrogatory No. 21 (request for admission no. 13): The reason Defendants did not provide an
unqualified admission to request for admission number 13 is because Defendants lack any reasonable
means of verifying the accuracy of statements purportedly made by a private party not within the
control of the United States at the time the statement is said to have been made.

Interrogatory No. 22 (request for admission no. 14): The reason Defendants did not provide an

6

 unqualified admission to request for admission number 14 is because, Defendants lack any reasonable
means of verifying the accuracy of statements purportedly made by a private party not within the
control of the United States at the time the statement is said to have been made.
Interrogatory No. 23 (request for admission no. 15): The reason Defendants did not provide an
unqualified admission to request for admission no. 15 is that Defendants lack any reasonable means of
verifying whether statements attributed to President Donald J. Trump as reported by TIME Magazine
are accurately reported.
Interrogatory No. 24 (request for admission no. 16): The reason Defendants did not provide an
unqualified admission to request for admission no. 16 is because is that Defendants lack any reasonable
means of verifying whether statements attributed to President Donald J. Trump as reported by the
media are accurately reported.
Interrogatory No 25 (request for admission 17): The reason Defendants did not provide an
unqualified admission to request for admission no. 17 is because the request for admission did not
accurately characterize President Donald J. Trump's January 27, 2017 executive order. An accurate
characterization of that executive order is reflected in Defendants' response to Plaintiffs' request for
admission no. 17.
As to Interrogatories, see Verification page i1ifra.

7

 As to objections:
Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
BRETT A. SHUMATE
Deputy Assistant Attorney General
JOHN R. GRIFFITHS
Director, Federal Programs Branch
CARLOTfA P. WELLS
Assistant Director, Federal Programs Branch

IsI S tebhen
Ehrlich
"
KATE BAILEY
GARRETT COYLE
STEPHEN EHRLICH
CAROL FEDERIGHI
Trial Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, N.W.
Washington, DC 20005
Tel.: (202) 305-9803
Email: stephen.ehrlich@usdoj.gov
Counselfar Defendants

Dated: October 23, 2018

8

 CERTIFICATION QF EARL COMSTOCK
I certify under penalty of perjury that the foregoing responses to Plaintiffs' Interrogatories
No. 5 and 6, both of which contain multiple discrete subparts thnt are not separately numbered, arc
true and correct to rhe best of my knowledge, information, belief, un~crstancling, and recollection.
i

Dared: l t> / 1'J-./

~
Earl Comstock

J.ol 13

~--

9