Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 1 of 204 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et al., Plaintiffs, v. No. 18-cv-02921 UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants. EXHIBIT INDEX 1. Email from K. Bailey to J. Friedman (Oct. 23, 2018) 2. Neuman Letter 3. Gary Letter 4. Deposition of Mark Neuman Excerpts 5. Deposition of John Gore Excerpts 6. Declaration of John Gore 7. Email from J. Zadrozny to B. Lenihan (Feb. 21, 2018) 8. Email from J. Uthmeier to J. Zadrozny (Jan. 31, 2018) 9. Email from J. Uthmeier to G. Dory (Mar. 28, 2018) 10. Email from B. Robinson to J. Uthmeier (Apr. 20, 2017) 11. Declaration of James Uthmeier 12. Declaration of Michael A. Cannon 13. Supplemental Declaration of Michael A. Cannon 14. Declaration of Jean McKenzie Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 2 of 204 15. Declaration of Terri Ware 16. Declaration of Christa Jones 17. Interview of J. Uthmeier, Comm. on Oversight & Reform, U.S. House of Reps. (June 11, 2019) Excerpts 18. AR 1321 19. Plaintiffs’ First Set of Requests for Expedited Production of Documents and First Set of Interrogatory to Defendants United States Department of Commerce and Wilbur Ross 20. Defendants’ Supplemental Responses to Plaintiffs’ First Set of Interrogatories to Defendants United States Department of Commerce and Wilbur Ross 21. Oct. 24, 2018 Hr’g Tr. Excerpts 22. AR 8371 23. AR 10237 24. AR 11329 25. Declaration of Albert E. Fontenot 26. Declaration of Peter Davidson 27. Declaration of Earl W. Comstock Case Document 648-1 Filed 08/03/19 Page 3 of 204 Exhibit 1 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 4 of 204 From: To: Cc: Subject: Date: Attachments: Bailey, Kate (CIV) Freedman, John A.; Federighi, Carol (CIV); Ehrlich, Stephen (CIV); Coyle, Garrett (CIV); Wells, Carlotta (CIV) DHo@aclu.org; Cc: Khan, Sania; asenteno@MALDEF.org; Todd Grabarsky; Raines, Chase; Thomas, Tina; Goldstein, Elena; Colangelo, Matthew; Gabrielle.Boutin@doj.ca.gov; Duraiswamy, Shankar; Matthew Wise; Rosenberg, Ezra; "Case, Andrew" RE: Remaining discovery productions Tuesday, October 23, 2018 5:42:00 PM DOJ00039722.pdf DOJ00039725.pdf DOJ00039728.pdf DOJ00039730.pdf DOJ00039733.pdf DOJ00039735.pdf DOJ00039736.pdf DOJ00039740.pdf DOJ00039743.pdf DOJ00039745.pdf DOJ00039747.pdf DOJ00039748.pdf DOJ00039749.pdf DOJ00039753.pdf DOJ00039756.pdf DOJ00039758.pdf DOJ00039759.pdf DOJ00039760.pdf DOJ00039764.pdf DOJ00129991.pdf Def."s R&Os to Census RFAs FINAL.pdf DOJ00129977.pdf Counsel, Attached please find: • • • Corrected versions of the documents we produced to you on October 9th in response to Judge Furman’s order (these now contain both old and new bates numbers, for your reference) DOJ 15199 and DOJ 15200, which, as referenced in my email below, we have determined we can produce in full (the attachments show both old and new bates numbers, for your reference) Defendants’ responses to NYIC Plaintiffs’ requests for admission to Census Regarding the full transcripts from the CBAMS focus groups, as promised, here is Dr. Abowd’s explanation as to why the transcripts themselves cannot be subject to disclosure: The transcripts from the 42 focus groups conducted as a part of the 2018 Census Barriers, Attitudes and Motivators Study were collected under the authority of Title 13 of the U.S. Code and are protected under Sections 9(a)(3) and 214 in exactly the same manner as the individual response data from a survey or census. As such, their release is subject to the approval of the Disclosure Review Board under the supervision of the Data Stewardship Executive Policy Committee, chaired by the Chief Operating Officer Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 5 of 204 at the Census Bureau. The OMB-approved Consent Form for these focus groups said: Are my answers confidential? Yes. The U.S. Census Bureau is required by law to protect your information (13 U.S.C. § 9 and § 214). The Census Bureau is not permitted to publicly release your responses in a way that could identify you or your household. https://www.reginfo.gov/public/do/DownloadDocument?objectID=79530702 The DRB has an approved protocol for reviewing and releasing redacted transcript summaries, after-action reports, and scientific articles based on the analysis of focus group transcripts. It does not have any approved protocol for releasing full transcripts. Because current research shows that there is no reliable collection of algorithms for providing acceptable disclosure avoidance in the full transcripts, there is no plan to approve a protocol that would allow the DRB to release full transcripts. Thank you, Kate Bailey Trial Attorney United States Department of Justice Civil Division – Federal Programs Branch 20 Massachusetts Avenue, NW Room 7214 Washington, D.C. 20530 202.514.9239 kate.bailey@usdoj.gov From: Bailey, Kate (CIV) Sent: Tuesday, October 23, 2018 3:23 PM To: Freedman, John A. ; Federighi, Carol (CIV) ; Ehrlich, Stephen (CIV) ; Coyle, Garrett (CIV) ; Wells, Carlotta (CIV) Cc: DHo@aclu.org; Cc: Khan, Sania ; asenteno@MALDEF.org; Todd Grabarsky ; Raines, Chase ; Thomas, Tina ; Goldstein, Elena ; Colangelo, Matthew ; Gabrielle.Boutin@doj.ca.gov; Duraiswamy, Shankar ; Matthew Wise ; Rosenberg, Ezra Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 6 of 204 ; 'Case, Andrew' Subject: Remaining discovery productions Counsel, In accordance with Judge Furman’s order at last week’s status conference, I write to provide most of the outstanding written discovery productions. • • Today we overnighted materials to the NYAG’s offices and sent the same materials by courier to Arnold and Porter’s DC offices. o Production letters for DOJ Productions 6, 7, and 8 are attached, as well as the accompanying privilege logs. o Production 7 is on an encrypted flash drive because it was too large to fit on CDs. The password for the drive is , and instructions for use are included in the box. Kindly return the flash drives to us after you’ve copied the files, please. The remaining productions are on CDs, and the password is o Production 7 includes several “dead,” or missing bates numbers, due to an inadvertent error on our end. The production was too large for us to re-run once we discovered those errors, so please understand that any missing bates numbers you observe in Prod007 are intentional. o In response to Dale Ho’s email of 10/7, we previously produced 115 documents without bates numbers. Today we have also transmitted bates numbered versions of these documents. We did not previously address DOJ 15200, but we have determined that that document can be released in full. It will be provided by separate email later today. o In response to the DOJ doc issues raised in John Freedman’s email of October 5th at 8:32 am, you requested that we produce email chains represented at DOJ 14907, 14922, 14996, 15002, 15006, 30720, 30723 and 30725. We have determined that we can release this chain in full, and these documents are attached to this email. o You requested more information about DOJ 15197, 15198, 15199, and 15200. These documents were in hard copy, and therefore no metadata exists for author, recipient, date, or time. These materials were collected from John Gore. As noted above, we have determined that DOJ 15200 can be released in full. In addition, we have determined that DOJ 15199 can be released in full, and will be coming later this afternoon. As noted in the privilege log entry for DOJ 15198, it is a copy of the Uthmeier memo provided to Gore, and DOJ 15198 is a note that accompanied DOJ 15197. These documents will not be released. o Also attached are the production letter and privilege log for Commerce Production 6. o On Thursday, 10/8, Elena wrote to us requesting the basis for our request to claw back two documents. The replacement documents also are attached. Information has been redacted as privileged in these two documents for the reasons set forth in the privilege log for the same redactions in COM_DIS00014369, Row 114. Also attached to this email are Defendants’ responses to NYIC Plaintiffs’ RFAs to the Department of Commerce and responses to the Third Interrogatories to all Defendants. Responses to NYIC Plaintiffs’ RFAs to Census will be coming later today. Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 7 of 204 • • By separate email momentarily, I will be providing you re-produced versions of the documents we produced on October 9th in response to Judge Furman’s order—the new versions have both the original and new bates numbers. Sahra Park-Su is available for deposition this Thursday. David Langdon is available this Friday and, per my earlier email, John Gore’s earliest date of availability also is Friday. Kate Bailey Trial Attorney United States Department of Justice Civil Division – Federal Programs Branch 20 Massachusetts Avenue, NW Room 7214 Washington, D.C. 20530 202.514.9239 kate.bailey@usdoj.gov Case Document 648-1 Filed 08/03/19 Page 8 of 204 Exhibit 2 Case Document 648-1 Filed 08/03/19 Page 9 of 204 John H. Thompson Director, Bureau of the Census US Department of Commerce Washington, DC 20233 Dear Mr Thompson: We are writing to formally request the reinstatement of a question on the 2020 Census questionnaire relating to citizenship. The Department seeks to reinstate the question because of recent Court decisions where courts required enumerated (block level) data related to voting age pOpulation. This data can only be provided based on enumerated (Census), rather than sample (ACS) data. We are aware that the 2010 Census was the first decennial census since the 1880 Census without a question about citizenship. We also note that the American Community Survey, which replaced the "long form" version of the questionnaire in the decennial 2000 Census, asks a question about citizenship. We are not aware that of any serious concerns relating to the presence of a citizenship question on the ACS. We understand that the Bureau personnel may believe that ACS data on citizenship was sufficient for redistricting purposes. We wanted the Bureau to be aware that two recent Court cases have underscored that ACS data is-not viable and/or sufficient for purposes of redistricting. Two important citations from these cases are as follows: - We note that in these two cases, one in 2006 and one in 2009, courts reviewing compliance with requirements of the Voting Rights Act?and its application in legislative redistricting, have required Latino voting districts to contain 50% 1 of "Citizen Voting Age Population (or CVAP). It is clear that full compliance with these Federal Court decisions will require block level data than can only be secured by a mandatory question in the 2020 enumeration. Our understanding is that data on citizenship is specifically required to ensure that the Latino community achieves full representation in redistricting. We accordingly request that the Bureau prepare, without delay, the appropriate question on citizenship for the 2020 Census, and submit this addition for 2020 EXHIBIT 5% 1 earl/7 B9 Case Document 648-1 Filed 08/03/19 Page 10 of 204 Census for OMB Review and other appropriate notifications. Please let me know if you have any questions about his letter or wish to discuss this subject. I can be reached at (202) or @doj.gov. Sincerely yours, Attachment. Cc: Case Document 648-1 Filed 08/03/19 Page 11 of 204 Exhibit 3 "1 Case Document 648-1 Filed 08/03/19 Page 12 of 204 1,4 ices?144131? 1?:51 9.92/34 US. Department of Justice Justice Management Division Q?ice ofGenerol Comical Warmer. DC. 20530 DEC 1 2 2017 VIA Cm??m RETURN 7014 212d 0000 8064' 4964 Dr. Ron Jarmin Performing the Non-Exclusive Functions and Duties of the Director U.S. Census Bureau United States Department of Commerce Washington, DC. 20233-0001 Re: Request To Reinstate Citizenship Question Go 2020 Census Questionnaire Dear Dr. Jarmin: The Deparnnent of Justice is committed to robust and evenhanded enforcement of the Nation's civil rights laws and to free and fair elections for all Americans. In furtherance of that commitment, I write on behalf of the Deparnnent to formally request that the Census Btuean reinstate on the 2020 Census questionnaire a question regarding citizenship, formerly.r included in the so?called ?long form" census. This data is critical to the Department?s enforcement of Section 2 of the Voting Rights Act and its important protections against racial discrimination in voting. To full}r enforce those reqtdrements, the Department needs a reliable calculation of the citizen voting-age population in localities where voting rights 1vielotions are alleged or suspected. As demonstrated below, the decennial census questionnaire is the most vehicle for collecting that data, and reinstating a question on citizenship will best enable the Department to protect all American citizens? voting rights under Section 2. The Supreme Com has held that Section 2 of the Voting Rights Act prohibits "vote dilution? by state and local jurisdictions engaged in redistricting, which can come when a racial group is improperly deprived of a single?member district in which it could form a majority. See Hamburg v. Gorgtes, 478 US. 30, 50 (1936). Multiple federal courts of appeals have held that, where citizenship rates are at issue in a voteadilution case, citizen voting-age population is the proper metric for determining whether a racial group could constinIte a majority in a single- district. See, Reyes v. City of Farmers Brooch, 586 F.3d 1019, 1023?24 (5th Cir. 2009); Barnett v. City of Chicago, 141 F.3d 699, 704 (7th Cir. 1998); Negro v. City ofll?omz' Beach, 113 F.3d 1563, 1567-69 (11th Cir. 1997); Romero v. City ofPomono, 883 F.2d 1418, 1426 (91h Cir. 1989), overruled inport on other grounds by Townsend v. Holman Cami?ng Corp, 914 F.2d 1136, 1141 (9th Cir. 1990); see also LUIAC v. Perry, 548 US. 399, 423-442 (2006) (analyzing vote?dilution claim by reference to citizen voting-age population). 000663 Case Document 648-1 Filed 08/03/19 Page 13 of 204 ?nEc?14?2e1v 17:52 P.o3xo4 .. 9? a The purpose of Section 2?s vote-dilution prohibition ?is to facilitate participation .. . in our political process" by preventing unlaw?il dilution of the vote on the basis of race. Campos v. City of Houston, 113 F.3d 544, 548 (5th Cir. 1997). Importantly, ?[tjhe plain language of section 2 of the Voting Rights Act makes clear that its protections apply to United States citizens.? Id. Indeed, courts have reasoned that ?[t]he right to vote is one of the badges of citizenship? and that ?[t]he dignity and very concept of citizenship are diluted if noncitizens are allowed to vote." Burnett, 141 F.3d at 704. Thus, it would he the wrong result for a legislature or a court to draw a single-member district in which a numerical racial minority group in a jurisdiction was a majority of the total voting-age population in that district but ?continued to be defeated at the polls? hccause it was not a majority of the citizen voting-age population. Campus, 1 13 F.3d at 548. These cases make clear that, in order to assess and enforce compliance with Section 2?s protection against discrimination in voting, the Deparnnent needs to be able to obtain citizen voting-age population data for census blocks block groups, counties, towns, and other locations where potential Section 2 violations are alleged or suspected. From 1970 to 2000, the Census Bureau included a citizenship question on the so-called ?long form" questionnaire that it sent to approximately one in every six households during each decennial census. See, U.S. Census Bureau, File 3: 2000 Census ofPopulutiou d: Housing?Appendix at 13?? (July 2007), available at 4161? (last visited Nov. 22, 2017); on. Census Bureau, Index of Questions, available at (last visited Nov. 22, 2017). For years, the Department used the data collected in response to that question in assessing compliance .with . Section 2 and in litigation to enforce Section 2?s protections against racial discrimination in voting. In the 2010 Census, however, no census questionnaire included a question regarding citizenship. Rather, following the 2000 Census, the Census Bureau discontinued the ?long form? questionnaire and replaced it with the American Conununity Survey (ACE). The ACS is a sampling survey that is sent to only around one in every thirtyueight households each year and asks a variety of questions regarding demographic information, including citizenship. See U.S. Census Bureau, American Community Survey in?rmution Guide at 6, available at Information . Guidepdf (last visited Nov. 22, 2017). The ACS is currently the Census Bureau?s only survey that collects infomation regarding citizenship and estimates citizen votingmage population The 2010 redistricting cycle was the ?rst cycle in which the ACS estimates provided the Census Bmeau?s only citizen voting-age population data. The Dcparhnent and state and local jurisdictions therefore have used those ACS estimates for this redistricting cycle. The ACS, however, does not yield the ideal data for such purposes for several reasons: - Jurisdictions conducting radish-letting, and the Department in enforcing Section 2, already use the total population data from the census to determine compliance with the one-person, one-vote requirement, see Evenwel v. Abbott, 136 S. Ct. 1120 (Apr. 4, 2016). As a result, using the ACS citizenship estimates means relying on two different data sets, the scope and level of detail of which vary quite signi?cantly. . 000664 Case Document 648-1 Filed 08/03/19 Page 14 of 204 hi?. insets?sat? 17:52 P.34x84 Because the ACS estimates are rolling and aggregated into one?year, three?year, and ?ve year estimate-s, they do not align in time with the decennial census data. Citizenship data ?'om the decennial census, by contrast, would align in time With the total and voting-age pepulatiou date. from the census that jurisdictions already use in redistricting. The ACS estimates are reported at a ninety percent con?dence level, and the margin of error increases as the sample size?and, thus, the geographic ares?decreases. See U.S. Census Bureau, Glossary: Con?dence interval (American Communiw Sway). available at Survey (last visited November 22, 2017). By contrasL'decenuial census data is a count of the population. - Census data is reported to the census block level, while the smallest unit reported in the ACS estimates is the census block group. See Amsricm Community Survey Data 3, 5, 10. Accordingly, redistricting jurisdictions and the Department are required to perform ?tr?tet estimates and to interject limiter uncertainty in order to approximate citizen voting-age population at the level of a census block, which is the ?mdamental building block of a redistricting plan. Having all of the relevant population and citizenship data available in one data set at the census block level would greatly assist the redistricting process. For all of these reasons, the Department believes that decennial census questionnaire data regarding citizenship, ifnvailable, would be more appropriate for use in redistricting and in Section 2 litigation than the ACS citizenship estimates. Accordingly, the Department formally requests that the Census Bureau reinstate into the 2020 Census a question regarding citizenship We also request that the Census Bureau release this new data regarding citizenship at the some time as it releases the other redistricting data, by April 1 following the 2020 Census. At the same time, the Deparnnent requests that the Bureau also maintain the citizenship question on the ACS, since such question is necessary, inter oils, to yield informatiOn for the periodic determinations made by the Bureau under Section 203 of the Voting Rights Act, 52 U.S.C. 10503. Please let me know if you have any questions about this letter or wish to discuss this request. I can be reached at (202) 514?3452, or at gov. . Sincerely yours, Arthan.Gary :j General Counsel Justice Management Division Wiles? ?34 Case Document 648-1 Filed 08/03/19 Page 15 of 204 Exhibit 4 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 16 of 204 Page 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND ROBYN KRAVITZ, et al., ) ) Plaintiffs, ) ) vs. ) ) U.S DEPARTMENT OF ) COMMERCE, et al., ) ) Defendants. ) ________________________) ) LA UNION DEL PUEBLO ) ENTERO; et al., ) ) Plaintiffs, ) ) vs. ) ) WILBUR L. ROSS, sued in ) his official capacity as) U.S. Secretary of ) Commerce, et al., ) ) Defendants. ) Civil Action No. 8:18-cv-01041-GJH Hon. George J. Hazel Civil Action No. 8:18-cv-01570-GJH Hon. George J. Hazel VIDEOTAPED DEPOSITION OF A. MARK NEUMAN Taken on behalf of Plaintiffs October 28, 2018 (Starting time of the deposition: 12:22 p.m.) Veritext Legal Solutions Mid-Atlantic Region 1250 Eye Street NW - Suite 350 Washington, D.C. 20005 Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 17 of 204 Page 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 I N D E X O F E X A M I N A T I O N Page Questions by Mr. Duraiswamy ...................... 8 INDEX OF EXHIBITS EXHIBIT DESCRIPTION PAGE For the Defendant: Exhibit 1 Washington Post Article 86 Exhibit 2 Excerpts of Draft of Executive Order 86 Exhibit 3 Document Excerpt 86 Exhibit 4 Ross Calendar Excerpts 174 Exhibit 5 E-Mail 186 Exhibit 6 LULAC Link 197 Exhibit 7 E-Mail 107 Exhibit 8 E-Mail Exchange 200 Exhibit 9 Summary of Supreme Court Cases 208 Exhibit 10 E-Mail Exchange 211 Exhibit 11 E-Mail Exchange 221 Exhibit 12 E-Mail Exchange 231 Exhibit 13 E-Mail 237 Exhibit 14 E-Mail 241 Exhibit 15 Compilation of Documents 260 Exhibit 16 E-Mail Exchange 267 Exhibit 17 E-Mail Exchange 272 Exhibit 18 Draft of Letter 278 Exhibit 19 Document Subpoena 285 Exhibit 20 E-Mail Exchange 309 Exhibit 21 Call Agenda 309 Exhibit 22 E-Mail 309 Exhibit 23 July 28, 2017 Presentation 337 Exhibit 24 Memo 338 21 22 (The original exhibits were retained by the court reporter, to be attached to Mr. Duraiswamy's transcript.) 23 24 25 Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 18 of 204 Page 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND ROBYN KRAVITZ, et al., ) ) Plaintiffs, ) ) vs. ) ) U.S DEPARTMENT OF ) COMMERCE, et al., ) ) Defendants. ) ________________________) ) LA UNION DEL PUEBLO ) ENTERO; et al., ) ) Plaintiffs, ) ) vs. ) ) WILBUR L. ROSS, sued in ) his official capacity as) U.S. Secretary of ) Commerce, et al., ) ) Defendants. ) Civil Action No. 8:18-cv-01041-GJH Hon. George J. Hazel Civil Action No. 8:18-cv-01570-GJH Hon. George J. Hazel DEPOSITION OF WITNESS, A. MARK NEUMAN, produced, sworn, and examined on the 28th day of October, 2018, between the hours of nine o'clock in the forenoon and six o'clock in the evening of that day, at the offices of Feldman, Wasser, Draper & Cox, 1307 South Seventh Street, Springfield, Illinois 62705, before BRENDA ORSBORN, a Certified Shorthand Reporter within and for the State of Illinois, in a certain cause now pending before United States Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 19 of 204 Page 4 1 District Court for the District of Maryland, wherein 2 Robyn Kravitz, et al. are the Plaintiffs and U. S. 3 Department of Commerce, et al. are the Defendants, and 4 La Union Del Pueblo Entero, et al. are the Plaintiffs 5 and Wilbur L. Ross, in his official capacity as U.S. 6 Secretary of Commerce, et al. are the Defendants 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 20 of 204 Page 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 A P P E A R A N C E S For the Plaintiffs: Mr. Shankar Duraiswamy Covington & Burling LLP 850 Tenth Street, NW Washington, D.C (202) 622-5273 sduraiswamy@cov.com For Los Angeles Unified School District: Mr. Keith A. Yeomans (via phone) Dannis Woliver Kelley 115 Pine Street, Suite 500 Long Beach, California 90802 (562) 366-8500 kyeomans@DWKesq.com For the County of Los Angeles: Mr. David I. Holtzman (via phone) Holland & Knight LLP 50 California Street, Suite 2800 San Francisco, California 94111 (415) 743-6909 david.holtzman@hklaw.com 17 18 For La Union del Pueblo Entero: 19 20 21 22 23 24 25 Ms. Julia A. Gomez (via phone) MALDEF 634 South Spring Street, 11th Floor Los Angeles, CA 90014 (213) 629-2512, Ext. 109 jgomez@maldef.org Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 21 of 204 Page 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES CONTINUED: For the State of California: Ms. Gabrielle D. Boutin Office of the Attorney General of the State of California 1300 I Street, Suite 125 Sacramento, California 94244 gabrielle.boutin@doj.ca.gov For the State of New York: Mr. Alex Finkelstein Volunteer Assistant Attorney General Civil Rights Bureau Office of the NYS Attorney General 28 Liberty Street, 20th Floor New York, New York 10005 (212) 416-6129 alex.finkelstein@ag.ny.gov For the New York Immigration Coalition: Ms. Sarah E. Brannon ACLU Foundation 915 15th Street NW Washington, D.C. 20005 (212) 549-2500 sbrannon@aclu.org For the Defendant United States: Mr. Brad P. Rosenberg U.S. Department of Justice Civil Division, Federal Program Branch 1100 L Street, N.W. Washington, D.C. 20005 (202) 514-3374 brad.rosenberg@usdoj.gov Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 22 of 204 Page 7 1 2 APPEARANCES CONTINUED: For the Defendant Department of Commerce: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Howard W. Feldman Mr. David M.S. Dewhirst Mr. James W. Uthmeier United States Department of Commerce Office of the General Counsel 1401 Constitution Avenue, NW Washington, D.C. 20230 (202) 258-5887 ddewhirst@doc.gov juthmeier@doc.gov For the Witness: Mr. Howard W. Feldman Mr. Stanley N. Wasser Feldman, Wasser, Draper & Cox 1307 South Seventh Street Springfield, Illinois 62705 (217) 514-3403 hfeldman@feldman-wasser.com swasser@feldman-wasser.com Also Present: Mr. Thomas R. Lamont The Court Reporter Brenda Orsborn, RPR/CSR/CCR Missouri CCR No. 914 Illinois CSR No. 084-003460 Veritext Legal Solutions 515 Olive Street, Suite 300 St. Louis, Missouri 63101 (888) 391-3376 The Videographer: Mr. Tim Perry Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 23 of 204 Page 33 1 2 knew. Q. (By Mr. Duraiswamy) That's fair. So you 3 mentioned a few minutes ago that the citizenship 4 question was something that came up during the 5 transition. 6 citizenship or immigration question on the 2020 census 7 during the transition? 8 9 10 11 12 A. Who did you talk to about a potential I'm sure I would have talked to people in the Commerce team, and I'm sure -- and I'm sure Tom Hoffler would have talked to me. Q. When you say "people on the Commerce team," can you be more specific? 13 A. The people that I mentioned before. 14 Q. Okay. 15 A. Willie Gaynor. 16 Q. You would have talked to Mr. Gaynor and 17 So you -- Mr. -- is it Rokeath? 18 A. Rokeach. 19 Q. Rokeach, and Mr. Washburn about -- 20 A. I'm not sure about Washburn. 21 wasn't there on a daily basis. 22 there on a daily basis. 23 24 25 Q. Washburn Willie Gaynor was Who else, other than Mr. Gaynor and Mr. Rokeach, would you have talked to about that issue? A. I'm not -- those -- those are people I'm Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 24 of 204 Page 36 1 2 you know. A. I don't have -- I -- I never really sort of 3 knew the total number of people who were on the 4 Commerce transition. 5 people who showed up at meetings, and I didn't see 6 very much, and there were other people that -- the 7 core group of people, when we were writing a Commerce 8 agency action plan, sitting around the table, David 9 Bohigian, Willie Gaynor, David Rokeach. 10 11 12 Q. Because, again, there were (By Mr. Duraiswamy) Anyone else that you remember on the Commerce team, other than those three? A. Loretta Green was sort of the -- you know, 13 like coordinating -- coordinating appointments for 14 Ray, you know, arranging when Ray would show up. 15 Again, that -- that was really the core group of 16 people on the agency action plan. 17 there. 18 time that I wasn't even in town. And I wasn't always So like, you know, there -- there was a lot of 19 Q. Who is Tom Hoffler? 20 A. Tom Hoffler was a person who was known in 21 the redistricting community. He passed away in -- in 22 August. 23 Q. Was he a member of the transition? 24 A. No, he was not. 25 Q. What was the context in which you talked to Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 25 of 204 Page 37 1 him about the citizenship question during the 2 transition? 3 4 5 6 7 8 A. He would have told me what views of members of Congress would have been on this issue. Q. Did he reach out to you to have that conversation, or did you reach out to him? A. I can't remember which it was, but, you know, I've known him for 25 years. 9 Q. How do you know him? 10 A. I knew him when he was working at the NRCC, 11 and I knew him when he was working at the Department 12 of Agriculture. 13 Q. Could you spell his last name for me? 14 A. It's H-O-F-F-L-E-R, I think. 15 16 17 Thomas Hoffler. Q. How many times did you talk to him about the citizenship question during the transition? 18 A. I don't know how many times. 19 Q. More than five? 20 A. It certainly would be less than ten. Less than five? 21 would -- probably less than five during the 22 transition. 23 Q. It Why were you talking to him about the views 24 of members of Congress regarding the citizenship 25 question? Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 26 of 204 Page 38 1 A. The goal of the transition is not to sort of 2 say, "This is what you should do. This is what you 3 shouldn't do." 4 important things that Willie Gaynor and others wanted 5 us to do is reach out to people who would be pushing 6 different things related to Commerce and make sure 7 that we had an understanding if someone was going to 8 introduce legislation on NOAA, that we would have a 9 forecast of likely proposals, likely interests, likely The goal of the -- one of the most 10 budgetary issues, likely priorities. 11 team would have a good sense of what Congress is 12 likely to do. 13 Q. So the incoming So if I understand you correctly, one of the 14 things you were trying to accomplish on a transition 15 is understand the views of members of Congress with 16 regard to certain policy issues that were relevant to 17 the Commerce Department and what the -- 18 A. Correct. 19 Q. -- incoming team would have to deal with at 20 21 the Commerce Department, correct? A. So on NOAA, we would be interested. Well, 22 people from Alaska are very interested in fisheries. 23 The Magnuson Act. 24 installations are interested in the NOAA satellites, 25 that this delegation is interested in the technology People from other states with Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 27 of 204 Page 39 1 issues or the intellectual property issues related to 2 PTO, that there are budgetary issues that the 3 Oversight Committee or the Appropriations Committee 4 thinks that the Census Bureau is costing too much, or 5 spending too much money. 6 that, that forecast in there, and not prejudge what -- 7 whether Congress was right or wrong about the issue. 8 9 You'd want to have all of But Congress is likely to introduce legislation affecting international -- affecting NAFTA 10 and dispute resolutions. 11 forecast so you could give them a sense of what -- 12 what issues they're going to face coming into the 13 door. 14 Q. So you would want to have a So you were speaking with Mr. Hoffler to 15 understand the views of Congress with respect to a 16 potential citizenship question on the decennial, 17 because that was an issue that you anticipated the 18 incoming Commerce team was going to be dealing with? 19 20 21 A. They needed to understand that this was one of the issues that people would raise with him. Q. Who is the "they"? When you say, "they 22 needed to understand that this was one of the 23 issues" -- 24 25 A. The incoming Commerce team needed to understand all the potential issues that would be Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 28 of 204 Page 40 1 raised by members of Congress, especially those in 2 oversight roles or committee chairmen. 3 was one of many, many issues that were identified. 4 Q. And so this So you were speaking with Mr. Hoffler to -- 5 to understand and identify issues related to the 6 Commerce Department that members of Congress would 7 likely be interested in; is that correct? 8 9 A. I was trying to make sure that if the new Commerce team were going on the Hill and meeting with 10 people on the census, that they would understand 11 issues that would be raised to them. 12 Q. And specifically the conversations with 13 Mr. Hoffler were to understand what members of 14 Congress might say or think about possibly adding a 15 citizenship question to the 2020 decennial? 16 A. 17 No, that would have been one -MR. ROSENBERG: Objection, form. 18 Q. (By Mr. Duraiswamy) I'm sorry, go ahead. 19 A. That would have been one of the issues. 20 Remember, Tom Hoffler is also pretty important, 21 because in the past Tom Hoffler was able to get 22 members of Congress to support funding for the Bureau. 23 Because he would say, we need to take a good census. 24 Because, remember, people generally don't want to 25 spend money on the census until we get on top of 2020. Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 29 of 204 Page 41 1 2 Q. And you said Mr. Hoffler was a redistricting expert; is that right? 3 A. He was a point person on redistricting, 5 Q. A point person in what context? 6 A. He would talk to members of Congress about 4 7 yeah. redistricting. 8 Q. From his perch at the NRCC? 9 A. He wasn't -- I'm not sure he was at the NRCC 10 at the time. 11 certainly a person that was connected to that issue. I'm not sure he was a -- he was 12 Q. Do you know when he was at the NRCC? 13 A. I would imagine that he was a consultant or 14 something. 15 that he was connected to that. 16 Q. Again, I don't know his status, but I know What other issues did you talk to 17 Mr. Hoffler about during the transition, other than 18 the citizenship question, redistricting issues and 19 funding issues? 20 A. About the -- about the challenges that the 21 census would face in 2020. Because again, we were 22 going to the Internet to the online response. 23 going to -- we're adopting new technology. 24 know, when I talk to people, stakeholders, I'm talking 25 always about the challenges that we'll face in the We were And, you Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 30 of 204 Page 42 1 next census that we didn't face in the last one. 2 And those really have to do with the work 3 force. 4 sometimes is successful, sometimes is unsuccessful. 5 And what -- it's really important for the census to 6 have a broad -- a broad range of stakeholders that all 7 have skin in the game, that all feel like they're 8 united around the idea of, you know, we may have 9 political differences, but we all want to take a good 10 census. 11 Q. They have to do with the technology that What do you recall learning from Mr. Hoffler 12 about the views of members of Congress regarding a 13 potential citizenship question on the 2020 decennial? 14 A. Pretty much what I just explained to you. 15 Q. Maybe I didn't understand. I'm trying to 16 understand what were the views that members of 17 Congress held that he conveyed to you? 18 19 20 MR. ROSENBERG: Objection. It calls for speculation. Q. (By Mr. Duraiswamy) You -- you can answer. 21 They will object from time to time. 22 you not to answer, you can answer. 23 It call -- form. MR. FELDMAN: Unless they tell The only comment I would have, 24 if you know in the conversations that he specifically 25 represented something from his knowledge of Congress' Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 31 of 204 Page 43 1 2 view. A. I -- I -- I don't recall specifics, but I 3 know, in general, Tom always believed, and I share his 4 view on this, block level data, accurate block level 5 data is very important. 6 7 Q. (By Mr. Duraiswamy) For redistricting purposes? 8 A. For everything. For everything. 9 Q. Including redistricting purposes? 10 A. Including redistricting purposes. 11 Q. Block level data for what? 12 A. For everything. For all census data, and 13 that basically if you -- the hardest thing about the 14 census is not counting everyone living in America. 15 It's counting everyone living in America at the right 16 address one time. 17 18 Q. And he conveyed that view to you in your conversations with him during the transition? 19 MR. ROSENBERG: Objection, vague, form. 20 A. Yeah, again -- 21 Q. (By Mr. Duraiswamy) Let me try to -- 22 A. I gave you a broad thing of -- of something 23 that Tom was always concerned with in every 24 conversation that I would have with him. 25 Q. I'm just trying to understand. You said you Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 32 of 204 Page 44 1 talked to him about the views of members of Congress 2 related to the citizenship question. 3 A. I -- so I would start -- 4 Q. That's my understanding. 5 A. I would start out the conversation by saying 6 what are members of Congress likely to raise on the 7 census issue that we can incorporate into the 8 transition planning so the new Commerce team is not 9 blindsided. 10 11 12 13 Q. And then he raised the issue of a citizenship question or an immigration -A. That was one of -- that was one of the questions. 14 Q. Okay. 15 A. And I'm sure that we talked about census 16 17 Did he -- residency rules as well. Q. Can you -- just for people who may not 18 understand what census residency rules means, can you 19 explain what that means? 20 A. It basically means where were you on 21 April 1st. So people move around, they're snowbirds, 22 they're living at colleges, they're incarcerated or 23 otherwise detained. 24 overseas military. 25 designed to ensure that people are -- are counted at They're in group houses. There's Census residency rules say -- are Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 33 of 204 Page 45 1 2 3 the right address. Q. I assume you talked about census residency rules for undocumented immigrants? 4 A. No, not that I recall. 5 Q. It's possible, but you just don't recall one 6 7 way or the other? A. I don't recall that. It's generally not 8 something associated -- residency rules generally 9 don't get associated with that issue, unless you're 10 dealing with migrant farm workers who tend to be 11 documented. 12 13 14 Q. Well, you know there's litigation going on about that right now, right? A. Not -- I don't. 15 MR. ROSENBERG: Objection. 16 A. I don't. 17 Q. (By Mr. Duraiswamy) Okay. 18 (The court reporter motioned to the attorney.) 21 MR. DURAISWAMY: I will do my best, but I 22 will caution you that may not be the last time you 23 have to remind me. 24 25 I'm sorry. 19 20 That's fair. COURT REPORTER: Q. Thanks. (By Mr. Duraiswamy) And the census residency Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 34 of 204 Page 51 1 Then there was October. Not a lot happened. 2 November, a lot of activity. 3 activity. Then Then December, a lot of Now a lot of activity. 4 So it's -- and, again, this is a part-time 5 volunteer job, so it's very difficult for me to kind 6 of try to recall exactly who said what when. 7 Q. Well -- well, do you recall discussing with 8 other individuals on the Commerce team whether there 9 were particular people or constituencies who are 10 interested in adding a citizenship question to the 11 census? 12 MR. ROSENBERG: 13 MR. FELDMAN: 14 15 16 Objection, vague. If you -- if you can answer it, answer it. A. Tom Hoffler was, I think, the first person that said something to me about that issue. 17 Q. (By Mr. Duraiswamy) Meaning he -- he -- 18 A. He flagged it, you know. 19 Q. He flagged it as something that might be of 20 He said -- interest to some people -- 21 A. Right. 22 Q. -- in constituencies? 23 A. Right. 24 Q. And you said he was a point person for 25 redistricting in certain circles. He's -- he's a Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 35 of 204 Page 52 1 Republican -- he was a Republican? 2 A. Yeah, he is. 3 Q. Okay. 4 A. Yeah. 5 Q. And so his work on redistricting over the 6 years has been in connection with the Republican party 7 or different state Republican parties, if you know? 8 A. 9 10 MR. ROSENBERG: Objection, vague, lack of foundation. 11 12 Well, he was -- MR. FELDMAN: A. Go ahead. He was the person I recall in the 2000 13 census who was advising Bill Thomas, who was the 14 Chairman of the House Administration Committee, and 15 Bill Thomas was an expert, you know, as -- he was an 16 expert on a lot of things, but he was an expert on 17 redistricting. 18 of committee chairmen who would interact with a 19 Secretary of Commerce. 20 Q. So I knew that Tom Hoffler had the ear (By Mr. Duraiswamy) Did he -- do you recall 21 him referring to specific members of Congress who 22 might be interested in that issue? 23 A. 24 25 I don't recall -MR. ROSENBERG: A. Objection, vague -- -- the specific ones. Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 36 of 204 Page 53 1 MR. ROSENBERG: 2 MR. DURAISWAMY: 3 MR. FELDMAN: 4 MR. DURAISWAMY: 5 Okay. He answered it. That's fine. I'd ask, though, that you just object to the form. 6 7 -- as to who the him was. MR. ROSENBERG: Q. (Nodding head.) (By Mr. Duraiswamy) What was the substance 8 of the conversations that you had with the other 9 members of the Commerce team regarding a citizenship 10 question during the transition? 11 A. Again, one of many issues. 12 Q. I understand it's one of many issues. 13 just trying to understand what was discussed about it. 14 MR. FELDMAN: 15 MR. DURAISWAMY: 16 MR. FELDMAN: 17 I'm to when? When? During the transition. That's from a period of when Why don't we put -- 18 A. From September through -- through January. 19 Q. (By Mr. Duraiswamy) When did you join the 20 21 22 23 transition? A. Probably September was the first time I went there. Q. Okay. And I assume we can agree that the 24 transition ended at the time that President Trump, now 25 President Trump, took office as -Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 37 of 204 Page 55 1 Q. By who? 2 A. By Tom Hoffler. 3 Q. For what purpose? 4 A. Taxes. 5 Q. What would be the value of having block 6 7 8 9 level -A. Citizen age voting -- to ensure one person, one vote. Q. Can you explain, how -- how does having 10 block level citizenship voting age population data 11 ensure one person, one vote? 12 A. This is going to be a long explanation. 13 Q. That's fine. 14 A. Have you -- have you read through my 15 presentation on this? 16 Q. Yes. 17 A. You know which one it is? 18 Q. I think so. 19 A. You said to a federal judge that I -- that 20 there was no record of what I talked about with the 21 Secretary. 22 presentation to the Secretary, but you told a federal 23 judge that I didn't -- 24 MR. FELDMAN: 25 Q. And yet you're saying that you read my Just answer the question. (By Mr. Duraiswamy) I think he produced it Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 38 of 204 Page 56 1 in response to the subpoena we served after the 2 federal judge ordered the deposition. 3 4 A. No, actually it was in -- it was in the documents before. 5 6 7 8 9 MR. FELDMAN: Mark, answer -- answer his question. Q. (By Mr. Duraiswamy) In any event, can you explain what Mr. Hoffler said to you about why -A. No. Wait. No. You wanted me to explain 10 why I think that block level data is important to 11 citizen voting age population, or do you want it 12 explained why Tom Hoffler does? 13 14 15 Q. I'm trying to understand the conversations you had during the transition. A. So you said -- He said that after the long-form data went 16 away in 2000, that the quality of block level citizen 17 voting age population had now diminished. 18 so the ability to draw a district which would elect a 19 Latino in a population where there were non-citizens 20 was very, very difficult. So the -- 21 Q. He said that to you during the transition? 22 A. He -- we would have talked about it. I'm 23 not sure whether it was in the transition or after the 24 transition, but we would have talked about that issue. 25 Q. I'm trying to focus on in the transition Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 39 of 204 Page 57 1 right now. So you're not sure if you had that 2 conversation with him about that potential use of 3 citizenship data during the transition; is that right? 4 A. I'm not sure that I did. 5 Q. Okay. So I'm trying to understand, you 6 discussed potential uses of citizenship data gathered 7 from the decennial with others on the Commerce team or 8 Mr. Hoffler during the transition? 9 A. I would think so. 10 Q. Okay. 11 A. I -- I don't recall, but I would think so. 12 Q. Do you recall discussing the possibility And -- 13 that it could be used for immigration enforcement 14 purposes? 15 A. Oh, I -- I would never -- first of all, I 16 would -- that would be illegal, number one. 17 two, anyone that would suggest that or broach that to 18 me, I would immediately be totally opposed to that. 19 Q. I understand your view about that. Number Did 20 someone, in fact, suggest or broach that to you during 21 the transition? 22 A. No, no. 23 Q. Okay. I'm just -- I'm not asking for your 24 views, and I'm not even asking if you advocated for 25 it. I'm just trying to understand, did you have any Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 40 of 204 Page 58 1 conversations with anyone where the possibility, good 2 or bad, of using -- 3 A. Definitely -- definitely not. 4 Q. Let me just finish the question -- 5 6 MR. FELDMAN: Q. Let him finish the question. (By Mr. Duraiswamy) -- so the record's 7 clear -- of using citizenship data from the decennial 8 for immigration enforcement purposes came up? 9 A. No. 10 Q. Okay. Did you discuss, during the 11 transition, potential use of citizenship data from the 12 decennial for reapportionment purposes? 13 A. Citizenship, no. 14 Q. Did you discuss, during the transition, with 15 anyone, whether undocumented immigrants or 16 non-citizens should be included in the state 17 population counts for reapportionment purposes? 18 issue, generally. 19 you took, but did that issue come up in your 20 conversations? 21 A. 22 That I'm not asking you about a position Not -- not to my -MR. ROSENBERG: Objection, form. 23 A. Not to my recollection, no. 24 Q. (By Mr. Duraiswamy) Did the issue of how 25 states might use citizenship data from the decennial Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 41 of 204 Page 59 1 census in deciding how to draw legislative districts 2 come up in your conversations with Mr. Hoffler? 3 A. I don't believe so. Again, you know, when 4 you -- these are conversations long ago, but it -- 5 it -- I don't think so. 6 the kind of thing that he would talk about. 7 8 Q. Because it -- again, it's not Did it come up in your discussions with anyone else during -- 9 A. No. 10 Q. -- the transition? Are you aware of anyone 11 else involved with the transition or the Trump 12 campaign or the incoming Trump administration 13 discussing that issue during the transition? 14 15 16 17 18 A. I -- not personally, but I've heard that from reporters and other people. Q. Okay. What have you heard from reporters and other people? A. That those people -- that there were people 19 discussing it. 20 weren't discussing it with me." 21 22 Q. 25 Who have you heard was discussing that issue during the transition? 23 24 And I said, "Well, if they were, they MR. ROSENBERG: A. Objection, vague. Again, I don't have personal knowledge of -- because I didn't -- no one discussed it with me. Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 42 of 204 Page 64 1 2 name. So that was the one I was focused on. Q. I think I understand what you're saying. 3 You're saying the -- Steve Bannon's name, in 4 connection with this, came up recently for you in the 5 context of reviewing our subpoena. 6 it came up in the context of the other rumors -- You're not sure if 7 A. Right. 8 Q. -- that you heard about this issue? 9 A. Right. 10 11 MR. ROSENBERG: Q. Objection, vague and form. (By Mr. Duraiswamy) And sitting here today, 12 you can't remember any other individual names or 13 organizational names that came up in these rumors that 14 you heard recently? 15 MR. ROSENBERG: The same objection. 16 Q. (By Mr. Duraiswamy) Is that right? 17 A. That's -- yeah, that's correct. 18 Q. Okay. In your discussions with Mr. Hoffler 19 and folks on the Commerce team during the transition, 20 did you discuss how -- the potential process for 21 adding a citizenship question to the decennial census? 22 A. I'm not sure whether I would have -- that 23 probably would have come -- yeah, that probably would 24 have been something that we discussed. 25 Q. What kinds of discussions about that did you Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 43 of 204 Page 65 1 2 have? A. How -- I'm trying to remember here. I'm 3 trying to remember whether the issue of adding a 4 question about sexual orientation on the ACS was 5 something that came up before or after the issue of 6 citizenship. 7 Because that would have been sort of -- That's what I can't remember in my head. 8 Q. I'm -- 9 A. -- the last -- that was another issue that 10 was -- came up in the transition, was that advocacy 11 groups for the LGBTQ community wanted to add a 12 question about sexual orientation on the ACS. 13 that was something that we all -- also would have, I 14 think, discussed during the transition, was that 15 there -- you know, there -- 16 And The issue was are you going to add or change 17 questions to the decennial census questionnaire in 18 addition to the citizenship issue. 19 to, you know, change the relationship questions when 20 you say how was this person related, opposite sex 21 couple; again, I -- this is stuff that I haven't 22 looked at for a long time. 23 whether I was looking at -- at those, at that process 24 issue before or after the citizenship discussions. 25 Q. How are you going So I don't remember But that process issue, you're saying, would Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 44 of 204 Page 66 1 have been relevant to the addition of a citizenship 2 question and potentially other questions; is that -- 3 is that what you're -- 4 A. Yeah. Yeah. 5 Q. Okay. 6 A. Because obviously there was a -- there was 7 a -- a request in to -- from DOJ to Census about the 8 sexual orientation question addition. 9 again, it's -- it's hard for me to remember which 10 comes first, whether I was looking at that in the 11 context of the citizenship, or looking at that in the 12 context of how we're going to -- how the transition is 13 going to approach the sexual orientation issue. 14 Q. Okay. So you know, Other than what we've talked about, 15 did you come to learn during the transition that there 16 was anyone else who was interested in potentially 17 adding a citizenship question to the census? 18 A. I don't -- I don't -- I don't remember 19 specifically about which other -- I remember Tom 20 Hoffler for certain. 21 on Capitol Hill during the transition and meeting 22 people in early January. It might have come up when I was 23 Q. With whom do you think it may have come up? 24 A. I went to see the -- the counting of the 25 electoral count in the -- in the house chamber, so I Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 45 of 204 Page 67 1 would have run into a lot of people there. 2 Q. And -- 3 A. And some of them would have known Tom. So 4 they would have known that I was working on the 5 Commerce transition. 6 of Congress there. 7 where you go to a ceremony like that and you see a lot 8 of people, and they say, oh, yeah, I hear you're 9 working on the transition. So there would have been members Again, it's one of those things 10 And I think Willie Gaynor went with me to 11 that, and Willie knows a lot of people, so he would 12 have said, "Oh, yeah, Mark's working on census 13 issues." 14 people could have talked to me about it. 15 16 17 18 19 Q. So, again, that would have been a time that And do you recall who might have talked to you about it during that time? A. No. Because, again, there were lots of people and I -- it blurs in to other things. Q. Sitting here today, do you have an 20 understanding of whether there are particular members 21 of Congress who are interested in a citizenship 22 question being added to the census in 2020? 23 A. I haven't followed that. I didn't go to any 24 of the hearings with Secretary Ross when he testified 25 on the census. I didn't go to his confirmation Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 46 of 204 Page 89 1 2 question for 2020, correct? A. I'm saying they -- the department will need 3 to -- wait. 4 may request. 5 agency team, know they may request something that 6 affects your department. 7 8 Q. The question -- the Department of Justice So it's -- it's letting people, the And you're saying this is a possibility that could happen in the future, correct? 9 A. Right. 10 possibility. 11 Q. You don't know that it will. It's a And -- and certainly no one during the 12 transition told you that the Department of Justice was 13 going to do that, correct? 14 A. I'm not interacting with the DOJ team. 15 Q. Okay. 16 A. So unlike -- with Commerce and USTR, we're 17 interacting because we share authorities. 18 Commerce aren't sort of sitting down and saying, 19 "Okay. 20 what are we doing to affect you?" 21 Q. DOJ and What are you going to do to affect us, and So the possibility that the DOJ would 22 request the addition of the question for 2020, was 23 that something that you learned about from your 24 conversations with Mr. Hoffler? 25 MR. ROSENBERG: Objection, misleading. Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 47 of 204 Page 90 1 2 MR. FELDMAN: A. If you could answer. It would have been something that he 3 discussed, but I could have learned it from other 4 people too. 5 6 7 Q. (By Mr. Duraiswamy) Do you remember learning it from anyone else? A. I don't recall. Again, understand that 8 we're sitting in an open floor plan, and people are 9 coming to us, you know, a lot of people I didn't know 10 saying, "Oh, well, you know, what about this on export 11 controls? 12 meetings back and forth, a lot of -- lot of cooks in 13 the kitchen. 14 Q. What about this on trade?" And impromptu So you don't recall specifically anyone else 15 raising this issue, but this is an issue that likely 16 would have been raised in the discussions with 17 Mr. Hoffler, correct? 18 MR. ROSENBERG: 19 speculation. 20 A. Objection. It calls for Again, I -- there could have been people 21 that talked about it, but I don't recall those 22 conversations. 23 24 25 MR. DURAISWAMY: Brad, can I ask you to just limit your objections to the form, please? MR. ROSENBERG: I think that is a form Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 48 of 204 Page 100 1 MR. FELDMAN: 2 referencing Exhibit 2. 3 4 A. And by "this," he's Exhibit 2, yeah. May I point out something about -- 5 MR. FELDMAN: No. 6 THE WITNESS: Okay. 7 8 Q. (By Mr. Duraiswamy) Is there something that you would like to point out about the memo? 9 MR. FELDMAN: 10 A. Now you can point it out. On Page 7 you say -- it says, "The director 11 of the U.S. Census Bureau shall include questions to 12 determine U.S. citizenship and immigration status on 13 the long-form questionnaire in the decennial census." 14 This is clearly written by someone who isn't talking 15 to anyone who knows something about the census, 16 because there is no long form. 17 2000. 18 Q. It was eliminated in (By Mr. Duraiswamy) You testified earlier 19 that Mr. Hoffler had indicated to you that after the 20 ACS census CEDCaP data was no longer available at the 21 block level; is that right? 22 A. Correct. 23 Q. Did he suggest to you that prior to the ACS, 24 while the long-form questionnaire was in effect, that 25 citizenship data was available at the block level? Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 49 of 204 Page 101 1 A. That was the whole point of a one in six 2 household sample, is one in six gives you block level 3 data confidence that one in forty-three does not give 4 you. 5 6 Q. Are you confident of that, that during the period in which -- 7 A. That's my understanding. 8 Q. Okay. 9 10 MR. ROSENBERG: Q. Objection, form. (By Mr. Duraiswamy) Just to clean that up. 11 It's your understanding that while the long-form 12 questionnaire was in place, citizenship data was 13 available at the census block level and not just at 14 the census block group level? 15 A. That's my understanding. 16 Q. And is that based -- that understanding 17 based on your conversations with Mr. Hoffler or 18 anything else? 19 A. No, it's based on my experience with the 20 census as chairman of the monitoring board, as member 21 of the executive staff and as a chairman of the 2010 22 Advisory Committee. 23 Q. Okay. So we've talked about the transition. 24 I want to now talk about the post-transition period. 25 Can you identify everyone at the Department of Justice Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 50 of 204 Page 110 1 count everyone, and you can't subtract anyone from the 2 count. 3 4 Q. Do you have an understanding of whether there are -- well, strike that. 5 6 7 8 When was your conversation with John Gore about a citizenship question? A. It would have been after the summer, but well before the winter. 9 MR. FELDMAN: The summer of what year? '17? 10 A. 2017. 11 Q. (By Mr. Duraiswamy) How many conversations 12 about that issue did you have with him? 13 A. We -- we met one time. 14 Q. Where did you meet? 15 A. At a -- not at the -- not at a government 16 building. 17 we met like in the cafe around the -- around his 18 office. 19 Q. Could it have been in October of 2017? 20 A. Yeah, it could have been. 21 Q. Was anyone else present? 22 A. No one else was present. 23 Q. How did that meeting come about? 24 25 We met for coffee near -- near -- probably MR. ROSENBERG: I'm going to object. I just want to caution the witness that there's potential Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 51 of 204 Page 114 1 A. I don't know. 2 Q. I'm just looking for an approximation. 3 than an hour? 4 A. I doubt it was more than an hour. 5 Q. More than 30 minutes? 6 A. Probably. 7 Q. Okay. 8 More So roughly somewhere between 30 and 60 minutes? 9 A. I think so. 10 Q. You're aware that there was a letter sent by 11 the Department of Justice to the Commerce Department 12 in December 2017 regarding the addition of a 13 citizenship question to the census? 14 A. Yes. 15 Q. Did you have any involvement in the drafting 16 of that letter? 17 MR. ROSENBERG: 18 MR. FELDMAN: 19 A. Objection, form. If you know. Well, it -- again, I wasn't part of the 20 drafting process of the letter, but I'm sure that in 21 our -- I -- when I met with John Gore, I wanted to 22 show him what the Census Bureau said about why they 23 ask the ACS question. 24 25 Because, again -- MR. ROSENBERG: And I'm -- again, I'm going to object and instruct the witness not to answer the Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 52 of 204 Page 123 1 MS. BRANNON: 2 MR. ROSENBERG: Okay. -- of course, in the 3 Government be as -- as nimble as possible in meeting 4 and conferring and responding, and I imagine that we 5 could do so tomorrow. 6 MS. BRANNON: Okay. No, that makes sense. 7 So we will agree to that. There has -- and just to be 8 clear, the reason, there has been some meet and 9 confer -- meet and confer on related topics to this, 10 and a motion was filed today in the NYIC case. 11 I am just not familiar enough, and would want to 12 confer with my colleagues as to whether or not the 13 nature of the discussions that have come up at the 14 deposition today fall within that issue or whether it 15 is a new and separate issue. 16 meet and confer about that part with you as quickly as 17 possible before we would move forward without 18 revealing anything publicly. 19 20 MR. ROSENBERG: Q. And so We will certainly try to Thank you. (By Mr. Duraiswamy) Okay. Sorry for the 21 interlude. 22 information to Mr. Gore for purposes of the letter 23 that DOJ subsequently drafted regarding the 24 citizenship question? 25 A. So at that meeting you provided some Mainly the -- mainly a copy of the -- of the Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 53 of 204 Page 124 1 letter from the Obama Administration, Justice 2 Department, to the Census Bureau on the issue of 3 adding a question on the ACS. 4 Q. Right. There -- there were -- in the documents that 5 you produced, there were two such letters, I believe, 6 one from 2014 and one from 2016. 7 correct to you? Does that sound 8 A. Yeah. 9 Q. And you provided both of those? 10 A. Just -- I think probably just the 2016 one. 11 Q. Okay. 12 show -- 13 A. Modalities. 14 Q. Well, strike -- 15 And the purpose of that was to MR. ROSENBERG: And I'm going to interpose 16 an objection and again instruction to not answer again 17 on deliberative process privilege grounds. 18 19 Q. (By Mr. Duraiswamy) Well -- well, let me strike that and ask a -- a different question. 20 That document, if I'm recalling correctly, 21 has a chart of different demographic questions that 22 are asked on the ACS and an explanation of the 23 governmental uses of those questions; is that correct? 24 A. Yes. 25 Q. Okay. And you were providing that to Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 54 of 204 Page 125 1 Mr. Gore in order to explain the potential use of a 2 citizenship question on the decennial census as well? 3 MR. ROSENBERG: The same -- the same 4 objection and instruction not to answer on 5 deliberative process privilege grounds. 6 7 MR. FELDMAN: A. Go ahead. I wanted the -- John Gore, who was a 8 non-career person, to understand the modalities and 9 accepted process of the interaction between DOJ and 10 11 Census on census issues. Q. (By Mr. Duraiswamy) What was it about that 12 that you wanted him to understand? 13 MR. ROSENBERG: The same objection and 14 instruction not to answer on deliberative process 15 privilege grounds. 16 17 18 19 20 MR. FELDMAN: A. Go ahead. I wanted him to understand what had -- the previous interactions on additions of questions. Q. (By Mr. Duraiswamy) What about those interactions did you want him to understand? 21 MR. ROSENBERG: The same objection and 22 instruction not to answer on deliberative process 23 privilege grounds. 24 25 MR. FELDMAN: A. Go ahead. How that -- the normal procedures. Who at Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 55 of 204 Page 126 1 DOJ, when you're talking about census issues, talks to 2 Census and who they talk to. 3 Q. (By Mr. Duraiswamy) And the fact that in 4 adding questions to the ACS or the decennial census 5 questionnaire, the requests come from outside of the 6 Commerce Department to the Commerce Department where 7 there is a need for some other agency; is that 8 correct? 9 MR. ROSENBERG: Objection. The same 10 objection and instruction not to answer on 11 deliberative process privilege grounds and also an 12 objection to form. 13 14 15 16 17 18 MR. FELDMAN: understand the question. A. I communicated that requests for data to the Census from the administration come from agencies. Q. (By Mr. Duraiswamy) You agree that the census doesn't typically -- well, strike that. 19 20 Did he provide you any information at that meeting? 21 22 23 24 25 Go ahead and answer if you MR. ROSENBERG: Same objection and instruction not to answer on deliberative process -A. I don't know. MR. ROSENBERG: -- privilege grounds, unless the witness can answer that with a yes or no. Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 56 of 204 Page 136 1 A. No. 2 Q. James Sherk? 3 A. No. 4 Q. Have you spoken with Mr. Hoffler about this 5 6 issue since the transition? A. Tom was very sick, very sick. And, in fact, 7 I didn't know that he passed away. So Tom was really 8 kind of out of the picture. 9 Tom was not an -- did not appear to me to be an 10 adviser to the -- to the administration at all. And I also want to say, 11 Q. A separate question. 12 A. Yeah. 13 Q. And I'm not -- I didn't necessarily mean to 14 15 16 17 connect it. A. So I don't kind of see him as an intermediary for the administration. Q. No, I'm asking about Mr. Hoffler separately. 18 Did you -- I'm not sure that I got a clear answer to 19 the question. 20 him about a potential citizenship question since the 21 transition? Did you have any communications with 22 A. Tom Hoffler? 23 Q. Yes. 24 A. Oh, yes. 25 Q. How many times, roughly? Yes. Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 57 of 204 Page 137 1 A. It would be more than a couple, but it 2 wouldn't be more than a dozen. 3 talking about from January through -- through whenever 4 I last talked to him, which would have been maybe -- 5 I'm not even sure I talked to him in 2017. 6 7 8 9 10 11 MR. FELDMAN: A. And remember, we're 2017 or 2000 -- Or 2000 -- I'm not sure I talked to him since even May of this year. Q. (By Mr. Duraiswamy) And he -- what were the -- what was the substance of those conversations? A. Well, Tom and I are good friends, so I don't 12 know -- you know, I've known him for 30 years. 13 talked a lot about his cancer treatment. 14 lot about what he was going through. 15 about prayer. 16 conversations about what was going on in politics that 17 would bleed into our personal conversations. 18 19 20 Q. We We talked a We talked a lot So, you know, there would be And some of that was about the potential citizenship question on the 2020 census? A. It seemed like -- like it wasn't a topic in 21 the last -- in the last -- certainly the last six 22 months. 23 again, with someone like Tom that I'm a -- a good 24 friend of a long time, and with someone that I check 25 in with about their health, and there are not a lot of Again, hard for me to remember about -- Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 58 of 204 Page 138 1 people like that, so I don't -- I don't recall how 2 many times. 3 Q. Well, my question is -- well, I think you 4 mentioned before that you did have those conversations 5 since January 2017, but my question is just what was 6 the substance of your conversation about this issue, 7 about the citizenship question? 8 9 A. Well, he talked about how block level data was -- and, again, block level data is an obsession 10 with him, because block level data means that you can 11 draw the most accurate districts. 12 focus was always on block level data, and always on, 13 "Mark, you need to make sure that we take a good 14 census, that the administration doesn't skimp on the 15 budget," because a good census is good for what he 16 does. 17 Q. And so, again, his And he was the person that you principally 18 relied on for your understanding regarding the need 19 for block level citizenship data; is that right? 20 A. He was the one of the people that I -- 21 actually, Tom -- in talking to Tom, I knew that it was 22 going to be an issue that the department would 23 confront, because I knew Tom had the ability to get 24 members of Congress, who were important to the 25 administration, to pay attention to the issue. Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 You Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 59 of 204 Page 139 1 know, that's what -- again, in the transition, your 2 job is to forecast what's going to come across the 3 transom for the new administration. 4 Q. Did you speak with anyone else in Congress 5 or affiliated with a member of Congress about the 6 citizenship question since January of 2017? 7 A. I talked to -- you know, I talk to my own 8 member of Congress, Rodney Davis, all the time. 9 know, I see him at things. You I talk to people in the 10 Illinois delegation that I see at the University of 11 Illinois. 12 Congress, I talk to people in Congress who I've known 13 for a long time. 14 I -- I talk about lots of things with them. I -- again, to say did I talk to someone in I went to school with Peter Roskam. 15 Q. Sure. 16 A. Did I go and do a presentation in anyone's 17 18 19 20 office about this, no. Q. I was wondering if you talked to any of them about this issue? A. I'm sure that I talked to members of 21 Congress, including Democratic members of Congress 22 about this issue. 23 24 25 Q. And what do you recall them communicating to you about it? A. I recall Congressman Lacy Clay being upset Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 60 of 204 Page 142 1 suggested to you that block level citizenship data -- 2 strike that. 3 Has anyone ever suggested to you that having 4 access to block level citizenship data would be 5 helpful to Republican efforts in redistricting? 6 A. I'm sure someone has said that. 7 Q. Tom, presumably? 8 A. What he said is that it will help draw maps, 9 which will be acceptable as the maps that best provide 10 minority representation, and so therefore are not 11 challenged. 12 district, and because you don't have block level data, 13 someone says, well, you didn't draw a map that 14 maximized -- I use the word "maximized," Latino 15 representation based on their numbers. 16 don't have that block level citizenship data, what 17 you're doing is you're cheating the Latino community 18 out of representation at all levels of government. 19 20 Q. So the frustration is you keep drawing a That was the -- that was something that he suggested to you? 21 A. No, it was -- it was a conversation that we 22 had. 23 Latino representation to be maximized. 24 25 And when you My point about maximization is my word. Q. I want Have you done any research on the Voting Rights Act? Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 61 of 204 Page 143 1 A. I'm not an expert on the Voting Rights Act. 2 Q. Have you done any research on the Voting 3 4 5 6 7 Rights Act? A. I'm not an expert on it. I -- I read about the Voting Rights Act, yeah. Q. Do you have any expertise on the legal standard for Section 2 of the Voting Rights Act? 8 A. I'm not an expert on it. 9 Q. Have you relied on others for expertise on 10 11 12 13 14 15 the Voting Rights Act in Section 2 in particular? A. Yes. So I -- you know, when I -- when I study things, I look to people who are experts. Q. Okay. And who -- who have you looked to for expertise on those issues? A. Off the top of my head, I'd have to go back. 16 I'd have to go back and look at it. 17 one of the things that I was most interested in is 18 there was an amicus brief that was filed by five 19 census directors. 20 those census directors said is block level data is the 21 most important thing in end product in terms of 22 ensure -- ensuring accurate representation, and you 23 can only get block level data from the census. 24 didn't look at that until -- you know, until 2018. 25 Q. But I did -- I -- And those -- in a nutshell, what I Was Mr. Hoffler one of the people you relied Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 62 of 204 Page 144 1 on for expertise about the Voting Rights Act -- 2 A. I -- you -- 3 Q. I'm asking you. 4 A. Oh, okay. 5 Q. Was he one of the people? 6 A. No. 7 Q. Who -- who were the people? 8 Sorry. You said off the -- you'd have to go back and check, but -- 9 A. 10 recall. 11 Q. 12 relied on -- 13 A. I can recall looking at the cases -- 14 Q. -- for expertise on that issue? 15 A. -- and looking at what Justices of the 16 17 I'd have to -- I'd have to -- I don't You -- you can't remember anyone that you've Supreme Court said about it and looking at that. Q. Okay. Let's go back to if you recall 18 communicating with anyone else direct -- in the Trump 19 administration directly or indirectly about the 20 citizenship question, other than the people we've 21 already identified. 22 MR. FELDMAN: I'm not sure I understand. 23 Are you talking about was there anybody else other 24 than the people that have been discussed? 25 MR. DURAISWAMY: Yes. Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 63 of 204 Page 273 1 Q. And Mr. Davidson responds that he is on the 2 phone with you, and you're giving him a readout of a 3 meeting last week, correct? 4 A. I see that. 5 Q. Was that your meeting with John Gore? 6 MR. ROSENBERG: 7 in evidence. 8 A. 9 10 11 12 Objection, assumes facts not It calls for speculation. I don't know whether it's -- it would make sense, but I don't know. Q. (By Mr. Duraiswamy) Did you have a meeting with anyone else about a letter from DOJ? A. That -- that's why I said the -- the timing 13 seems like it's -- dovetails with what you and I were 14 discussing earlier. 15 Q. Right. Because the meeting with John Gore 16 was about the letter from DOJ regarding the 17 citizenship question, correct? 18 A. No, the letter -- the meeting with John Gore 19 was about the -- how Census interacts with the Justice 20 Department. 21 other people, not from me. 22 Again, this is a communication from two MR. ROSENBERG: And just -- just for the 23 record, again, we're going back to the substance of 24 the communications with Mr. Gore, which the Government 25 believes is covered by the deliberative process Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 64 of 204 Page 274 1 privilege, and so I would instruct the witness not to, 2 you know, provide any additional information regarding 3 that meeting. 4 5 MR. FELDMAN: answered the question, I believe. 6 7 Q. (By Mr. Duraiswamy) Well -- well, you had a phone call with Mr. Neuman -- strike that. 8 9 And subject to that, he's You had a phone call with Mr. Davidson around -- on or around October 8th, correct? 10 A. It -- it says that. 12 Q. Okay. 13 A. I don't recall that I did. 14 Q. No reason to believe it didn't happen, 11 15 I don't know that I did. correct? 16 A. I don't recall that it happened. 17 Q. Okay. No reason to believe that when 18 Mr. Davidson wrote on October 8th in an e-mail, "I'm 19 on the phone with Mark Neuman right now" that he was 20 lying? 21 A. I don't know the answer to that question. 22 Q. Okay. 23 24 25 You don't know whether he was lying or not when he wrote Secretary Ross on October 8th? A. I don't know what he did -MR. ROSENBERG: Objection. Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 65 of 204 Page 278 1 2 hours. Q. Okay. Do you remember that when we started 3 this deposition, we talked about the fact that if you 4 say that you don't recall something, when, in fact, 5 you do recall it, that that's false testimony? 6 remember that we talked about that -- 7 A. Yes. 8 Q. -- at the outset? Okay. Do you What do you recall 9 about the length of the phone calls or conversations 10 that you had with Mr. Davidson about the census over 11 the last couple of years? 12 A. I recall that I had some. 13 Q. And you have no recollection about how long 14 15 those calls were or those interactions were? A. Well, you said -- you asked me if I was -- 16 talked to him for four hours. 17 to anyone for hour hours in one phone call. 18 Q. No. I don't recall talking I'm asking you now approximately how 19 long were the interactions that you had with him 20 regarding the census. 21 22 A. 25 I -- I don't know. I don't recall how long they were. 23 24 Can you give me a range? [Marked Exhibit No. 18.] Q. Handing you what we've marked as Exhibit 18. We've got one copy for you guys. Take a minute to Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 66 of 204 Page 279 1 review this document and let me know if you've seen it 2 before. 3 A. I have seen it before. 4 Q. When did you see it? 5 A. I've seen versions of this before. 6 Q. When you say versions of this, what do you A. Well, something that starts out with John 7 8 9 mean? Thompson and then says reinstatement of the 10 questionnaire. I -- I've -- this is -- I recall 11 seeing something like this in different versions -- 12 Q. This is -- 13 A. -- at different times. 14 Q. Okay. And just so the record is clear, this 15 is a -- a draft of a letter from the Department of 16 Justice to the Commerce Department requesting the 17 reinstatement of a question on the 2020 census 18 questionnaire related to citizenship, correct? 19 20 A. Do we know that it's from DOJ? Oh, because it says -- 21 Q. Do you see the last line? 22 A. -- for doj.gov. 23 Q. Yes. 24 A. So what was the question again? 25 Q. So this is a draft of a letter from DOJ to Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 67 of 204 Page 280 1 the Commerce Department requesting a reinstatement of 2 a citizenship question on the 2020 -- 3 A. Right. 4 Q. -- census, right? 5 6 MR. ROSENBERG: Objection, form, assumes facts not in evidence. 7 A. I -- I -- I -- it seems to be that. 8 Q. (By Mr. Duraiswamy) Okay. 9 10 11 And when did you -- or who -- who provided you with versions of this draft letter? A. I'm not sure which version this is. Again, 12 I'm familiar with the letter. 13 original author is. 14 might have commented on it, but I'm not sure who 15 writes a first -- a first template, as it were. 16 What's interesting is when I look at this, it seems 17 like -- 18 19 20 And this being? This being the version that you're looking MR. FELDMAN: A. Exhibit 18. And I look at the letter that I first saw in 23 ProPublica. 24 letter that ultimately went from DOJ. 25 I at right now. 21 22 I'm sure that I looked at it. MR. FELDMAN: A. I'm not sure who the Q. This letter is very different than the (By Mr. Duraiswamy) Okay. In order to help Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 68 of 204 Page 281 1 us all get out of here on time, I'm going to ask you 2 try to -- 3 4 5 A. Oh, we're all going to get here on -- out of here on time. Q. Well, I want you -- in order to avoid the 6 risk of our having to come back and do more 7 questioning, I want to you to try to focus on just 8 answering the question -- 9 A. Right. 10 Q. -- that I've asked. So my question, you 11 stated that you had previously seen a version of this 12 draft, correct? 13 A. Correct. 14 Q. Okay. 15 A. And, again, there are people within the And I believe you said -- 16 Secretary's office who could have had a version, could 17 have had -- marked up their own version, could have -- 18 again, trying to figure out who an original author is 19 when this looks a little -- 20 21 MR. FELDMAN: Q. 22 23 (By Mr. Duraiswamy) Yeah. MR. FELDMAN: Q. The question -- Just -- (By Mr. Duraiswamy) I don't -- I don't 24 want -- I don't -- I'm not asking you to tell me about 25 who the original author was or anything. I want to Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 69 of 204 Page 283 1 the questionnaire, that they're following procedures. 2 This clearly doesn't look like the -- the letter that 3 actually went out, but it looks like almost a 4 placeholder, a template. 5 Q. When you say you want to make sure that if 6 the department has an interest in evaluating a change 7 in the questionnaire, you're referring to the -- the 8 Department of Commerce -- 9 A. Correct. 10 Q. -- correct? 11 A. Correct. 12 Q. Okay. And you recall that others at the 13 Department of Commerce were reviewing and offering 14 thoughts on draft versions of this letter? 15 A. I seem to recall that, yes. 16 Q. Who do you recall was involved in that 17 effort? 18 A. It might have been the general counsel's 19 office, and it might have been the policy office. 20 again, blurring a lot of those people, interactions 21 together, new people coming on board, Peter Davidson 22 coming on board, Earl being involved in policy 23 matters, people that work for Earl. 24 of cooks in the kitchen. 25 Q. And There are a lot Other than Mr. Davidson and Mr. Comstock, Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 70 of 204 Page 284 1 who you just mentioned, are there other specific 2 people that you recall being involved in that process? 3 A. Maybe -- 4 5 MR. ROSENBERG: testimony. 6 7 Objection, mischaracterizes MR. FELDMAN: A. Go ahead. Maybe Izzy Hernandez, maybe Sahra Park-Su. 8 You know, when I think of the policy people, they're 9 all sort of blended together, the general counsel's 10 11 people and so forth. Q. (By Mr. Duraiswamy) Do you recall any 12 specific comments or edits that you suggested to the 13 draft version of this letter? 14 15 16 17 A. I don't recall, but I'm sure that I made comments. Q. You just don't remember specifically what the comments were? 18 A. Right, right. 19 Q. Do you remember who you made the comments to 20 21 or who you provided the comments to? A. They would have been within that group of 22 people, and I would -- I would -- you know, when I say 23 general counsel, I -- I include James in that too. 24 Q. Okay. 25 A. And in this -Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case Document 648-1 Filed 08/03/19 Page 71 of 204 Exhibit 5 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 72 of 204 Page 1 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 - - - - - - - - - - - - - - -x 3 NEW YORK IMMIGRATION : COALITION, et al., : 4 : Plaintiffs, : 5 : v. : 6 7 Case No. : UNITED STATES DEPARTMENT : OF COMMERCE, et al., : 1:18-CF-05025-JMF : 8 Defendants. : - - - - - - - - - - - - - - -x 9 Friday, October 16, 2018 Washington, D.C. 10 11 12 13 Videotaped Deposition of: JOHN GORE, 14 called for oral examination by counsel for the 15 Plaintiffs, pursuant to notice, at the law offices of 16 Covington & Burling, LLP, One City Center, 850 Tenth 17 Street, Northwest, Washington, D.C. 20001-4956, 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 9:05 a.m., when 21 were present on behalf of the respective parties: 22 Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 73 of 204 Page 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 A P P E A R A N C E S On behalf of New York Immigration Coalition: DALE HO, ESQUIRE JONATHAN TOPAZ, ESQUIRE American Civil Liberties Union Foundation 915 15th Street, Northwest Washington, D.C. 20005 (202) 675-2337 dale.ho@aclu.org On behalf of Lupe Plaintiffs: DENISE HULETT, ESQUIRE MALDEF 1512 14th Street Sacramento, California 95814 (916) 642-6352 dhulett@maldef.org ERI ANDRIOLA, ESQUIRE Asian Americans Advancing Justice 1620 L Street, Northwest, Suite 1050 Washington, D.C. 20036 (202) 296-2300 On behalf of City of San Jose and Black Alliance for Just Immigration: JON M. GREENBAUM, ESQUIRE DORIAN L. SPENCE, ESQUIRE Lawyers Committee for Civil Rights Under Law 1401 New York Avenue, Northwest, Suite 400 Washington, D.C. 20005 (202) 662-8324 jgreenbaum@lawyerscommittee.org dspence@lawyerscommittee.org Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 74 of 204 Page 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 A P P E A R A N C E S C O N T I N U E D On behalf of Kravitz Plaintiffs: TINA M. THOMAS, ESQUIRE Covington & Burling, LLP One City Center 850 Tenth Street, Northwest Washington, D.C. 20001-4956 (202) 662-5083 tthomas@cov.com On behalf of the State of California: GABRIELLE D. BOUTIN, ESQUIRE (Via Telephone) California Department of Justice Office of the Attorney General 1300 I Street P.O. Box 944255 Sacramento California 94244-2550 (916) 210-6053 gabrielle.boutin@doj.ca.gov On behalf of Defendants: JOSH GARDNER, ESQUIRE REBECCA KOPPLIN, ESQUIRE ALICE LACOUR, ESQUIRE BRETT SHUMATE, ESQUIRE U.S. Department of Justice, Civil Division 20 Massachusetts Avenue, Northwest Washington, D.C. 20530 (202) 514-4522 VALERIE M. NANNERY, ESQUIRE ANDREW SAINDOM, ESQUIRE Office of the Attorney General for D.C. One Judiciary Square 441 Fourth Street, Northwest, Suite 600 South Washington, D.C. 20001 (202) 442-9596 valerie.nannery@dc.gov 22 Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 75 of 204 Page 4 1 2 A P P E A R A N C E S C O N T I N U E D On behalf of Defendants: DAVID DOREY, ESQUIRE 3 DAVID DEWHIRST, ESQUIRE U.S. Department of Commerce 4 1401 Constitution Avenue Northwest Washington, D.C. 20230 5 (202) 482-2000 6 Also Present: 7 Dan Reidy, Video Technician 8 9 10 11 12 13 14 15 16 17 18 Veritext Legal Solutions Mid-Atlantic Region 1250 Eye Street NW - Suite 350 19 Washington, D.C. 20005 20 21 22 Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 76 of 204 Page 5 1 2 3 4 C O N T E N T S EXAMINATION BY: PAGE Counsel for Plaintiffs Mr. Ho 11 Ms. Hulett 335 Mr. Greenbaum 414 5 6 GORE DEPOSITION EXHIBITS: * PAGE 7 Exhibit 1 E-mail Chain 22 Exhibit 2 Bloomberg Transcript of Gore 26 8 9 Testimony - 21 May 2018 10 Exhibit 3 Letter - 4 Nov 2016 47 11 Exhibit 4 Memo - 8 Sept 2017 58 12 Exhibit 5 E-mail Chain 79 13 Exhibit 6 E-mail Chain 95 14 Exhibit 7 E-mail Chain 101 15 Exhibit 8 E-mail Chain 105 16 Exhibit 9 E-mail Chain 110 17 Exhibit 10 E-mail Chain 115 18 Exhibit 11 E-mail Chain 125 19 Exhibit 12 E-mail Chain 132 20 Exhibit 13 E-mail Chain 135 21 Exhibit 14 E-mail Chain 138 22 Exhibit 15 E-mail Chain 142 Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 77 of 204 Page 6 1 2 3 GORE DEPOSITION EXHIBITS: * Exhibit 16 E-mail Chain PAGE 145 Exhibit 17 Letter - 12 Dec 2017 155 Exhibit 18 Screenshot from Census Bureau Website Map derived from Census Data on Census Bureau Website 178 Exhibit 20 Printout from DOJ Website 240 Exhibit 21 E-mail Chain 254 Exhibit 22 E-mail Chain 282 Exhibit 23 Fourth Privilege Log from DOJ in Response to Plaintiffs' Document Subpoenas 292 Exhibit 24 E-mail Chain 296 Exhibit 25 Exhibit 24 Attached Draft Letter 297 Exhibit 26 E-mail Chain 300 Exhibit 27 2020 Census Hearing Gore QFRs CRT Draft DOJ Office of Legal Counsel Opinion - 4 Jan 2010 300 Exhibit 29 E-mail Chain 311 Exhibit 30 Article 312 Exhibit 31 E-mail Chain 315 Exhibit 32 Memo - 19 Jan 2018 319 Exhibit 33 E-mail Chain 330 4 5 6 Exhibit 19 204 7 8 9 10 11 12 13 14 15 16 17 Exhibit 28 303 18 19 20 21 22 Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 78 of 204 Page 7 1 GORE DEPOSITION EXHIBITS: * PAGE 2 Exhibit 34 Census Citizenship Question 330 3 Exhibit 35 District Court Opinion in Reyes 349 versus City of Farmers Branch 4 Exhibit 36 5 Fabela versus City of Farmers 350 Branch 6 Exhibit 37 Negron versus City of Miami Beach 358 7 Exhibit 38 Campos versus City of Houston 362 8 Exhibit 39 E-mail Chain 365 9 Exhibit 40 E-mail Chain 369 10 Exhibit 41 E-mail Chain 371 11 Exhibit 42 E-mail Chain 398 12 Exhibit 43 E-mail Chain 403 13 Exhibit 44 Karlan Report 416 14 Exhibit 45 E-mail Chain 443 15 Exhibit 46 E-mail Chain 445 16 Exhibit 47 Gore Written Testimony 446 18 May 2018 17 18 19 20 21 * (Exhibits attached to transcript.) 22 Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 79 of 204 Page 137 1 letter from anyone else within the civil rights 2 division? 3 A. Not that I can recall. 4 Q. Other than Ms. Pickett, Mr. Aguinaga, and 5 Mr. Herren, did you receive input on the draft 6 letter from anyone else within the civil rights 7 division? 8 A. Not that I can recall. 9 Q. Sometime after you wrote the first draft 10 of this e-mail, you had a conversation with Peter 11 Davidson at the Department of Commerce, correct? 12 A. Yes. That would be correct. 13 Q. So sometime in November of 2017, you had 14 conversation -- you had a conversation with 15 Mr. Davidson about the citizenship question, 16 correct? 17 A. Yes. At some point I would have. 18 Q. How many conversations did you have with 19 Mr. Davidson in November of 2017 about the 20 citizenship question? 21 A. I don't recall exactly how many. 22 Q. What, if anything, did you communicate to Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 80 of 204 Page 150 1 was conveying there is that Mr. Gary didn't need 2 to work late on a Friday night during the holiday 3 season to send the letter out. 4 Q. So just so I understand the process here, 5 you had -- you first had communications about the 6 issue of a citizenship question sometime around 7 Labor Day of 2017, correct? 8 A. Give or take, yes, that's correct. 9 Q. You drafted the initial draft of the 10 letter to request the citizenship question 11 sometime around the end of October or early 12 November of 2017, correct? 13 A. Correct. 14 Q. The conversations to add the citizenship 15 question with the Department of Commerce were not 16 initiated by the civil rights division, correct? 17 A. Correct. 18 Q. And they were not initiated by the 19 Department of Justice, correct? 20 A. That's my working understanding. 21 Q. Around the time that you wrote the first 22 draft of this letter, you received input from Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 81 of 204 Page 151 1 three individuals: 2 Mr. Gary, correct? 3 4 5 A. Yes. Mr. Herren, Ms. Pickett, and And I may have received input from others as well. Q. Around the time of the first draft of the 6 letter in early November of 2017, who else did you 7 receive input from other than Mr. Herren, 8 Ms. Pickett, and Mr. Gary? 9 A. Mr. Aguinaga would have provided -- may 10 have provided some input. 11 discussions on -- regarding the letter generally 12 with Patrick Hovakimian, who at the time was 13 detailed to the Office of Associate Attorney 14 General, and with Jesse Panuccio in the Office of 15 the Associate Attorney General. 16 I would have had And I had various conversations with 17 others at various times throughout this process. 18 But I don't recall who else I would have spoken to 19 at that particular moment in time, around 20 November 1st of 2017. 21 22 Q. Okay. Around November 1st of 2017, the only career staff in the civil rights division Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 82 of 204 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, you received no subsequent edits from But after that first round of edits from Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 83 of 204 Page 153 1 people who were career staff in the civil rights 2 division, correct? 3 MR. GARDNER: Objection. Compound. 4 THE WITNESS: To the extent I understand 5 your question, I believe that's correct. 6 BY MR. HO: 7 Q. During this period when you were revising 8 the letter to request a citizenship question, you 9 had multiple conversations with legal staff at the 10 Department of Commerce, correct? 11 A. Yes. 12 Q. And the edits that you were receiving to 13 the letter from other DOJ personnel included 14 political appointees in the front office of the 15 Department of Justice and in the front office of 16 the civil rights division, correct? 17 A. I -- certainly that's correct with 18 respect to the leadership offices at the 19 Department of Justice. 20 receiving edits from the front office of the civil 21 rights division at that time after receiving the 22 edits from Ms. Pickett. I can't remember if I was Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 84 of 204 Page 154 1 Q. Who made the final decision to send the 2 letter requesting the citizenship question be 3 added to the 2020 census questionnaire? 4 5 6 7 A. I'm not sure I know. And I can't recall who communicated the final decision to me. Q. The letter was ultimately sent on December 12th, 2017 -- 8 A. Correct. 9 Q. -- correct? 10 A. Correct. 11 Q. Who gave the final signoff to put that 12 letter in the mail? 13 14 MR. GARDNER: Objection. Asked and THE WITNESS: I don't recall who gave the answered. 15 16 final signoff. 17 BY MR. HO: 18 Q. Was it you? 19 A. No, I don't believe I would have given 20 the final signoff. But maybe. I guess it depends 21 on what you're asking. 22 could press "send" on the e-mail? Like, who told Art Gary he I don't Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 85 of 204 Page 155 1 understand your question. 2 Q. Yes, that's my question. 3 A. I don't know. 4 Q. You don't know whether or not you did? 5 A. I don't recall whether it was me or 6 somebody else. 7 Q. All right. 8 A. It's possible it could have been me. 9 (Gore Deposition Exhibit 17 marked for 10 identification and attached to the 11 transcript.) 12 13 BY MR. HO: Q. I'm going to show you what's been marked 14 as Exhibit 17. This is a document in the 15 administrative record, the first page of which has 16 the number 000663. 17 December 12th, 2017, from Arthur Gary at the 18 Department of Justice addressed to Ron Jarmin at 19 the Census Bureau, correct? This is a letter stamped 20 A. Yes. 21 Q. And this is the letter we've been talking 22 It appears to be. about in which the Department of Justice Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 86 of 204 Page 409 1 prosecutions on that basis, at least at all 2 recently. 3 once that suggested there might have been one 4 decades ago, but I don't know that for sure. 5 Q. And I think I might have read something And just a few final questions. Have you 6 ever communicated in any way -- by phone, in 7 person, by e-mail, text -- have you ever 8 communicated about the citizenship question with 9 Kris Kobach? 10 A. No. 11 Q. Have you ever communicated in any of 12 those ways about the citizenship question with 13 Steve Bannon? 14 A. No. 15 Q. Have you ever communicated in any of 16 those ways about the citizenship question with 17 Stephen Miller? 18 A. No. 19 Q. Have you ever communicated with anyone at 20 the White House about the citizenship question? 21 A. Yes. 22 Q. Who? Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 87 of 204 Page 410 1 A. I communicated with John Zadrozny. 2 Q. And who is he? 3 A. Z-a-d-r-o-z-n-y, I believe, is how he 4 spells his last name. And at the time, he was 5 working, I believe, for the Domestic Policy 6 Council. 7 Q. And when did you communicate with him? 8 A. I believe it was sometime in October of 10 Q. Who initiated the contact? 11 A. I don't recall. 9 2017. What I recall about it 12 is that I participated in a conference call on the 13 issue on which Mr. Zadrozny -- in which 14 Mr. Zadrozny also participated. 15 16 Q. Conference call on the issue of adding the citizenship question? 17 A. That's correct. 18 Q. In October of 2017? 19 A. I believe it was October of 2017. 20 Q. Who else was on that conference call? 21 A. I can recall that other people from the 22 Department of Justice were on the call. Rachael Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 88 of 204 Page 437 1 not have authority or standing to assert such 2 constitutional claims. 3 has, in the past, gotten involved in racial 4 gerrymandering claims, either as an intervener or 5 as an amicus because frequently those claims 6 implicate districts that were drawn or preserved 7 to comply with Section 2 or Section 5 of the 8 Voting Rights Act, which the Department of Justice 9 does enforce. 10 Q. The Department of Justice So a citizenship question would not help 11 DOJ bring racial or partisan gerrymandering claims 12 because DOJ doesn't have jurisdiction to bring 13 them in the first place, correct? 14 A. That's correct, although it would 15 facilitate DOJ's participation in such cases if it 16 chose to participate for -- because, again, 17 particularly, racial gerrymandering cases can 18 implicate Section 2 and Section 5 districts where 19 CVAP data is not necessary. 20 Q. Prior to December 12th, 2017, did you 21 have any communication with anybody who was not a 22 federal employee at the time about having a Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 89 of 204 Page 438 1 citizenship question on the census? 2 A. Yes. 3 Q. Who? 4 A. I had a conversation with a gentleman 5 named Mark Neuman, who I believe was not a federal 6 employee at the time. 7 Q. Who is Mark Neuman? 8 A. I understand Mark Neuman to be a former 9 employee of the Census Bureau or the Department of 10 Commerce -- I'm not sure which one. 11 understood that he was advising the Department of 12 Commerce and the Census Bureau with respect to 13 this issue. 14 15 16 Q. And I And what was the substance of your conversation with Mr. Neuman? MR. GARDNER: Objection. Calls for 17 information subject to deliberative process 18 privilege. 19 20 I instruct the witness not to answer. THE WITNESS: Consistent with that instruction, I can't answer. 21 22 BY MR. GREENBAUM: Veritext Legal Solutions 215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830 Case Document 648-1 Filed 08/03/19 Page 90 of 204 Exhibit 6 Case Document 648-1 Filed 08/03/19 Page 91 of 204 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et Plaintiffs, V. (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants. DECLARATION OF JOHN GORE I, John Gore, pursuant to 28 U.S.C. 1746, declare under penalty of perjury as follows: 1. I am the Principal Deputy Assistant Attorney General in the Civil Rights Division at the US Department of Justice, a position I have held since July 28, 2017. I served as the Acting Assistant Attorney General for the Civil Rights Division from July 28, 2017 to November 5, 2018. As the Acting Assistant Attorney General, I was the senior management of?cial of the Civil Rights Division. As a part of my of?cial duties, I was responsible for the overall supervision of the Division?s enforcement of the federal statutes and regulations that fall within the Division?s purview, including the Voting Rights Act of 1965. The following statements are based upon my personal knowledge. These statements are provided in support of the Defendants? opposition to the motion for sanctions ?led by the New York Immigration Coalition in the above- captioned case. 2. As I have previously testi?ed, I prepared the December 12, 2017, letter to the Census Bureau from Arthur E. Gary, General Counsel of the Department of ustice?s Justice Management Case Document 648-1 Filed 08/03/19 Page 92 of 204 Division, requesting that a citizenship question be reinstated on the 2020 decennial census questionnaire (?the Gary Letter?). 3. I have never met, communicated with, or spoken to Dr. Thomas Hofeller. 4. Prior to May 30, 2019, motion for an order to show cause, I never saw, received, or reviewed the document that NYIC claims is a 2015 unpublished study by Dr. Hofeller. 5. I ?rst saw and became aware of the purported 2015 Hofeller study on May 30, 2019, when I reviewed motion for an order to show cause and accompanying press reports. I did not consult, refer to, or rely upon the purported 2015 Hofeller study in drafting the Gary Letter. Indeed, I was not even aware of the existence of the purported 2015 Hofeller study at the time I drafted the Gary Letter. 6. I received from Mark Neuman a draft letter concerning a citizenship question on the census questionnaire (?the Neuman Letter?), when I met with Mr. Neuman around October 2017. I had no further oral or written communications with Mr. Neuman after receiving the Neuman Letter from him, including during the time that I was drafting the Gary Letter. 7. The Neuman Letter was not a draft of the Gary Letter. 8. Prior to discovery in this case, I reviewed the Neuman Letter only once, shortly after receiving it from Mr. Neuman, and then placed it in a ?le folder in my of?ce along with other documents about the census. 9. I did not consult, refer to, or rely upon the Neuman Letter, or any other information provided to me by Mr. Neuman, in drafting the Gary Letter. Case Document 648-1 Filed 08/03/19 Page 93 of 204 10. I have no personal knowledge regarding who authored, reviewed, commented on, or contributed to the Neuman Letter. 11. During the time that I was drafting the Gary Letter, I had discussions with Peter Davidson and James Uthmeier in the Department of Commerce?s Of?ce of General Counsel about the citizenship question. I discussed with Mr. Davidson and Mr. Uthmeier the drafting and the timing of a letter from the Department of Justice to request reinstatement of a citizenship question on the census questionnaire. I also discussed with Mr. Davidson and Mr. Uthmeier the possible content of such a letter in general terms. I did not rely upon anything communicated by Mr. Davidson, Mr. Uthmeier, or anyone else at the Department of Commerce in drafting the Gary Letter. 12. I never provided any draft of the Gary Letter to Mr. Davidson, Mr. Uthmeier, or anyone else at the Department of Commerce. 13. I never received comments, feedback, or edits on any draft of the Gary Letter from Mr. Davidson, Mr. Uthmeier, or anyone else at the Department of Commerce. 14. My conversations with Mr. Davidson and Mr. Uthmeier all occurred over the phone, and I did not take any notes of those conversations. I did not exchange any written communications about the Gary Letter or its contents with Mr. Davidson, Mr. Uthmeier, or anyone else at the Department of Commerce prior to the letter?s transmission to the Census Bureau on December 12, 2017. 15. During the time I was drafting the Gary Letter, I participated in a single conference call with Department of Justice of?cials and one member of the White House Staff, John Zadrozny, Case Document 648-1 Filed 08/03/19 Page 94 of 204 concerning a citizenship question on the census. I had no oral or written communications with any other members of the White House Staff concerning a citizenship question or the census before the Gary Letter was sent to the Census Bureau on December 12, 2017. I did not share any documents concerning a citizenship question or the census with Mr. Zadrozny or anyone else at the White House, and did not rely upon anything communicated by Mr. Zadrozny or anyone else at the White House in drafting the Gary Letter. 16. Similarly, during the time I was drafting the Gary Letter, I participated in a single conference call with Department of Justice of?cials and several individuals from the Department of Homeland Security concerning a citizenship question on the census. I do not recall their names or titles. I had no oral or written communications with anyone else at the Department of Homeland Security concerning a citizenship question or the census. I did not share any documents concerning a citizenship question or the census with these individuals or anyone else at the Department of Homeland Security, and did not rely upon anything communicated by these individuals or anyone else at the Department of Homeland Security in drafting the Gary Letter. 17. During discovery in this case, I was asked to produce, among other things, hard copy documents in my possession that were responsive to Plaintiffs? Rule 45 subpoena directed to the Department of Justice. I provided a number of documents to counsel for the Defendants, including the Neuman Letter. At the time I produced these documents to counsel for the Defendants, I did not recall exactly where I had received the Neuman Letter. This is because I kept all of my hard- copy documents concerning the census in a ?le folder in my of?ce, and that folder contained documents from a number of sources, including materials I found on my own, the legal Case Document 648-1 Filed 08/03/19 Page 95 of 204 memorandum from Mr. Uthmeier, and the documents I received from Mr. Neuman. It is my understanding that all of the documents in this folder either have been produced in discovery in this case or were withheld as privileged. After Mr. Neuman produced the Neuman Letter in response to a separate Rule 45 subpoena, I realized that the document in my possession must have come from Mr. Neuman. 18. As a member of the Bar and an of?cial of the Department of Justice, I took with utmost seriousness my duties and obligations to comply with all requests for discovery in this matter to the full extent required by law, and as a witness in these proceedings to provide complete and accurate testimony. At no time, including during my deposition, did I withhold, direct anyone to withhold, or become aware that anyone had withheld documents or information required to be produced in discovery, except for documents and information withheld on grounds of privilege that were accounted for in Defendants? privilege logs or Defendants? counsel?s objections and instructions not to answer during deposition. I declare under penalty of perjury that the foregoing is true and correct. Washington, DC . August 2, 2019 John Gore Principal Deputy Assistant Attorney General United States Department of Justice Case Document 648-1 Filed 08/03/19 Page 96 of 204 Exhibit 7 Case Document 648-1 Filed 08/03/19 Page 97 of 204 From: Zadrozny, John A. EDPIWHD Sent: 2/21f2013 11:02:33 PM To: Lenihan, Brian (Federal) I: ll cc: Uthmeier, James (Federal) Hamilton, Gene {one} r; PM El; Sherk, James a. Subject: RE: Conversation Next Week Thanks, Brian. 12 From: Lenihan. Brian (Federal) Sent: Wednesday, February 21, 2018 5:52 PM To: Zadrozny, John A. EOPIWHO Cc: Uthmeien James {Federal} Hamilton. Gene <7 Shark: James B. EowwHo <5 Subject: Re: Conversation Next Week Monday afternoon is good on my end BJL via iPad On Feb 21, 2013, at 5:49 PM, Zadrozny, John A. PII wrote: James: If Brian is okay with it, I have no problem on waiting until you get back. I know this conversation is somewhat time- sensitive, though. I should be able to do Monday 2/26, working around some PCCs and a couple of other meetings. Does 4:00?5:00 pm. work for the group on Monday? If so, I can set logistics and send out a calendar appointment. {Also, lam addingJames Sherk.) 0011160 Case Document 648-1 Filed 08/03/19 Page 98 of 204 JZ From: Uthmeier, James {Federal} [mailtoPu Sent: Wednesday, February 21, 2018 5:00 PM To: Zadrozny, John A. EOPIWHO <1 I PH Lenihan, Brian (Federal) 4" Cc: Hamilton, Gene {beet-3 Subject: Re: Conversation Next Week HeyJohn, I can make a call work tomorrow but would prefer Monday if at all possible. Let me know - we might have some better updates at that time. Thanks, James On: 21 February 2013 20:36, ?Zadrozny, John A. 4 it? wrote: Brian: Let me know. I can track down a call?in number. 12 C: From: Lenihan, Brian {Federal} .. PII Sent: Wednesday, February 21, 2013 1:24 PM To: Zadrozny, John A. PH 14 Cc: Uthmeier, James {Federal} <3 Hamilton-gene (DAG) <93? Subject: Re: Conversation Next Week 0011161 Case Document 648-1 Filed 08/03/19 Page 99 of 204 I am checking to see ifJames can call in from abroad hrs} BJL via iPad On Feb 16, 2013, at 12:53 PM, Zadrozny, John A. Eowwao am pm it wrote: Brian, James, and Gene: I wanted to connect with the three of you about having that conversation we discussed at some point next week. Please let me know who else from your respective agencies needs to be in attendance. We will host. We have significant scheduling flexibility after next Tuesday 2/20, but as a starter suggestion, how about Thursday 2/22 from 11:00 am.- noon? Once we pin down time, I will send out a WAVES link and make other necessary arrangements. Please do not hesitate to call me if questions. John A. Zadrozny Special Assistant to the President Justice and Homeland Security Domestic Policy Council Executive Office of the President .q c- in 0011162 Case Document 648-1 Filed 08/03/19 Page 100 of 204 Exhibit 8 Case Document 648-1 Filed 08/03/19 Page 101 of 204 To: Uthmeier James (Federal; Pll} From: Zadrozny, John A. Sent: Wed 1131:2018 12. 48: 02 PM Impmance: Normal Subject: RE: pushing for citizenship question on census forms: report Received: Wed 1J31f2018 PM James: Apologies for missing your e-mail. lam literallyjust seeing this. i can talk today (Wednesday 1131] or Friday ZIZ, if you can. Tomorrow is a mess. Best window today {for the moment} is 11:00 am.- 2:00 pm. Also, if you don?t mind, i?d like to rope my new DPC colleague, Theo Wold, into our call {and our mutual subjects]. Theo is handling most of Zina?s old portfolio. He literally just started last week, JZ From: Uthmeier, James (Federal) [mailtoti Sent: Friday, January 26, 2018 8:53 AM To: Zadrozny, John A. 4 PH Subject: Re: pushing for citizenship question on census forrns: report oommseomsses Page 1 of 6 PX-581 Case Document 648-1 Filed 08/03/19 Page 102 of 204 John, Monday I'm open 1230-2 and after 4- An},r chance you're also Open for a brief call today? Let me know. Thanks, James Sent frOm my iPhone 01112111263013, arm? AM, Zadrozny,John A. EOP/wnol ?rwrotc: James: I hope all is well. Any chance we can chat census on Monday Let me know when works for you. JZ Page 2 of 6 Case Document 648-1 Filed 08/03/19 Page 103 of 204 From: Uthmeier James (Federal) [meat?o; Sent: Sunday) December 31 201?_ _30_ PM II To: Zadrozny, JohnA. i Subject: Re: Hillj?DOJ pushing for citizenship questionm on census ?forms: report The letter was not released by an},r political at DOC, so I assume it was leaked. Yes, we have connected with and plan to discuss with them as soon as possible. Happy New Year, James On Dec 3 I 2017, at [:46 PM, Zadrozny, John A. eowwnoi PII wrote: Works for me. Also, have you connected with yet on this? i talked to them on Wednesday 12f20 about this, and they sounded like the-IIr are anticipating this being a point of discussion in the New Year. Question: Was the letter released by politicals, or was it leaked? JZ Page 3 of 6 Case Document 648-1 Filed 08/03/19 Page 104 of 204 From:Uthmeier, James {Federal} [malltoepl?l Sent: Sunday, December 31, To: Zadrozny, John A. EOPIWHO Subject: Re: pushing for citizenship question on census for-ms: report Yep - propublica broke the story late Friday. They incorrectly cited that the question had not been asked since the 18005, which we had them correct. This will likely get attention and follow-up questions early next Week, so let?s plan to get together for a diSCUssion on Tuesday. hum-m -.-.-.- mum-mm; To: Uthmeier, James {Federal} Subject: FW: pushing for citizenship question on census forms: report FYI. John A. Zad rozny Special Assistant to the President Justice and Homeland Security Domestic Policy Council Executive Office of the President oommsoomsrm Page 4 of 6 Case Document 648-1 Filed 08/03/19 Page 105 of 204 From :Watts Brad [Judiciary? Rep) 1 Sent: Sunday, December 31, 2013 10: 21 To: Watts Brad [Judiciarv? Rep): PII Subject: pushing for citizenship question on census forms: report DOJ pushing for citizenship question on census forms: report BY JULIA MANCHESTER 1289!] 7 09:24 PM EST 794 2,243 The Department of Justice (DOJ) is asking the Census Bureau if a question on citizenship status could he added to 2020 census forms, according to a letter ?rst reported by ProPublica on Friday. The DOJ letter. dated Dec. 12. said including a question on citizenship would allow the the department to better enforce the Voting Rights Act. ?To fully enforce those requirements, the Department needs a teliable calculation of the citizen voting-age population in localities where voting rights violations are alleged or suspected," the letter said. Page 5 of 6 Case Document 648-1 Filed 08/03/19 Page 106 of 204 However, critics say including a question on immigration could prevent immigrants from participating in the census due to fears the government could use the information against them. The letter was drafted by Arthur Gary. a lawyer at the to Census Bureau of?cial Dr. Ron Jarmin. A spokesperson For the Census Bureau con?rmed the letter to ProPublica, saying the ?request will go through the well-established process that any potential question would go through.? The Hill has reached out to the Justice Department for comment. The letter comes after reports in recent months that the Trump administration plans to include an immigration-related question in the census. .comfhomenewst?admi nistratiout}66849?doivoushin e-for?citizenshi p~ouestion~on~ com_olseoo15703 Page 6 of 6 Case Document 648-1 Filed 08/03/19 Page 107 of 204 Exhibit 9 hm?: Te: Geore Dot 5 email address From: UthmelerCE??rd-I Document 648-1j Filed 08/03/19 Page 108 of 204 Sent: Wed 3I?28i2018 3. 07 AM Importance: Normal Subject: Fwd: Internal Census Talking Points Received: Wed 3f28i'2018 3:2?z08 AM 2018?03?26 [Eigdf ed? please see the attached talking points. Sent from my iPhene Begin femarded message: From: "Utltmeier James (FederHl)" T0="Zad102ny John A. ?013;r Who" PII i Subject: Internal Census Talking Points .- John- Here are the high level talking points. I'll have some more detailed to you soon. Thanks, James Fromzaockasg 'pH 8:57 PM Tm; Mercedea Schlapp's email address iNataIie Strom PII :Bradley Rateikei' Matthew 5 email address "S'L'I'Ei?tf?emg at'g" U.S. DEPARTMENT OF COMMERCE ANNOUNCES REINSTATEMENT 0F CITIZENSHIP QUESTION TO THE 2020 DECENNIAL CENSUS Case Document 648-1 Filed 08/03/19 Page 109 of 204 WASHINGTON Today, the US. Department of Commerce announced that a question on citizenship status will be reinstated to the 2020 decennial census questionnaire to help enforce the Voting Rights Act (VRA). Secretary Ross?s decision follows a request by the Department of Justice (DOJ) to add a question on citizenship status to the 2020 decennial census. Please click HERE to view the memorandum directing the Census Bureau to reinstate a question on citizenship to the 2020 decennial census. The citizenship question will be the same as the one that is asked on the yearly American Community Survey (ACS). Citizenship questions have also been included on prior decennial censuses. Between 1820 and 1950, almost every decennial census asked a question on citizenship in some form. Today, surveys of sample populations. such as the Current Population Survey and the ACS, continue to ask a question on citizenship. On December 12, 2017, DOJ requested that the Census Bureau reinstate a citizenship question on the decennial census to provide census block level citizenship voting age population (CVAP) data that is not currently available from government surveys. DOJ and the courts use CVAP data for the enforcement of Section 2 of the VRA, which protects minority voting rights. Having citizenship data at the census block level will permit more effective enforcement of the VRA, and Secretary Ross determined that obtaining complete and accurate information to meet this legitimate government purpose outweighed the limited potential adverse impacts. Congress delegated to the Secretary of Commerce the authority to determine questions to be asked on the decennial census. The Census Act requires the list of decennial census questions be submitted to Congress no later than March 31, 2018. Case Document 648-1 Filed 08/03/19 Page 110 of 204 Following receipt of the DOJ request, the Department of Commerce immediately initiated a comprehensive review process led by the Census Bureau, prioritizing the goal of obtaining complete and accurate data. After a thorough review of the legai, program, and policy considerations, as well as numerous discussions with Census Bureau leadership, Members of Congress, and interested stakeholders, Secretary Ross has determined that reinstatement of a citizenship question on the 2020 decennial census questionnaire is necessary to provide complete and accurate census block level data. CENSUS BUREAU HOLDING STATEMENT: Today, the US. Department of Commerce announced that a question on citizenship status will be added to the 2020 decennial census questionnaire to help enforce the Voting Rights Act. The Department of Commerce is focused on delivering the 2020 decennial questions to Congress by March 31 as is required by statute. The Census Bureau is looking forward to working with the Secretary and the Department of Commerce to conduct a complete and accurate 2020 census. Any questions regarding Secretary Ross's decision may be sent to pubiicaftairs?doc.qov. EP - LINE TALKING POINTS: Case Document 648-1 Filed 08/03/19 Page 111 of 204 Deliberative James Rockas Press Secretary Deputy Director of Public Affairs US. Department of Commerce I Case DocuMent 648-1 Filed 08/03/19 Page 112 of 204 . Case Document 648-1 Filed 08/03/19 Page 113 of 204 Exhibit 10 To: DiGiacomo Brian Federzag Tl?j? ?Uthmeier James Federal Cc: Creech [Gear-alt heady sr?wmb??eeaen? eat 3/19 ?age 114 (if 204 From: Robinson. Barry (Federal) Sent: Thur 4i20l2017 6:2?:42 PM Importance: Normal Subject: FW: summary Received: Thur 4f20f2017 6:27:43 PM Strunkaalifornia 2016 201? summarydocx Good afternoon: The attached file identifies the one open case brought against the Census Bureau challenging the constitutionality of its enumerative authorities and functions. AC PlDeIIberatIve Thanks Barry From:Me issa LCreech CTR) Sent: Thursday, April 20, 2017 To: Robinson, Barry (Federal) <2 5. Subject: Strunk summary I Melissa L. Creech Deputy Chief Counsel Office of the Chief Counsel for Economic Affairs U.S. Department of Commerce Telephone (301) 763-9844 Facsimile (301} 763-6238 Confidentiality Notice: This e-mail message is intended only for the named recipients. The information contained in this e-mail and any attachments may be confidential, privileged, attorney-work product, or otherwise exempt from disclosure. If you have received this message in error, are not the named recipient, or are not an employee or agent responsible for delivering this message to the named recipient, then be advised that any review, disclosure, use, dissemination, distribution, or reproduction of this message, its contents, or attachments is strictly prohibited. If you have received this e-maii in error, then please notify the sender and permanently delete the e-mail and any attachments immediately. Thank you. 70 Case Document 648-1 Filed 08/03/19 Page 115 of 204 Exhibit 11 Case Document 648-1 Filed 08/03/19 Page 116 of 204 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, e: at, Plaintiffs, v. 18-CV-2921 (IMF) UNITED STATES DEPARTMENT OF COMMERCE, et all, Defendants. DECLARATION OF JAMES UTHMEIER 1, James Uthmeier, pursuant to 28 U.S.C. 1746, declare under penalty of perjury as follows: 1. This declaration is provided in support of the Defendants? opposition to the motion for sanctions ?led by the New York Immigration Coalition Plaintiffs in the above-captioned case. The statements made herein are based on my personal knowledge. 2. From February 2017 to May 2019 I served in multiple capacities as a Senior Advisor and Counsel to the Secretary at the Department of Commerce. At all relevant time periods I provided legal counsel. 3. When I joined the Commerce Department in mid-February 2017, I used a Commerce Department email account to conduct of?cial business. As a Commerce Department of?cial I followed all policies and regulations regarding use of email to conduct of?cial business. As I explained during my transcribed interview with the House Oversight Committee staff, I likely used my Gmail account while serving in a volunteer capacity on the Presidential Transition Team. At Case Document 648-1 Filed 08/03/19 Page 117 of 204 no time during the 2016 presidential campaign or during the transition team work, or otherwise prior to my starting as an employee at the Department of Commerce, did I work on or discuss, in writing or otherwise, a census citizenship question. 4. In the spring of 201 7, after I had begun working at the Department of Commerce, the Commerce Secretary and other Commerce senior o?ioials asked me to look into the issue of a citizenship question. Subsequently, for several months thereafter I participated in a number of in- person brie?ngs and discussions on this and several other topics related to the Department. Transcribed Interview at 22. The purpose of some of these brie?ngs and discussions was to learn more about the census generally and the process for determining census questions speci?cally. During these brie?ngs and discussions, I received hundreds of pages of materials?including legal Opinions, agency correspondence, and many publicly available census documents?that made up the basis for the Administrative Record developed and produced in this case. No additional notes or materials were taken or received that were not produced. 5. As one of the preliminary steps I took in 2017 to learn about the census generally, including its scope and legal authorities and requirements, I spoke in person and by telephone to a friend, Professor John Baker. Professor Baker is a Constitutional law scholar who has taught over a dozen different subjects, mostly in the area of public law. I did not take notes on these conversations. 6. As I explained in my transcribed interview with the House Oversight Committee staff, I never received, reviewed, or provided any comments or feedback on any draft, advance copy, or other document purportedly to be sent from the Department of Justice to the Census Bureau Case Document 648-1 Filed 08/03/19 Page 118 of 204 requesting reinstatement of a citizenship question on the decennial census. Transcribed Interview at 99-100. This includes any documents purportedly drafted or handled by Mr. Mark Neun?lan, as well as any document(s) prepared or handled by Department of Justice officials. 7. I am aware that the Department of Justice sent a letter, dated December 12, 2017, to the Census Bureau requesting the reinstatement of a citizenship question on the 2020 decennial census. As I stated in my transcribed interview, I never received any advance copies, drafts, or other documents resembling that letter and I did not provide any comments or feedback on any such documents. Transcribed Interview at 146-147. 8. 1 am unaware of others in the Commerce Department receiving, reviewing, or otherwise commenting on drafts of the December 12, 2017'r DOJ letter, as well as any other draft letter prepared or handled by Mr. Neuman. I never saw or had any conversations with others in the Commerce Department about drafts or purported drafts of any letters until after litigation began in this case. 9. I am aware that Mr. Neuman made statements in his deposition in this case concerning his uncertain recollection about versions of a letter, and that I may have provided comments on a draft of a letter. Paragraphs 6-8 above represent a true and accurate account of events the letter to the best of my knowledge, information, and belief. 10. Prior to the NYIC Plaintiffs? motion for a show cause order, I was unaware of the late Dr. Thomas Hotelier, or what purports to be a 2015 study prepared by him concerning the use of citizen-voting?age population for purposes of congressional redistricting. I was also unaware of a one-paragraph document purportedly recovered from his ?les after his death that Case Document 648-1 Filed 08/03/19 Page 119 of 204 discusses compliance with the Voting Rights Act as a justi?cation for including a citizenship question on the census. 1 1. I have never met, spoken to, or otherwise communicated with Dr. Hofeller. 12. In 2017 I spoke to then-Acting Assistant Attorney General John Gore on several occasions about reinstatement of the citizenship question on the 2020 census. Those communications were conducted over the telephone, in person, or are otherwise re?ected in the Administrative Record, discovery, and the privilege logs produced this case. I did not take any additional notes of those conversations. 13. I have no recollection of speaking to anyone at the White House concerning the citizenship question until after the Department of Justice?s December 12, 2017 letter was leaked to the public, which occurred shortly after December 12. After December 12, I had oral communications with individuals in the White House and mitten conununications as re?ected in the Administrative Record, discovery, and the privilege logs in this case. 14. As a member of the Bar and as legal counsel to the Department of Cormnerce, I took with utmost seriousness my duties and obligations to respond to all requests for discovery in this matter, and to ?tmish documents and information required for inclusion in the administrative record, as required by law. I took equally seriously my obligation to ensure that my client responded as required to all discovery requests, and included the information required in the administrative record. At no time did I withhold, direct anyone to withhold, or become aware that anyone had withheld documents or information required in discovery, or for purposes of the Case Document 648-1 Filed 08/03/19 Page 120 of 204 administrative record, except for documents and infonnation withheld on grounds of privilege that were accounted for in Defendant's privilege logs. I declare under penalty of perjury that the foregoing 15 true and correct. aa 7 August 2, 2019 es Ut eierV Case Document 648-1 Filed 08/03/19 Page 121 of 204 Exhibit 12 Case 1:18-cv-02921-JMF Document 648-1 Case 1:18-cv-02921-JMF Document 254 Filed Filed08/03/19 08/15/18 Page Page122 1 ofof5204 Case 1:18-cv-02921-JMF Document 648-1 Case 1:18-cv-02921-JMF Document 254 Filed Filed08/03/19 08/15/18 Page Page123 2 ofof5204 Case 1:18-cv-02921-JMF Document 648-1 Case 1:18-cv-02921-JMF Document 254 Filed Filed08/03/19 08/15/18 Page Page124 3 ofof5204 Case 1:18-cv-02921-JMF Document 648-1 Case 1:18-cv-02921-JMF Document 254 Filed Filed08/03/19 08/15/18 Page Page125 4 ofof5204 Case 1:18-cv-02921-JMF Document 648-1 Case 1:18-cv-02921-JMF Document 254 Filed Filed08/03/19 08/15/18 Page Page126 5 ofof5204 Case Document 648-1 Filed 08/03/19 Page 127 of 204 Exhibit 13 Case Document 648-1 Filed 08/03/19 Page 128 of 204 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et a1, Plaintiffs, v. No. (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et al, Defendants. I DECLARATION I, Michael A. Cannon, make the following declaration pursuant to 28 U.S.C. 1746, and state that under the penalty of perjury the following is true and correct to the best of my knowledge and belief: I. I am the Chief of the General Litigation Division for the U.S. Department of Commerce, and my staff assisted in managing the document collection process for this litigation. As such, my staff and I oversaw the search, collection, review, and production of documents in this litigation. In the course of my duties, and through personal observation, and upon advice and representations from my staff as well as the Of?ce of the Chief Information Of?cer (OCIO) at the Department of Commerce and the Of?ce of Information Security (018) for the Census Bureau within the Department of Commerce, I con?rm the following facts set forth below. 2. As set forth in the declarations of Jean McKenzie (McKenzie Declaration), 1] 4, and Terri Ware (Ware Declaration), 1 5, I understand that in July 2019, OCIO and 018 conducted new searches of the governmental e-mail accounts for the Census and Commerce custodians identi?ed in those declarations for any communications about or including Hofeller by using the search terms and parameters described in those declarations. Those searches identi?ed a single email, which made no mention of a citizenship question, redistricting, or apportionment, and is not related to the decision-making process. Accordingly, no reSponsive documents were found based on this search. 3. As set forth in the Ware declaration, 1i 5, I understand that in July 2019, OCIO conducted new searches of the governmental e-mail accounts for the Commerce custodians identi?ed in that declaration for any communications about or including A. Mark Neuman by using the search terms and parameters described in that declaration. The results of those searches were turned over to agency counsel, and after being reviewed by my staff, it was determined that all of those communications had been identi?ed by previous searches in this litigation, and were either produced or withheld on the basis of privilege. Accordingly, this search did not result in the identi?cation of any new documents. 1 Case Document 648-1 Filed 08/03/19 Page 129 of 204 4. As set forth in the Ware Declaration, 1i 6, I understand that in July 2019, OCIO conducted new search of the governmental e-mail account for James Uthmeier for any communications with or about Professor John S. Baker conceming topics relevant to this litigation by using the search terms and parameters described in that declaration. The results of those searches were turned over to agency counsel, and a?er being reviewed by my staff, it was determined that none of those communications identi?ed by the search were sent by, sent to, or concerned Professor John S. Baker. v/W/M/gam?d? 8/2/20? Michael A. Cannon Chief, General Litigation Division Case Document 648-1 Filed 08/03/19 Page 130 of 204 Exhibit 14 Case Document 648-1 Filed 08/03/19 Page 131 of 204 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et al, Plaintiffs, v. No. (JMF) UNITED STATES DEPARTMENT OF COMMERCE, ct al, Defendants. DECLARATION 1, Jean McKenzie. make the following Declaration pursuant to 28 U.S.C. 1746, and state that under penalty of perjury the following is true and correct to the best of my knowledge and belief: Ii I am an IT Specialist and Special Assistant to the Division Chief in the O?ice of Information Security for the Census Bureau within the United States Department of Commerce (?Commerce?), and my staff assisted in managing the document collection process for this litigation. Agency counsel provided 018 with the names of custodians and lists of relevant search terms for each of the e-mail searches conducted within Commerce over the course of this litigation. OIS completed those searches and provided the results to agency counsel. 1n the course of my duties, and through personal observation, and upon advice and representations from my staff, I obtained information to eon?mi the following facts set forth below. 2. 018 conducted searches for all pertinent documents through the process normally employed by the Census Bureau in searching Census Bureau e-mails. 3. In August 2018, 018 received a request from Commerce agency counsel to conduct a search of the governmental e-mail account belonging to Christa Jones. The search was conducted for the period of January I, 2017 through March 26, 2018, for the following terms: [?citizenship? ?question or topic?] as both required in the email, or Justice" ?census or as both required in the email, and [?Citizenship? ?Census?] as both required in the email. The results of this search were provided to Commerce agency counsel. 4. In July 2019, 018 received a request from Commerce agency counsel to conduct a search of the governmental e-mail account belonging to Christa Jones. The search was conducted for the period of January 1, 2017 through March 28, 2018, for the following words and phrases: Hofeller, Hoefeller, Ho?er, Hof?er, proposal to use CVAP can be expected to provoke a high degree of resistance from Democrats?, and ?Our understanding is that data on I Case Document 648-1 Filed 08/03/19 Page 132 of 204 Case Document 648-1 Filed 08/03/19 Page 133 of 204 citizenship is speci?cally required to ensure that the Latino community achieves full representation in redistricting?. These searches yielded no results. Date: (111522 2 ?2 ga/Q 04m WOW JeaKMcKenzic, Esq, CISM, O?icc oflnfonnation Security US. Census Bureau U.S. Department of Commerce Case Document 648-1 Filed 08/03/19 Page 134 of 204 Exhibit 15 Case Document 648-1 Filed 08/03/19 Page 135 of 204 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et a1, Plaintiffs, v. No. (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et a1, Defendants. DECLARATION I, Terri Ware, make the following Declaration pursuant to 28 U.S.C. 1746, and state that under the penalty of perjury the following is true and correct to the best of my knowledge and belief: I. I am the Deputy Chief Information Of?cer within the Of?ce of the Chief Information Of?cer (OCIO) at the Department of Commerce (?Department?), and my staff assisted in supporting the document collection process for this litigation. Agency counsel provided OCIO with the names of custodians and lists of relevant search terms for each of the e- mail searches conducted within Commerce over the course of this litigation. OCIO completed those searches and provided the results to agency counsel. In the course of my duties and upon advice and representations from my staff, I obtained information to confinn the following facts set forth below. 2. OCIO conducted searches for all pertinent documents through the process normally employed by the Department in searching Department e-mails. A list of custodians, search terms used, and date ranges applied in the e-mail searches discussed below is attached as Exhibit A. 3. In August 2018, OCIO received requests from agency counsel to conduct searches of governmental e-mail accounts for the following custodians: Israel Hernandez, Brian Lenihan, and Kevin Manning. The results of these searches were provided to agency counsel. 4. In September 2018, OCIO received requests from agency counsel to conduct additional searches of governmental e-mail accounts for the following custodians: Secretary Wilbur Ross, Wendy Teramoto, Karen Dunn Kelley, Earl Cornstock, Peter Davidson, Michael Walsh, Israel Hernandez, James Uthmeier, Brook Alexander, Sally (Macie) Leach, Eric Branstad, Aaron Willard, Brian Lenihan, Sahra Park-Su, and David Langdon. The results of these searches were provided to agency counsel. 5. In July 2019, OCIO received a request from agency counsel to search the governmental e-mail accounts for the following custodians: Secretary Wilbur Ross, Earl Case Document 648-1 Filed 08/03/19 Page 136 of 204 Comstock, Peter Davidson, Michael Walsh, James Uthmeier, Israel Hernandez, Eric Branstad, Sally (Macie) Leach, Wendy Teramoto, Karen Dunn Kelley, Sahra Park-Su, David Langdon, Ellen Herbst, Aaron Willard, Austin Schnell, Brian Lenihan, and Kevin Manning. The searches were conducted for the period of January 1, 2017 through March 26, 2018, for the following terms: Hofeller, Hoefeller, Ho?er, Hof?er, ?Neuman? ?redistricting?, ?Newman? ?redistricting?, ?Neumann? ?redistricting?, ?Neumann? ?redistricting?, ?Neuman? ?apportionment?, ?Newman? ?apportionment?, ?Neumann? ?apportionment?, and ?Neumann? ?apportionment?. The results of these searches were provided to agency counsel. 6. In July 2019, OCIO received a request from agency counsel to search the governmental e-mail account for custodian James Uthmeier for the period of January 1, 2017 through March 26, 2018 for the following terms: [?baker? or ?professor?] ?citizenship?, [?baker? or ?professor?] ?redistn'cting?, [?baker? or ?professor?] ?apportionment?, and [?baker? or ?professor?] ?census?. The results of these searches were provided to agency counsel. 7. In July 2019, OCIO received a request from agency counsel to search the govemmental e-mail accounts for the following custodians: Secretary Wilbur Ross, Earl Comstock, Peter Davidson, Michael Walsh, James Uthmeier, Israel Hernandez, Eric Branstad, Sally (Macie) Leach, Wendy Teramoto, Karen Dunn Kelley, Sahra Park-Sn, David Langdon, Ellen Herbst, Aaron Willard, Austin Schnell, Brian Lenihan, and Kevin Manning. The searches were conducted for the period of January 1, 2017 through March 26, 2018, for the following phrases: proposal to use CVAP can be expected to provoke a high degree of resistance from Democrats? and ?Our understanding is that data on citizenship is Speci?cally required to ensure that the Latino community achieves full representation in redistricting?. These searches yielded no results. Date: Z?Zolc! . Terrl Ware Deputy Chief Information Officer Of?ce of the Chief Information Officer US. Department of Commerce Case Document 648-1 Filed 08/03/19 Page 137 of 204 Exhibit 16 Case Document 648-1 Filed 08/03/19 Page 138 of 204 15. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et 01., Plaintiffs, v. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE, er al. Defendants. DECLARATION OF CHRISTA JONES I, Christa D. Jones, pursuant to 28 U.S.C. 1746, declare under penalty of perjury as follows: 1. I have served as a career employee of the US. Bureau of the Census for more than ?fteen (15) years. At the start of the Trump Administration, I served as Senior Advisor to the Assistant Director for Research and Methodology, until my departure ?om the Bureau on May 27, 2017. I returned to the Bureau on February 20, 2018, where I assumed the position of Senior Advisor to the Census Bureau?s Deputy Director and Chief Operating Of?cer, Dr. Ron Jannin, who was then performing the nonexclusive functions and duties of the Acting Director of the Census Bureau. These statements are provided in support of the Defendants? opposition to the New York Immigration Coalition?s motion for sanctions in the above?captioned case. 2. Until his passing in August 2018, I was personally acquainted with Dr. Thomas Hofeller, whom I have known for many years. Since January 2017, I have had several telephone Case Document 648-1 Filed 08/03/19 Page 139 of 204 conversations with Dr. Hofeller concerning personal matters. To my knowledge, I did not exchange any written correspondence with Dr. Hofeller during this time. Also during this time, I do not recall having any discussion with Dr. Hofeller concerning the reinstatement of a citizenship question to the decennial census. 3. Prior to press reports earlier this year concerning the discovery of Dr. Hofeller?s unpublished 2015 study, I had never seen nor heard about that study. I had never discussed the contents of that study with Dr. Hofeller or with anyone else in connection with Secretary Ross?s decision to include a citizenship question on the 2020 decennial census. 4. Similarly, prior to this litigation, I had never seen a copy of a purported draft letter from the Department of Justice to the Census Bureau requesting a citizenship question (?the Neuman Letter?), or the one-paragraph document, allegedly created in 2017, that allegedly was retrieved from Dr. Hofeller?s computer and whose text appears in the Neuman Letter. 5. During the time Secretary Ross and his staff were drafting his March 2018 decision memorandum, I was responsible for collecting comments on those drafts from employees of the Census Bureau, such as Dr. Ron armin, Dr. John Abowd, and Enrique Lamas, and transmitting them to the Commerce Department. I was neither a primary dra?er nor contributor of comments to the Secretary?s March 2018 decision memorandum and did not play a central role in preparing that memorandum. Case Document 648-1 Filed 08/03/19 Page 140 of 204 6. At all times during my tenure with the Census Bureau, including following the Secretary?s issuance his decision memorandum in March 2018, I have concurred with the View of the Census Bureau that it was not advisable to include a citizenship question on the 2020 decennial census. Washington, DC August 2, 2019 Christa D. Tones/J Senior Advisor United States Census Bureau Case Document 648-1 Filed 08/03/19 Page 141 of 204 Case Document 648-1 Filed 08/03/19 Page 142 of 204 Exhibit 17 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 143 of 204 1 COMMITTEE ON OVERSIGHT AND REFORM, U.S. HOUSE OF REPRESENTATIVES, WASHINGTON, D.C. INTERVIEW OF: JAMES UTHMEIER Tuesday, June 11, 2019 Washington, D.C. The interview in the above matter was held in Room 6200, O'Neill House Office Building, commencing at 9:35 a.m. Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 144 of 204 2 Appearances: For the COMMITTEE ON OVERSIGHT AND REFORM: TORI ANDERSON, COUNSEL RUSSELL ANELLO, CHIEF OVERSIGHT COUNSEL SUSANNE SACHSMAN GROOMS, DEPUTY STAFF DIRECTOR AND CHIEF COUNSEL KATHLEEN TELEKY, PROFESSIONAL STAFF MEMBER CAROLINE NABITY, MINORITY COUNSEL STEVE CASTOR, MINORITY GENERAL COUNSEL TYLER SANDERSON, MINORITY COUNSEL ELLEN JOHNSON, MINORITY SENIOR PROFESSIONAL STAFF MEMBER For DEPARTMENT OF COMMERCE: DAVID DEWHIRST, ESQ. [VIA TELEPHONE] CORDELL HULL, ESQ. [VIA TELEPHONE] Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 145 of 204 90 Were you instructed or did you do anything else regarding the citizenship question after you provided the memo, and after you received this email asking for progress and provided a progress update email? A Did I do anything about -- Q The citizenship question? A With regard to the citizenship question? Q Yes. A Can you repeat that question? Q Sure. I'm sorry. You said earlier that you provided a legal memo to Earl Comstock and the Secretary. September. And then after that we talked about the emails that were sent in early And you said you remember providing an update email to the Secretary or a response to him asking for progress. Did you do anything after that time period with regard to the citizenship question? A Yes. Q What did you do? A I continued to collect information and receive counsel from Census officials as well as attorneys that worked on Census issues. And I would have had other conversations within the administration on the topic. Q Who did you have conversations with within the administration? A I consulted John Gore at the Department of Justice. Again, as I said earlier, I was referred to him as the Department's, you know, Voting Rights Act expert. at the time he was heading up the Office of Civil Rights at Justice. And I would have provided updates to individuals at the White House. Q I believe Who at the White House would you provide updates to? Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 146 of 204 92 the basis is? So you are just sort of refusing to tell us who you talked to at the White House, is that what we have, but without a reason? Mr. Dewhirst. Yeah, I don't know how much clearer I can be on this, Ross. But he's --yeah, he's instructed not to answer. Mr. Anello. Without a basis, it is just a clean instruction not to answer? Mr. Dewhirst. Mr. Anello. No, it is on the same basis. What is the basis for the instruction? Mr. Dewhirst. Mr. Anello. Executive branch confidentiality concerns. So the identity of the White House officials with whom Mr. Uthmeier spoke is something that you cannot tell Congress? Mr. Uthmeier, did you speak with Steve Bannon about this issue? Mr. Dewhirst. Mr. Anello. Same instruction to the witness. Did you speak with the chief of staff at the White House this time? Mr. Dewhirst. Mr. Anello. Same instruction. Did you speak to anybody at Domestic Policy Council? Mr. Dewhirst. Mr. Anello. Same instruction. Did you to Stephen Miller about it? Mr. Dewhirst. Mr. Anello. Same instruction. Did anybody at the White House tell you to pursue this issue? I haven't heard an answer or an instruction to that question. Did anybody at the White House tell you to pursue the issue of citizenship question? Mr. Uthmeier. No. BY MR. ANELLO: Q Okay. Did anybody at the White House express interest in the citizenship Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 147 of 204 93 question? A No different than interest in other ongoings at the Department. Communications made to the White House on this topic were in briefing nature, in update nature, coordination in keeping the White House apprised as I would do on any other topic. Q Did anybody at the White House express interest in the citizenship question issue question? Mr. Dewhirst. Beyond what Mr. Uthmeier has just answered, I am going to instruct him not to answer this question, same basis as before. BY MR. ANELLO: Q Well he already told us they did not tell him to do anything, but now, what is the difference between that question is something he can't answer, but expressing interest is something that he cannot answer? I am not sure I understand the basis there. A I did not receive any directives or direction from the White House on the topic of the Census citizenship question. Communications I made to the White House were of the nature that they were briefings and updates. Q Great. So it sounds like there should not be confidentiality issues then. So who did you brief? Mr. Dewhirst. Same instruction as before. BY MR. ANELLO: Q Was the White House involved in the decision to add a citizenship question? Did they play a role in that decision? A No, they did not. Q Okay. If they didn't play a role in the decision, then there is provided your Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 148 of 204 99 populations for the Census I think we probably spoke about the rate base undercount in every meeting or discussion we ever had. I talked to him about advertising and ways to develop new community groups through partnerships, and agreements to better get the word out about Census. And then I also asked him for background information on citizenship and other topics that are asked about on the Census. Q Did you have a particular reason for asking him -- is there a particular a reason that you went to him for information on citizenship? Mr. Dewhirst. Instruct the witness not to answer on the same basis articulated before. Mr. Anello. The question is did you have a reason to think he -- is there a reason you picked him as your source? I am not asking why you were motivated to ask about the citizenship question generally, I am asking why did you pick Mr. Neuman as somebody to ask? Mr. Dewhirst. Well, I can tell you this, I am going to assert -- I am going to provide the same instruction. I mean, even though you are trying to parse the question a certain way Ross, I think it still implicates the same interest. And so I am going to instruct the witness not to answer. BY MS. ANDERSON: Q You talked earlier before we took our break that -- and you said Mr. Neuman provided you documentation, some documents. Was one of those a draft letter from the Department of Justice to the Census Bureau requesting a citizen question? A No. Q Did he ever provide you with any draft language that would go into a letter from the Department of Justice to the Census Bureau asking for addition of citizenship question? Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 149 of 204 100 A No, not to my recollection, he never provided me anything like that. Q Did he ever provide you with legal research about adding a citizenship question to the 2020 Census? A No. He may have provided me some cases, case names or information on prior legal issues that face the Census Bureau during previous administrations, knowing that I was a new political counsel and would be working on Census issues. Other than cases and a brief overview of some of those litigation matters, no, no legal research. Q Did he ever provide you with any information about citizen voting age population data? A Yes. Q What did he provide you? A I do not recall specifically, but it would have been Census data, most likely public information. Q Did he ever provide any analysis or comments on that citizen voting age population data? Mr. Dewhirst. I am going to jump in and instruct the witness not to answer, that implicates the executive branch confidentiality and litigation interests. Ms. Anderson. Just to be clear, I was asking whether he provided that, not specifically what his analysis was at this point. Mr. Dewhirst. Okay. On that basis I will withdraw the instruction. Can you please ask the question one more time? BY MS. ANDERSON: Q Sure. Did Mark Neuman provide any comments, thoughts, opinions or analysis of citizen voting age population data? Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 150 of 204 120 sense about the amount of time you have left? Ms. Anderson. I think it is hard for us to put an exact number on it. that we need another two rounds. It could be It could be that we end in the next round. Sorry, it is a very lawyerly answer. Mr. Dewhirst. I would say that answer myself. Okay. Thank you very much. We will call back in 5 minutes. Ms. Johnson. Okay. Ms. Anderson. Thank you. [Recess.] Ms. Anderson. Okay. We can go back on the record, it is 3:54 p.m. [Uthmeier Exhibit No. 25 Was marked for identification.] BY MS. ANDERSON: Q Before we took our break on the majority side, Mr. Uthmeier, we were talking about your interactions with Mark Neuman, I would like you to look at exhibit No. 25. We will mark it as such here. Thomas Hofeller's drive. It is a copy of a Word document that came off of It says in quotes: "We note that in these two cases, one in 2006 and one in 2009, courts reviewing compliance with requirement of the Voting Rights Act and its application in legislative redistricting, have required Latino voting districts to contain 50 percent plus one of 'Citizen Voting Age Population,' or CVAP. It is clear that full compliance with these Federal Court decisions will require block level data that can only be secured by a mandatory question in the 2020 enumeration. Our understanding is that data on citizenship is specifically required to ensure that the Latino community achieves full representation in redistricting." Did you ever receive any documentation from Mark Neuman that contained this Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 151 of 204 121 wording or this information? A I do not recall ever receiving this document at all. You know, this seems to be the first time I am looking at it, so information contained herein I would have even gleaned from my own -- from my own research. Q And I would like you to also look at exhibit 24. And not to be confused, it is marked as exhibit 18, but we will mark it for our purposes as exhibit 24. [Uthmeier Exhibit No. 24 Was marked for identification.] Mr. Uthmeier. Okay. I have opened it up. I am looking at it now. BY MS. ANDERSON: Q Did Mr. Neuman ever provide you with this document or any part of this document? A No. Q Did you ever discuss with Mark Neuman why the Department of Commerce wanted -- or did you ever talk to Mark Neuman about whether he knew why Secretary Ross was interested in a citizenship question? A No. Q Did you ever discuss legislative apportionment or redistricting with Mark Neuman? A Not to my recollection. To the extent it doesn't just deal with ensuring majority, minority populations obtained fair representation. Q Did you ever discuss with Mark Neuman about how adding a citizenship question could affect participation of immigrants or noncitizens in the Census? A Can you repeat that question? Q Sure. Did you ever discuss with Mark Neuman about how adding a Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 152 of 204 137 citizenship question? Mr. Hull. Again, this is Cordell. had the discussion about this. And reiterating the bases on which we have But I will allow him to answer to the extent that he can answer within the parameters we have set out. Mr. Uthmeier. Yeah. As I have stated, I spoke with White House personnel. I am aware of at least, you know, a couple of other individuals that would have also spoken with the White House on this topic, always in a briefing capacity, providing updates, insuring that, you know, the executive branch is coordinated and that there are no surprises. When the DOJ letter was leaked, immediately there were press stories, there were -- there were allegations, things were misconstrued. And myself and other Commerce personnel provided -- you know, answered questions and provided briefings to other administration officials to explain, you know, what we were working on and just provide updates generally. Mr. Anello. Okay. Who at the White House did you brief about the citizenship question? Mr. Hull. And again, this is Cordell. Again, we have laid out the parameters on this, so I would instruct the witness not to answer. Mr. Anello. But I guess I don't understand. talk to, but he can't say who he did talk to? He is allowed to say who he didn't Is that what you're saying? Should we, like, read a list of everybody at the White House, and he can say no and then just not answer the people he did talk to? Mr. Hull. Mr. Anello, we are trying to provide accomodation to the committee. You asked about a certain number of people -Mr. Anello. The minority staff had unlimited number of people. I would like to Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 153 of 204 141 decision-making process. But it is also possible that he may have limited information about the role that they played. And the communications that he did have with the White House might be extremely material in helping us understand who at the White House was involved in these issues. So I don't think there is any question -- I am sorry -- I am going to finish now. I don't think there is any question that we have a legislative purpose. of surprise to hear you suggest otherwise. I am kind And I understand the instruction that you have made to the witness, which is not to answer the question. And I am happy for us to move on at this point. Mr. Dewhirst. I think we can move on. I think that is fine. [Uthmeier Exhibit No. 14 Was marked for identification.] BY MS. ANDERSON: Q If you could look at Exhibit 14. A 14? Q Yes. A I am sorry. Q Okay. 14. Give me just a minute. And it should be in the first email. Have you had a chance to review? A Yes, I have. Q Okay. It is an email from John Zadrozny on February 16, 2018, to you, Gene Hamilton, and -- it is blacked out, but Brian. And it says, quote, I want to connect with the three of you about having that conversation we discussed at some point this week. Why was he connecting the three of you? Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 154 of 204 142 A I do not recall. Q Was the conversation that he was referring to about the citizenship question? A I am not sure. I do not recall ever meeting with Gene Hamilton. know, if I may have had interaction with him and forgotten, I apologize. You But I am not even sure if this meeting took place. Q Do you remember speaking with John Zadrozny around this time? A I remember speaking with John on multiple occasions around this time, yes. I don't know if it was specific to this day. Q Okay. And you spoke with him about the citizenship question; is that correct? Mr. Dewhirst. answer. I am going to interpose an instruction of the witness not to That implicates the executive branch and litigation concerns, confidentiality and litigation concerns. Ms. Anderson. Was John Zadrozny -- Mr. Dewhirst. Dewhirst. Ms. Anderson. I am sorry. Mr. Dewhirst. That was Mr. Dewhirst. I am sorry, too. That is an awkward thing, but anyway. BY MS. ANDERSON: Q Was John Zadrozny one of the people at the White House that you did brief about the citizenship question issue? A Yes, among several other individuals. Q How many times did you brief him about the citizenship question? A I provided updates on a couple of occasions. I know I provided updates following this leak of the DOJ letter and several press stories that broke thereafter. But Case Document 648-1 Filed 08/03/19 Page 155 of 204 Exhibit 18 Case 1:18-cv-02921-JMF 648-1 08/03/19 156 204 Case 1:18-cv-02921-JMFDocument Document 189-1Filed Filed 06/21/18Page Page 1 of 1 001321 Case Document 648-1 Filed 08/03/19 Page 157 of 204 Exhibit 19 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 158 of 204 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK Civil Action No. 1:18-cv-05025-JMF NEW YORK IMMIGRATION COALITION, et. al, Hon. Jesse M. Furman Plaintiff, PLAINTIFFS’ FIRST SET OF REQUESTS FOR EXPEDITED PRODUCTION OF DOCUMENTS AND FIRST SET OF INTERROGATORIES TO DEFENDANTS UNITED STATES DEPARTMENT OF COMMERCE AND WILBUR ROSS v. UNITED STATES DEPARTMENT OF COMMERCE, et. al, Defendant. Pursuant to Federal Rules of Civil Procedure 33 and 34, by and through their attorneys of record, Plaintiffs request that Defendants, or those authorized to act on behalf of Defendants, respond to the following Interrogatories and Requests for Production of Documents and produce for inspection, copying and use all responsive documents requested herein. Documents should be produced by July 31, 2018 to the offices of Arnold & Porter Kaye Scholer LLP, 601 Massachusetts Avenue, N.W., Washington, D.C. 20001. Notwithstanding any definition set forth below, each word, term, or phrase used in these Requests is intended to have the broadest meaning permitted under the Federal Rules of Civil Procedure. As used in these Requests, the following terms are to be interpreted in accordance with the following definitions. DEFINITIONS 1. CENSUS BUREAU means the United States Census Bureau, including all regional offices and subdivisions of the Census Bureau, including any PERSON or PERSONS. 1 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 159 of 204 2. CITIZENSHIP QUESTION means a question posed by the CENSUS BUREAU inquiring as to a PERSON’s citizenship status. 3. COMMUNICATION or COMMUNICATIONS means any contact between two or more PERSONS (including any individual, corporation, proprietorship, partnership, association, government agency or any other entity) by which any information, knowledge or opinion is transmitted or conveyed, or attempted to be transmitted or conveyed, and shall include, without limitation, written contact by means such as letters, memoranda, e-mails, text messages, instant messages, tweets, social networking sites, or any other DOCUMENT, and oral contact, such as face-to-face meetings, video conferences, or telephonic conversations. 4. COMMERCE means the United States Department of Commerce and all of its component agencies, including the Census Bureau. 5. DECENNIAL CENSUS means the constitutionally mandated census that is administered every ten years by the Census Bureau to count the number of people residing in the United States. 6. DOJ means the United States Department of Justice, including any PERSON OR PERSONS currently or formerly employed by such agency since January 20, 2017. 7. DOCUMENT means any “document or electronically stored information— including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.” Fed. R. Civ. P. 34(a)(1)(A). 8. IDENTIFY means: a. When referring to a person, you shall set forth the following information: (i) Full Name; (ii) Present or last known residential address; (iii) Present or last known 2 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 160 of 204 telephone number; (iv) Present occupation, job title, employer and employer’s address; and (v) Occupation, job title, employer, and employer’s address at the time of the event or period referred to in each particular interrogatory. b. When referring to a document, you shall set forth the following information: (i) the nature (e.g., e-mail, letter, handwritten note) of the document; (ii) the subject line, title, or heading that appears on the document; (iii) the date of the document and the date of each addendum, supplement or other addition or change; (iv) identification of the author and of the signer thereof, and of the person on whose behalf or at whose request or direction the document was prepared or delivered; (v) identification of the addressee or recipient thereof, if any; and (vi) the present locations of the document, and the name, address, position or title, and telephone number of the person or persons having custody. c. When referring to an event, occurrence, act, transaction or conversation, you shall set forth the following information: (i) the date and place of such event; (ii) the persons involved; and (iii) a description of the event. 9. NEILSEN means Nielsen Media Research, and any PERSON OR PERSON employed by Nielsen Media Research, including Christine Pierce. 10. PERSON OR PERSONS means any natural person, firm, partnership, association, joint venture, public or private corporation, individual, proprietorship, governmental entity, organization, other enterprise, group of natural persons or other entity that has a separate legal existence. 11. OTHER GOVERNMENT AGENCIES means the DOJ, the United States Department of Homeland Security, the United States Department of State, and any other agencies of the United States Government, including any PERSON OR PERSONS currently or formerly employed by such agencies since January 20, 2017. 12. SECRETARY ROSS means Wilbur J. Ross, Secretary of COMMERCE. 13. TRUMP CAMPAIGN means any PERSON or PERSONS, organizations, or agents seeking the election or reelection of Donald J. Trump, including but not limited to employees of the presidential campaign committee, Donald J. Trump for President, Inc. 3 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 161 of 204 14. TRUMP ADMINISTRATION means President Donald J. Trump, Vice President Michael R. Pence, and any PERSON or PERSONS currently or formerly employed at, for, or within the Executive Office of the President and all of its components at any time since January 20, 2017. 15. The use of the singular form of any word shall include the plural and vice versa. 16. The connectives “and,” “or,” and “and/or” shall be construed either disjunctively or conjunctively as necessary to bring within the scope of the discovery request all responses which might otherwise be construed outside the scope. INSTRUCTIONS 1. The word “any” includes all and the word “all” includes any. 2. These Requests require the production of all responsive DOCUMENTS within the sole or joint possession, custody, or control of Defendants including, but not limited to, any such DOCUMENT or thing that is within the possession, custody, or control of any agents, agencies, departments, attorneys, employees, consultants, investigators, representatives, or other PERSONS or entities acting for, or otherwise subject to the control of, Defendants. 3. Defendants shall answer each Request and each part or subpart of a Request separately. Defendants shall leave no part of a Request unanswered merely because an objection is interposed to another part of the Request. If Defendants are unable to answer fully any of these Requests, after exercising due diligence to secure the information to do so, Defendants should so state, answer to the extent possible, specify Defendants’ inability to answer the remainder and provide or state whatever information is in Defendants' possession, custody, control, or knowledge concerning any unanswered portion. 4. If Defendants object to or otherwise decline to answer any portion of a Request, Defendants shall identify the portion of the Request to which they object or otherwise decline to 4 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 162 of 204 answer, state with particularity the reason for such objection or declination, and identify each PERSON or organization having knowledge of the factual basis, if any, upon which the objection, privilege, or other ground is asserted. 5. For any responsive DOCUMENT or portion thereof that is either reacted or withheld, in whole or in part, on the basis of any assertion of privilege or other asserted exemptions from discovery, identify each DOCUMENT so redacted or withheld. With regard to all DOCUMENTS or portions of documents redacted or withhold on this basis, identify: a. the type of DOCUMENT; b. the subject matter of the DOCUMENT; c. the date of the DOCUMENT; and d. such other information as is sufficient to identify the DOCUMENT, including, where appropriate, the author, addressee, custodian, and any other recipient of the DOCUMENT, and, where not apparent, the relationship of the author, addressee, custodian, and any other recipient to each other. 6. If Defendants refuse to provide any information requested herein on the ground that said information is protected from discovery by a privilege (including executive or deliberative privilege) or other protection (including work product doctrine), then Defendants shall: a. specify with particularity the nature of the privilege or other protection (including the work product doctrine) being claimed; b. provide a specific statement of the ground and authority on which Defendants rely in withholding information; 5 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 163 of 204 c. provide a statement setting forth each PERSON having knowledge of the factual basis, if any, on which the claim or privilege or immunity or other ground is based; and d. in the case of a DOCUMENT or COMMUNICATION, a privilege log, served at the time of production identifying the DATE, description, author (s), addressee(s), recipient(s), and subject matter and state the factual basis for the claim of privilege. 7. If any DOCUMENT has been lost, discarded, or destroyed, identify such DOCUMENT. State the type of DOCUMENT, its date, the approximate date it was lost, discarded, or destroyed, the reason it was lost, discarded, or destroyed, a summary of its substance, and the identity of each PERSON having knowledge of the contents thereof. 8. If any information contained in the requested documents is confidential, requiring secured transfer and management, Plaintiffs have the capacity through consultants to receive information through a Federal Statistical Research Data Centers. REQUESTS FOR PRODUCTION OF DOCUMENTS REQUEST FOR PRODUCTION NO. 1. All COMMUNICATIONS, including drafts and DOCUMENTS reflecting COMMUNICATIONS, regarding or relating to the inclusion of a CITIZENSHIP QUESTION on the DECENNIAL CENSUS, including but not limited to COMMUNICATIONS with or about the CENSUS BUREAU, OTHER GOVERNMENT AGENCIES, the TRUMP ADMINISTRATION, the TRUMP CAMPAIGN, NIELSEN, Kris Kobach, Steve Bannon, Stephen Miller, Andrew Bremberg, Steve King, Steven Camarota, Hermann Habermann, and Robert Groves. 6 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 164 of 204 REQUEST FOR PRODUCTION NO. 2. All DOCUMENTS, including drafts, regarding, relating, or concerning the inclusion of a CITIZENSHIP QUESTION on the DECENNIAL CENSUS, including but not limited to: (a) DOCUMENTS, analysis or data considered by (or reflecting information considered by) COMMERCE in proposing, evaluating, or analyzing the citizenship question, (b) DOCUMENTS analysis or data considered by (or reflecting information considered by) by ROSS in proposing, evaluating, or analyzing the citizenship question, or (c) DOCUMENTS, analysis or data generated by or relied upon by COMMERCE, the CENSUS BUREAU, or the TRUMP ADMINISTRATION in preparing ROSS’ March 26, 2018 memorandum. REQUEST FOR PRODUCTION NO. 3. All DOCUMENTS, including drafts, regarding, relating, or concerning the inclusion of a CITIZENSHIP QUESTION on the DECENNIAL CENSUS, including but not limited to: DOCUMENTS, data or analysis generated by or relied upon by the CENSUS BUREAU, COMMERCE, or the TRUMP ADMINISTRATION in preparing for Congressional testimony by ROSS, any COMMERCE, CENSUS BUREAU, or OTHER GOVERNMENT AGENCY employee related to the inclusion of a citizenship question on the DECENNIAL CENSUS. REQUEST FOR PRODUCTION NO. 4. All DOCUMENTS, including drafts, regarding, relating, or concerning the sufficiency of available data for federal enforcement of the Voting Rights Act, 52 U.S.C. 10101. REQUEST FOR PRODUCTION NO. 5. All DOCUMENTS, including drafts, discussing, regarding or relating to the sufficiency of administrative data necessary for the CENSUS BUREAU to create the citizenship data that DOJ requested in its December 2017 memo. 7 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 165 of 204 REQUEST FOR PRODUCTION NO. 6. All DOCUMENTS regarding or relating to changes or edits made by COMMERCE, the TRUMP ADMINISTRATION or OTHER GOVERNMENT AGENCIES to CENSUS BUREAU Quarterly Program Management Reviews since January 2017 regarding or relating to the inclusion of CITIZENSHIP QUESTION on the DECENNIAL CENSUS. REQUEST FOR PRODUCTION NO. 7. All COMMUNICATIONS and DOCUMENTS, including drafts, generated by, prepared by, relied upon by, referenced, or otherwise produced by COMMERCE, the CENSUS BUREAU, or the TRUMP ADMINISTRATION in conjunction with the documents found in the Administrative Record at 1277-1285, 1286-1297, 1298-1303, 1304-1307, 1308-1312, and 13131320. REQUEST FOR PRODUCTION NO. 8. All DOCUMENTS AND COMMUNICATIONS concerning the decision whether to include a Citizenship Question on the 2020 DECENNIAL CENSUS before December 12, 2017, including but not limited to, those related to whether to include citizenship as a subject in the March 2017 Report to Congress. REQUEST FOR PRODUCTION NO. 9. All DOCUMENTS and COMMUNICATIONS that Defendants plan to introduce into evidence at trial. INTERROGATORIES INTERROGATORY NO. 1. With regard to the document found in the Administrative Record at 1321, please IDENTIFY: 8 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 166 of 204 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. INTERROGATORY NO. 2. Please IDENTIFY all persons involved in drafting, commenting on, or approving ROSS’ March 26, 2018 memorandum. INTERROGATORY NO. 3. With respect to any Congressional testimony by ROSS or any COMMERCE, CENSUS BUREAU, or OTHER GOVERNMENT AGENCY concerning the inclusion of a question concerning citizenship on the DECENNIAL CENSUS, please IDENTIFY all persons involved in the preparation for such testimony. 9 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 167 of 204 Dated: July 12, 2018 By: /s/ John A. Freedman Dale Ho David Hausman+ American Civil Liberties Union Foundation 125 Broad St. New York, NY 10004 (212) 549-2693 dho@aclu.org dhausman@aclu.org Andrew Bauer Arnold & Porter Kaye Scholer LLP 250 West 55th Street New York, NY 10019-9710 (212) 836-7669 Andrew.Bauer@arnoldporter.com John A. Freedman David P. Gersch* Peter T. Grossi, Jr* R. Stanton Jones* Eric A. Rubel* David J. Weiner* Robert N. Weiner* Barbara H. Wootton* Elisabeth S. Theodore* Daniel F. Jacobson* Caroline D. Kelly+ Christine G. Lao-Scott* Jay Z. Leff+ Chase R. Raines+ Dylan S. Young+ Arnold & Porter Kaye Scholer LLP Massachusetts Avenue, N.W. Washington, DC 20001-3743 (202) 942-5000 John.Freedman@arnoldporter.com Sarah Brannon+ ** Davin Rosborough** Ceridwen Cherry* American Civil Liberties Union Foundation 915 15th Street, NW Washington, DC 20005-2313 202-675-2337 sbrannon@aclu.org drosborough@aclu.org ccherry@aclu.org Arthur N. Eisenberg Christopher T. Dunn Perry M. Grossman New York Civil Liberties Union Foundation 125 Broad St. New York, NY 10004 (212) 607-3300 601 aeisenberg@nyclu.org cdunn@nyclu.org pgrossman@nyclu.org Samer E. Khalaf* American-Arab Anti-Discrimination Committee 1705 DeSales Street, N.W., Suite 500 Washington, DC 20036 202-244-2990 skhalaf@adc.org Nicholas Katz* CASA de Maryland 8151 15th Avenue 10 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 168 of 204 Hyattsville, MD 20783 (240) 491-5743 nkatz@wearecasa.org + admitted pro hac vice. * designates pro hac vice application forthcoming. ** Not admitted in the District of Columbia; practice limited pursuant to D.C. App. R. 49(c)(3). Attorneys for Plaintiffs 11 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 169 of 204 CERTIFICATE OF SERVICE The undersigned hereby certifies that on July 12, 2018, the foregoing was served on counsel for Defendants United States Department of Commerce and Wilbur L. Ross and on the United States Attorney for the Southern District of New York by email and first class mail. By: /s/ John A. Freedman 12 Case Document 648-1 Filed 08/03/19 Page 170 of 204 Exhibit 20 Case Document 648-1 Filed 08/03/19 Page 171 of 204 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK NEW YORK IMMIGRATION COALITION, at Plaintiffs, v. No. (IMF) UNITED STATES DEPARTMENT OF COMMERCE, at at, Defendants. SUPPLEMENTAL RESPONSES TO 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 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 Interrogatogy 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 of?cials? who ?previously raised? reinstating the citizenship question first raised this subject with SECRETARY ROSS or with and e. all PERSONS with whom, to the knowledge of COMMERCE and SECRETARY ROSS, the ?senior Administration of?cials had previously raised? reinstating the citizenship question. Case Document 648-1 Filed 08/03/19 Page 172 of 204 Objections: Defendants object to this interrogatory to the extent that it seeks communications or information protected by the attorney?client privilege or communications or information protected by the deliberative-process privilege. Defendants further object to this interrogatory as vague and overbroad to the extent it seeks information about meetings or conversations with government of?cials 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 of?cials,? ?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 discussed the citizenship question with Secretary Ross, had raised or discussed whether to reinstate a citizenship question, or 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 nonetheless for Case Document 648-1 Filed 08/03/19 Page 173 of 204 the sake of completeness. Lastly, the Defendants cannot con?rm that the Secretary spoke to Steve Bannon regarding the Citizenship Question. However, since the current Administrative Record indicates that Mr. Bannon was attempting to put Mr. Kobach in touch with the Secretary, the Defendants are also listing Mr. Bannon for the sake of completeness. With respect to Interrogatory 1, subparagraphs a, d, and e, as re?ected in the Administrative Record, Secretary Ross discussed the possible reinstatement of a citizenship question on the 2020 decennial census with Attorney General Sessions in August 2017. In addition, it is possible that the two had an additional discussion concerning this issue, and although the date of that conversation is unknown, Defendants believe it took place earlier in 2017. Case Document 648-1 Filed 08/03/19 Page 174 of 204 As to Interrogatories, see Veri?cation page 2'11 m. As to objections: Dated: August 30, 2018 JOSEPH H. HUNT Assistant Attorney General BRETT A. SHUMATE Deputy Assistant Attorney General JOHN R. GRIFFITHS Director, Federal Programs Branch CARLOTTA P. WELLS Assistant Director, Federal Programs Branch Kate Bailev KATE BAILEY GARRETT COYLE STEPHEN EHRLICH CAROL FEDERIGHI Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, DC 20530 Tel: (202) 514-9239 Email: kate.bailey@usdoj.gov Cammlfor Defendant! Case Document 648-1 Filed 08/03/19 Page 175 of 204 CERTIFICATION QF EARL COMSTOCK I certify under penalty of perjury that the foregoing supplemental response to Plaintiffs? Interrogatory No. 1 is true and correct to the best of my knowledge, information, 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: September 5, 2018 Earl Comstock Case Document 648-1 Filed 08/03/19 Page 176 of 204 Exhibit 21 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 177 of 204 IAOTSTAC 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------x 3 STATE OF NEW YORK, et al., 1 4 Plaintiffs, 5 v. 18 Civ. 2921 (JMF) 6 7 UNITED STATES DEPARTMENT OF COMMERCE, et al., Conference 8 Defendants. 9 10 ------------------------------x 11 NEW YORK IMMIGRATION COALITION,et al., 12 Plaintiffs, 13 v. 18 Civ. 5025 (JMF) 14 15 UNITED STATES DEPARTMENT OF COMMERCE, et al., 16 Defendants. 17 18 ------------------------------x 19 New York, N.Y. October 24, 2018 2:35 p.m. 20 21 22 23 Before: HON. JESSE M. FURMAN, District Judge 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 1 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 178 of 204 IAOTSTAC 1 2 3 4 5 6 APPEARANCES NEW YORK STATE OFFICE OF THE ATTORNEY GENERAL Attorneys for Plaintiffs BY: MATTHEW COLANGELO ELENA S. GOLDSTEIN - and ARNOLD & PORTER KAYE SCHOLER BY: DAVID P. GERSCH - and AMERICAN CIVIL LIBERTIES UNION FOUNDATION(DC) BY: DALE E. HO 7 8 9 10 UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch Attorneys for Defendants BY: KATE BAILEY CARLOTTA A. WELLS ALICE LACOUR 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 Case 1:18-cv-02921-JMF Document 648-1 Filed 08/03/19 Page 179 of 204 IAOTSTAC 1 MR. GERSCH: Yes, your Honor. 38 I don't believe the 2 identity of the lawyers is attorney-client privilege, and I 3 don't believe that you can make facts disappear under the 4 attorney-client privilege by telling them to a lawyer. 5 it's fairly evident someone drafted this. 6 administration officials raised this before the secretary 7 considered it is not some trivial detail. 8 might have been accidently dropped into the memorandum -- which 9 no one claims, by the way -- I think would not be credible at 10 11 I think The idea that senior The notion that that all. Someone drafted this, they drafted it because they 12 were told by someone that senior administration officials 13 raised this, and all we want, your Honor, since there's no 14 other way to find out, is to have the persons who are 15 responsible for that language identified and to have them 16 identify or disclose the basis for saying that. 17 they were told that by someone. 18 MS. BAILEY: It's clear Your Honor, it is correct that you can't 19 obscure facts by telling them to an attorney, but that's not 20 what we are seeking to do. 21 the Department of Justice on this matter, period. 22 THE COURT: We have provided all facts known at I think on the basis of those 23 representations, I don't think there's anything further that I 24 can or should order. 25 who drafted it is not necessarily privileged information, but I agree that the identity of the person SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Case Document 648-1 Filed 08/03/19 Page 180 of 204 Exhibit 22 Case Document 648-1 Filed 08/03/19 Page 181 of 204 March 21, 2018 BRIEFING MEMORANDUM FOR SECRETARY ROSS FROM: Census Bureau EVENT: Census Stakeholder Call A. Mark Neuman Former Chair National Advisory Committee DATE: March 22 20l8 TIME: Within l2:00 12:45 PLACE: Secretary?s Suite BIOGRAPHY A. Mark Neurnan is an expert on international trade and Retail industry issues. Secretary of Agriculture Dan Glickman appointed Ncuman as a member of the National Cotton Board . He also serves on the Policy Council of the National Retail Federation and the Board of Directors of the United States Association of Importers of Textiles and Apparel Neuman, a native of Champaign, IL. was appointed by Senate Majority Leader Trent Lott to the Census Monitoring Board. Neuman is the only member, out of 8 members of the Monitoring Board to have worked as a Census Bureau employee during a Decennial Census. From 1989 to 1991, Ncuman served on the executive staff of the US. Census Bureau, where he was the agency's highest ranking Hispanic of?cial. Ncuman served under Director Barbara Everitt Bryant as Director of Congressional Affairs. From 1991-1992, Neuman served as Director of Legislative Affairs and lntergovemmental Affairs for the Bureau of Export Administration at the U.S Department of Commerce. Neuman served in the White House during the second Reagan Administration as the Associate Director of Political Affairs and also worked on Capitol Hill as an aide for Representative Crane CONTEXT AND PURPOSE On December 18, 2017, the US. Department of Justice faxed a cepy of its letter to the US. Census Bureau requesting to reinstate the citizenship question on the 2020 Census questionnaire. The Commerce Department is required by law to submit the proposed final list of questions to Congress by March 31, 2018. This is an opportunity to hear first-hand stakeholder views on this matter as the Census Bureau and the Department of Commerce continues to conduct its review of the request. SUGGESTED TALKING POINTS Dellberatlve fir?pension Case Document 648-1 Filed 08/03/19 Page 182 of 204 Citizenship Questien on 2020 Census Questionnaire Case Document 648-1 Filed 08/03/19 Page 183 of 204 Exhibit 23 Citizen Voting Age Po- ulation Data (CVAP) is ieededmgg engage 0R1 PERSON 0 NE March 22, 2018 Case Documert648?1WFl-iled 08/03/19 (301023?r The only way to ACCURATEW collect blocks-level CVAP data is te RESTORE a question about citizenship to the 2020 Decennial Census, esteem? eese, tee see? tees seistsists ease assesses we; te effest??aefe assesses-seesaw? see teases- same-semis as see testes? gasses, After the 2020 Census, v.5. legislative districts will be redrawn as part Of the new]: CVCIE. is this person a citizen of the United States? Yes, born in the United States SKIP to Without CVAP data: ques?on 10,, 6 Legislative districts will be drawn to encompass large Yes, bong in Puerto Rico, Guam, the numbers of Latino residents, BUT many of those 0.3. Tim? ESEands' or No?her" Mananas residents will likely be ineligible to vote, mostly due to Efsp?a33;?samad 0f mm? parent their non?oitizen status. Yes, US. citizen by natutaiization - Print year - Because of the high number of residents who are ,Of "amalgam? 7 ineligible to vote, these districts will be UNLIKELY to elect a Latino representative, thereby the NC, 55, a 0.3. citizen Latino community?s voice in public office. I: .. With CVAP data; The snapshot'a ove was talten from the . . 2016 American Comrnunitvt Survey. '3 By restoring 3 Citizenship question to the 2020 Decenmal Currently! the 2020 Decenmal ms does notinclude 3 Census, block-ievel CVAP data can be used to help draw up question regarding citizenship or naturalization. legislative districts that accurately reflect the Latino voting population. - Thus achieving the vital goal of 0N5 PERSGN GNE VOTE. source: 0010238 Case Document 648-1 Filed 08/03/19 Page 185 of 204 There are 3? 10 of those 37 Districts are reoresented by NGN raring majority .35 Congressional Districts with a LATINO BUT Vincente Gonzalez Lucille Royhal-Allard i0] Filomon Vela am ?flitoarfar?iili} .. Honda Calilornia Texas California Florida California (a Fomia fallfornia New York Arizona Ileana Ros-lehtinen Henry Cuellar Mario Dzaz-Balart David Valadao {it} .ioaquin Castro Norma Torres Cari-cs {Urbain {Fl} Luis Gutierrez Nanette BarraganlLD} Juanj-fargag nu ?nus. TonyEardenas Jose Serrano Ruben Gallego (Di Lou Carma Districts with Blatk Majority 58% 56915 5696 55% 54% 53% 53% 53% 52% 51% 62% Terri Sewoll 63% Cedric Richmond Hank Johnson 61% John Lewis 53% Dwight Evans 64% David Scutt 58% lim Clyhurn 59% Brenda Lawrence 9% 55% Vacant [formerly john Conversl Sennia Thompson 63% Hakeem Jaffrie-s 55% Elijah Cummings 52% Marcia Fudge 66% Alcee Hastings 53% Anth any Brown 61% Donald Payne Jr. 51% 5a nlord Bishop 5296 Bobby Rush Case 1 Frederica Wilson - The LACK of biotku?l?uel Citizen Voti Population data for LATENO-majority Congressional Distritts suggests that Rubin} the result has been a diminution of Latino Darren SctalDl . . representation in Congress. 3 population l.a1inofBlarlc mpolatio .r?h 0010239 Document 648-1 Filed 08/03/19 Page 186 of 204 ietims comprise 11% of the DC pepulation. WHY then ie there NOT ONE Latino cm the 13mmember City Ceuncil? ietinos cemprise 11% of the DC pepuiation But the ward lines have been drawn to Latino voting power. 1. . There are NO WARDS - with a Latino majority* Latina Residents 25-50% 3* 59% 3&0 Lararmaticn as oi the 2010 Census . . . ., .. . a - - y?vf?tx??t; Ly ?um-ax urt: Li .T1: 151-, f?t?f'ue - mere are E?i?i} Meme ee meme; ?it-Large Cou nciimember {Sou nci lmembe Anita Bonds David Groseo ?it-Large Large Cauncilmember Councilmember . ed?E??rbEf [Ward 1} Elissa Silverman C- Jr. Brianne Nedeau Councilmember (Ward 3} [View Cheh 1 ouncilmember [Ward 2} cl: Evans cgunciimember Cauncilmember Councilmember Councilmember {Ward 5} {Ward 5} [ware Ir} {Ward 8} Kenyan Mc?u?ie Charles Allen Vincent Gray Trayon White 0010240 Case Document 648-1 Filed 08/03/19 Page 187 of 204 The Latino population of is now LARGER (by a quarter millionl than the Black population (2.1 vs. 1.9 million). Why are Latinos so in Congress, the State House, State Senate, and Chicago City Council? ?se {sf easae masses ?e as fees as? we tea Having block?level CVAP data would facilitate drawing legislative districts where Latino cenciidates could have a fair shot at being elected to office. out of Illinois? 20 Members of Congress is BLACK Rep. Bobbym Rush Rep. Robin Kelly Rep. Danny Davis 00m: of lilinms? 20 Members of Congress is LATINO Rep. Luis Gutierrez out of Hil?ois? SEQ-Member State Senate 55 MENU. out 59-Member State Senate is BLACK out of Illinois? lift?Member State Hoese of Representatives is LATINO out of lliinois? 118~Member State House of Representatives is BLACK Source: '3 _33' "?133; ?31. 955+: "l'IDFu-n' {1'59 0010241 Case Document 648-1 Filed 08/03/19 Page 188 of 204 Chieege, 11 waf?e have majerityg then are ii ef werde represented by Chicag? 3385 11 iati?wmai?riw wards ef ?ee ?ee BUT a of these wards are represented i, weenie my by Ward 14: Ward 13: Ward 1i): Ward 33: 88% Latino 72% letinn 63% Latino 54% Latino Ed Burke Marty Quinn Susan Sadlowski Deb Meii Garza Letinee are the LARGEST mineritv greup in Chicago yet they are UNQERREPRESENTED in the City Ceuneil. Chicago?s City Council has 50 seats. - LATINO Ceuncilmembers comprise LESS THAN A QUARTER (12/50). The lack of CVAP data DIMINISHES the VOTING POWER emf-Latinos in Chicago, DESPITE being the dominant minority group. 0010242 Case Document 648-1 Filed 08/03/19 Page 189 of 204 Case Document 648-1 Filed 08/03/19 Page 190 of 204 Exhibit 24 Case Document 648-1 Filed 08/03/19 Page 191 of 204 From: Sent: 8:33:22 PM To: Amweuman? Suhject: Re: Questions re Census Mark, Thanks again for the discussion and helpful information. Regards, James On Sep 13, 201?, at 1:21 PM, A Neuman _rote: Note to James Uthmeier From: A Mark Neuman Subject: Census 2020 James -- I appreciate our discussions about the 2020 Census preparations. On Sep 13, 2017, at 12:19 PM, Uthmeier, James (Federal) - wrote: 0011329 Case Document 648-1 Filed 08/03/19 Page 192 of 204 Hey Mark?just following up on this, sorry for not getting back to you sooner. Any chance you are free to chat soon today? Would be much appreciated. My cell is From; Uthmeier, James (Federal) Sent: Friday, September 08, 201? 8:46 AM Subject: Questions re Census Hi Mark, I am working on _nd ther asked me to reach out to you about some research that have been doing. Any chance you might have a few minutes this morning to discuss? I?m available all morning at the number below, or happy to give you a call whenever convenient. Thank you, James jamcs W. Uthmeier Senior Counsel to the General lCounsel chul?rort' Reforl?n UF?cor Dcpul?rmcn ('3t'111?1111c1?cc 0011330 Case Document 648-1 Filed 08/03/19 Page 193 of 204 Exhibit 25 Case Document 648-1 Filed 08/03/19 Page 194 of 204 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, at at, No. 1:18?cv?2921 0MP) Plaintiffs, UNITED STATES DEPARTMENT OF COMMERCE, 31? a1, Defendants. NEW YORK IMNIIGRATION COALI- No. 0MP) TION, er al, Plaintiffs, UNITED STATES DEPARTMENT OF e: 511., Defendants. Case Document 648-1 Filed 08/03/19 Page 195 of 204 DECLARATION OF ALBERT E. FONTENOT. JR. I, Albert E. Fontenot, Jr., make the following Declaration pursuant to 28 U.S.C. 1746, and state that under penalty of perjury the following is true and correct to the best of my knowledge and belief: 1. I am the Associate Director for Decennial Census Programs at the Census Bureau. I have served in this capacity since October 2017. Before that, I served as the Assistant Direc- tor, Decennial Census Programs. 2. In connection with my job responsibilities I am thoroughly familiar with this litiga- tion brought by the plaintiffs. The following statements are based upon my personal knowledge or on information supplied to me in the course of my professional responsibili? ties. 3. The purpose of these statements is to provide the court with a current status of the Census Bureau?s efforts to print questionnaires to be used in the 2020 Decennial Census. 4. On July 2, 2019, the Census Bureau directed its primary printing contractor RR Don? nelly, Inc., (?printer?) to begin the physical production of the 2020 Census questionnaires. Due to the Supreme Court?s decision in Department a New Yank, the Bureau di? rected the printer to produce questionnaires without a citizenship question. 5. As of 12:00 pm Eastern Time, July 12, 2019, the printer had completed 11,572,746 questionnaires without the citizenship question included in the questionnaire. The printer is continuing to print at their planned production rate Without the citizenship question. 6. I have not received instructions from anyone to pause, cease, or otherwise suspend the printing of the decennial census questionnaires that RR Donnelly is currently printing. Case Document 648-1 Filed 08/03/19 Page 196 of 204 7. The printing requirements for the decennial census are massive, and under the con? tract the printer is required to pn'nt, stitch and compile, ?nish, and mail more than a billion individual products. The most serious operational risks of the census print contract are time, printer capacity, and print material availability. 8. Based on discussions between employees of the Bureau and the printer, the Bureau and the printer concluded that due to the printer?s resource and timing constraints and the terms of the contract, which was awarded December 2018, the latest possible date to ?nalize the printed decennial questionnaire without substantially modifying the decennial schedule, budget, and operations, and therefore jeopardizing the operational feasibility of the census, was the end of June. 9. I understand that the President directed the Departments of Justice and Commerce to examine whether, after and in consideration of the Supreme Court? 3 decision in qua?mmt @?Cammeme, there was a viable avenue to ask a citizenship question as part of the 2020 Cen? sus. In view of that directive, the Department of Commerce and Census Bureau evaluated the contractual, operational, and mission effects of conducting a decennial census that asks a citizenship question. 10. In order to ensure that: all options were properly considered, the Census Bureau eval- uated whether there were extraordinary measures available to direct the printer to re-start physical production of questionnaires which would include a citizenship question at some later date. The Bureau has concluded that option is not viable to keep the Census on track. Any delay in printing the census questionnaire would signi?cantly increase operational risk and could result in harm to the decennial operational design, leading to risks that could negatively impact the Bureau?s ability to administer a complete and accurate de? cennial census. Case Document 648-1 Filed 08/03/19 Page 197 of 204 11. For these reasons, the Census Bureau will continue printing questionnaires without the citizenship question. The Census Bureau is unaware of any continuing efforts to include a citizenship question on the 2020 Census. 12. To reiterate, prior discussions between employees of the Bureau and the Bureau?s primary printer resulted in the conclusion that due to the printer?s resource and timing con? straints and the terms of the contract, the latest possible date to ?nalize the printed decennial questionnaire without substantially modifying the decennial schedule, budget, and opera? tions, and therefore jeopardizing the operational feasibility of the census, was the end of June. That was true then, and remains true now. of? Albert E. tenot, Jr. Associate ir tor, Decennial Census Programs Bureau of ensus Case Document 648-1 Filed 08/03/19 Page 198 of 204 Exhibit 26 Case Document 648-1 Filed 08/03/19 Page 199 of 204 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, et al. Plaintiffs, v. 18-CV-2921 (JMF) UNITED STATES DEPARTMENT OF COMMERCE, et (11., Defendants. DECLARATION OF PETER DAVIDSON I, Peter Davidson, pursuant to 28 U.S.C. 1746, declare under penalty of perjury as follows: 1. I am the General Counsel of the United States Department of Commerce, a position I have held since August 2017. As General Counsel, I am the legal advisor to the Secretary of Commerce and the Department?s Chief Legal Of?cer. The following statements are based upon my personal knowledge and best recollection. These statements are provided in support of the Defendants? opposition to the motion for sanctions ?led by the New York Immigration Coalition in the above-captioned case. 2. I have never met, communicated with, or spoken to Dr. Thomas Hofeller. 3. Prior to May 30, 2019, motion for an order to show cause, I never saw, received, or reviewed the document that NYIC claims is a 2015 unpublished study by Dr. Hofeller. 4. I ?rst saw and became aware of the purported 2015 Hofeller study after May 30, 2019, when I reviewed motion for an order to show cause and accompanying press reports. I Case Document 648-1 Filed 08/03/19 Page 200 of 204 was similarly unaware of other documents that purportedly were retrieved from the computer of Dr. Hofeller, such as the 2017 draft paragraph that discusses the Voting Rights Act. 5. I was unaware that A. Mark Neuman, who served as an informal adviser to the Commerce Department, had in his possession a draft letter concerning a citizenship question on the census questionnaire (?the Neuman Letter?), until sometime after the litigation in this case began and the document was produced during discovery. I never discussed a draft letter with Mr. Neuman. 6. I did not draft, provide comments on, or discuss the Neuman Letter with anyone, including Mr. Neuman. I have no personal knowledge regarding who authored, reviewed, commented on, or contributed to the Neuman Letter. Nor have I ever seen any drafts of the Neuman Letter or documents resembling the Neuman Letter until sometime after the litigation in this case began and the document was produced during discovery. 7. In the fall of 2017 I had discussions with John Gore, the Acting Assistant Attorney General of the Civil Rights Division at the Department of Justice about the citizenship question. We discussed the drafting and the timing of a letter from the Department of Justice to request reinstatement of a citizenship question on the census questionnaire. We also discussed the possible content of such a letter in general terms. 8. I never received any drafts of the Department of Justice?s December 12, 2017 letter to the Census Bureau requesting the reinstatement of a citizenship question (?Gary Letter?), from Mr. Gore or anyone else. 9. I never provided comments, feedback, or edits on any draft of the Gary Letter. Case Document 648-1 Filed 08/03/19 Page 201 of 204 10. My conversations with Mr. Gore all occurred over the phone, and I did not take any notes of those conversations. I did not exchange any written communications about the Gary Letter or its contents with Mr. Gore prior to the letter?s transmission to the Census Bureau on December 12, 2017. 11. As a member of the Bar and an of?cial of the Department of Commerce, I took with utmost seriousness my duties and obligations to comply with all requests for discovery in this matter to the full extent required by law. At no time did I withhold, direct anyone to withhold, or become aware that anyone had withheld documents or information required to be produced in discovery, except for documents and information withheld on grounds of privilege that were accounted for in Defendants? privilege logs. I declare under penalty of perjury that the foregoing is true and correct. Washington, DC . August 1, 2019 fete} Davidson/ General Counsel United States Department of Commerce Case Document 648-1 Filed 08/03/19 Page 202 of 204 Exhibit 27 Case Document 648-1 Filed 08/03/19 Page 203 of 204 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK STATE OF NEW YORK, el al.. Plaintiffs, v. (JMF) UNITED STATES DEPARTMENT OF COMMERCE, e! 01., Defendants. WW 1, Earl W. Comstock. make the following Declaration ptn'suant to 28 U.S.C. I746, and state that under penalty of perjury the following is true and correct to the best of my knowledge and belief: I. I am the Deputy Chief of Staff for Policy and the Director of the Of?ce of Policy and Strategic Planning at the US. Department of Commerce I am responsible for reviewing submissions to the Secretary from various bureaus for alignment with departmental policy and for overseeing general policy development and implementation The following statements are based upon my personal knowledge. These statements are provided in support of the Defendants? opposition to the New York immigration Coalition?s motion for sanctions in the above- captioned case. 2. Prior to press reports earlier this year concerning the discovery of Dr. Thomas Hofeller?s unpublished 2015 study. I had never heard of Dr. Hofeller and had not seen or heard of that unpublished study. I was similarly unaware of other documents that purportedly were Case Document 648-1 Filed 08/03/19 Page 204 of 204 retrieved from the computer of Dr. Thomas Hofeller, such as the 20l7 dra? paragraph that discusses the Voting Rights Act Nor have I met, communicated with, or spoken to Dr. Thomas Hofeller. 3. Similarly. prior to this litigation, 1 had never seen a copy of a purported dra? letter from the Department of Justice to the Census Bureau requesting a citizenship question (?the Neuman Letter"), nor did I ever comment on any dra?s of the Neuman letter. To the best of my knowledge, none of my staff worked on or provided comments on the Neuman letter. 4. Lastly, I never saw any drafts ofthe Department ofJustiee's December 12, 2017 letter to the Census Bureau requesting the reinstatement of a citizenship question (?Gary Letter?) nor did I have any discussions with anyone at about the Gary Letter. Washington, DC i?h?Q August 2, 2019 Earl W. Comstock Deputy Chief of Staff and Director of the Of?ce of Policy and Strategic Planning United States Department of Commerce