Today’s episode of “Holy Sh*t, None of This Is Normal!” stars Wilbur Ross, a bespectacled octogenarian whose madcap hijinks to bootstrap his way up the Forbes 400 List and into the superrich were only discovered when he (mostly) divested his holdings to become Commerce Secretary, revealing assets substantially less than advertised.
Whodathunk such an upstanding fella could wind up crosswise with a federal judge?
And yet Secretary Ross’s announcement via Twitter that he intends to violate a court order extending the census count until the end of October seems to have struck a nerve with U.S. District Judge Lucy Koh.
The issue is whether the counting is completed in time for the final census tabulation to be submitted by December 31, ensuring that the Trump administration can certify the count without including immigrants (both documented and otherwise) for the purpose of congressional apportionment. Even if Trump loses, this crucial decision on the decennial headcount will reverberate for decades.
Last year the Supreme Court refused to allow the Trump administration to add a citizenship question to the census, finding the Commerce Department’s protestations to be pretextual. Memorably, Ross himself testified to congress falsely that the Justice Department first suggested adding the question to enforce the Voting Rights Act.
Excluding non-citizens from the congressional apportionment would result in reduced funding for jurisdictions which are home to lots of immigrants. But more crucially to the GOP, it gets them one step closer to their longterm goal of drawing congressional districts based on adult, voting-age population, which would further gerrymander the country in Republicans’ favor by disproportionately excluding younger, browner groups which tend to vote Democratic.
Trump has attempted via executive order to restrict congressional apportionment to citizens only, an issue which is currently on the Supreme Court’s doorstep.
But Wilbur Ross didn’t get where he is by ignoring opportunities. And COVID-19 represented a big opportunity for Ross’s project of ratf*cking the census.
At first, the Census Bureau requested that congress extend the reporting deadlines to April 30, in light of the statewide lockdowns which prevented the counters from completing their work. All parties agreed that this would ensure that hard-to-count populations, lots of whom are poor people of color, would be enumerated in accordance with the Constitution.
Well, all parties but Mitch McConnell, who refused to take up the bill. It’s a head scratcher. (It’s not a head scratcher.)
But then the Census Bureau reversed its position and announced that actually it could finish up everything by September 30, no problemo! Internal memos showed staff screaming in panic that there was no way to get an accurate count in time to close up shop before October, but Ross plowed ahead with his plan anyway.
Inevitably, Ross was sued, and on September 24, Judge Koh granted the plaintiffs’ motion for stay and a preliminary injunction, enjoining the Census Bureau from implementing the September 30 and December 31 deadlines. Which left the government’s lawyers to explain how the announcement that the count would be done on October 5 jibed with her order.
“Contingency planning for the reimposition of the December 31 date — which is a very real possibility and is something the Commerce Department has to think about — is not a violation of the order,” Justice Department lawyer August Flentje argued.
Which seems slightly … ridiculous.
But Judge Koh was not amused, saying, “I’m not invested in what you call it, but I think it’s inconsistent with what I ordered last Thursday,” and suggesting that she might move immediately to hold the government in contempt.
“If a violation of the order has been committed, there should be consequences,” she said, before backing off and suggesting it was up to the plaintiffs to request sanctions.
“You don’t have to call it contempt, you can call it something else,” she instructed the plaintiffs’ attorney Melissa Sherry.
So, now we wait and see whether the plaintiffs ask for Secretary Ross to be held in contempt. But whatever you call it, it couldn’t happen to a nicer guy!
Judge Suggests Ross Violated Her Order Extending Time To Finish Census Counting [TPM]
Census Judge Sets Contempt Hearing for Wilbur Ross, Commerce [Bloomberg]
Elizabeth Dye lives in Baltimore where she writes about law and politics.