Why Is This Happening? Discussing the census decision with Dale Ho: bonus podcast and transcript

In this bonus episode, Chris Hayes chats with the ACLU's Dale Ho about suing the Trump administration over plans to add a citizenship census question.
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By Why Is This Happening?

We have a Census update! When last we left you, Dale Ho was headed to court to argue against the Trump administration’s plan to add a citizenship question on the 2020 census. Now, Dale Ho is back to tell us what the court decided and what happens next.

If you haven’t listened to the original episode, make sure to check that out first!

CHRIS HAYES: Hello and welcome to "Why is this happening?", with me, your host, Chris Hayes. Alright, WITHpod listeners, it is another special, bonus episode. More bang for your buck this week, and by buck I mean no bucks, 'cause you don't pay for this. You just get it free in your ear holes every week. Isn't that delightful?

So we've got a great little special update. It's the first time that we have done this and it's something I think we wanna do more of. We had an episode late last year with Dale Ho, who's the head of the ACLU Voting Rights Project, who is the person sort of running the litigation against the Commerce Department and the Trump administration over their plans to add a question to the 2020 census about people's citizenship. And it was an episode that was a kind of under-the-radar topic that I was really fascinated in and got a huge response from the listeners, partly because the facts are so damning. Wilbur Ross, the Commerce secretary, quite plainly has lied to Congress under oath about what he was up to.

So we had Dale Ho on and we had him on right before he was about to go to trial against the government in federal district court here in New York over whether this was allowed. Whether the Trump administration essentially violated the law in the manner in which they attempted to add the citizenship question and lie about their motives for doing so. And so a lot of people have been saying, "Wait, what happened? The cliffhanger. You talked to him, he was about to go to trial, and where did we end up on that?" So today's episode is a "where did we end up on that?" with Dale Ho back here in the studio.

In mid-January, the federal district judge and the case Judge Furman issued a almost 300 page decision in which the ACLU arguments won almost on every point. Basically said the government acted improperly; it acted unreasonably; it attempted to conceal the facts, and no, you cannot do this. You cannot add your census question; this is wrong and illegal.

It was a huge, huge win for the ACLU. A stunning defeat for the government. So we had Dale Ho to come back and explain what happened in the trial and what happens now.

Alright, welcome back to the program Dale Ho, you are our first repeat guest on #WITHpod.

DALE HO: It's an honor, thanks so much.

Supreme Court Justices Stephen Breyer, Clarence Thomas, John G. Roberts, Ruth Bader Ginsburg, Samuel Alito Jr., Neil Gorsuch, Sonia Sotomayor, Elena Kagan, Brett M. KavanaughJ. Scott Applewhite / AP

CHRIS HAYES: And it is literally back by popular demand because we have gotten more requests for follow up on your episode than any other episode, and partly I think that's because it's a fascinating topic. I think people really, really responded to that first episode. But also it was in process when we talked. When you and I spoke, which was several months ago I think, you were about to head into trial in which you were suing the Trump administration over their proposal to add a question about citizenship to the census.

DALE HO: Right.

CHRIS HAYES: The trial was set to start in federal district court.

DALE HO: Yeah.

CHRIS HAYES: And drum roll and then the trial happened. Tell me what the trial was like.

DALE HO: It was a two week trial in federal court in Manhattan. We had kind of a parade of witnesses, mostly experts, including from the Census Bureau, or political scientists, demographers, someone who works for the city of New York, that offered testimony about what it would mean to the census if you put this question on. What would happen? How many people would respond? How many people would not respond? What that would do to census data. What that might do to the apportionment of seats in the House, what that might do in terms of the allocation of federal funding. And what all these documents in what's called the administrative record the government's record of why they needed to do this, what they considered when they did this, what all these documents meant. What the recommendation of the Census Bureau actually was and how ultimately the government's rationale just didn't make any sense.

CHRIS HAYES: So the key point here was A) there was this tremendous push behind the scenes to add this citizenship question.

DALE HO: Yeah.

CHRIS HAYES: That's clear in the record.

DALE HO: Right.

CHRIS HAYES: B) They lied about it repeatedly.

DALE HO: Right.

CHRIS HAYES: C) They're clearly doing it because they think it will have an effect, at least from top down. Steve Bannon, who was one of the people behind this, Wilbur Ross, people in the White House, because they think it will depress response levels by immigrant, immigrant-adjacent communities.

DALE HO: Correct.

CHRIS HAYES: That will then mean that they will be under counted, which will have huge effects for apportionment and federal dollar allocation for those communities.

DALE HO: Right.

CHRIS HAYES: Okay, so that's your case, right?

DALE HO: Yes.

CHRIS HAYES: Those are the three prongs of your case.

DALE HO: Yeah.

CHRIS HAYES: So the big thing from a legal perspective is: The White House, the federal government, the Census Bureau, the Commerce secretary. All those people do have the statutory power to add a citizenship question to the census, don't they?

DALE HO: Well, that's not really a question that ever came up in the litigation, right? Whether there is any kind of inherent power to allow the secretary to do this. You know, Congress, under the Constitution, has the authority to conduct the census. It's been delegated to the secretary of Commerce.

CHRIS HAYES: Right, 'cause it's in the Constitution as we spoke about last time.

DALE HO: Right. And that delegation to secretary of Commerce is subject to certain legal requirements. There's a Census Act, which puts limitations on what the Commerce secretary can and can't do, and then there's also something called the Federal Administrative Procedures Act, which governs all executive branch agencies and requires that you be truthful about the reasons why you do something. It requires that you make decisions that are consistent with the evidence that's presented to you, and that you consider all relevant factors when making a decision.

CHRIS HAYES: Yeah, so what the law says is you have to have a process and rationale. I mean, I'm oversimplifying, but it basically says that the Small Business Administration cannot announce tomorrow that every small business owner with blue eyes is no longer eligible for a loan. Just couldn't do it. It's not because it would violate civil rights law, because blue-eyed people aren't a protected class under civil rights law. It's just that it's nonsensical. Like you just can't do it, and you have to have a process and reasons for your decision. That's basically what this case came down to.

DALE HO: That's right, and you have to document the process and reasons. Right?

CHRIS HAYES: And you can't lie about them.

DALE HO: You can't lie about it. And the fact that they claimed to document the public reason for it, which was to enforce the Voting Rights Act, but that there was no evidence to support it, suggests that in fact they had a different reason. One that they didn't want to make public, that they're not announcing. And that they lied.

CHRIS HAYES: I guess what I'm trying to say here is, you had a kind of a high bar, and it's a fairly extraordinary set of circumstances, to have a federal trial in which the plaintiffs in your case are basically saying, "You can't do this because you just made this shit up and are lying about it." And the judge says, "You're right. They just made that shit up and lied about it." Which is basically what the decision from the district court was, right?

DALE HO: That's right. And it is a high bar, because it's not like ... you know, we can't just prove that it would be better to do something else other than ask a citizenship question. At the end of the day, we didn't have an argument about discrimination on the basis of a protected characteristic, like race. At the end of the day, it was all about whether or not what the government had done was reasonable. And that's usually a pretty easy bar for the government to clear. But the facts here were pretty extraordinary.

An envelope containing a 2018 census test letter mailed to a resident in Providence, Rhode Island The nation's only test run of the 2020 Census is in Rhode Island.Michelle R. Smith / AP

CHRIS HAYES: Right. That's what I'm saying. Usually the government has to get over the reasonable bar-

DALE HO: Yeah.

CHRIS HAYES: And it ... it's sort of a usually a kind of pro forma thing in most governments to show, "Yeah, we dotted our i's, we crossed our t's, we thought through this. We circulated some memos. We crunched some numbers." And in this case a federal judge, after a two week trial, says, "No, this was not reasonable."

DALE HO: Right.

CHRIS HAYES: What was the decision like?

DALE HO: So there are a few different bases for the decision. It's long and complicated, 277 pages, you know.

CHRIS HAYES: Yeah, I definitely downloaded it and was like, "I should read this." I'll just leave it there-

DALE HO: Alright, fair enough.

CHRIS HAYES: Whether we got through the whole thing.

DALE HO: Fair enough. The judge's ruling boiled down to, I think, four basic points. First, that it was contrary to law. By that I mean provisions of the Census Act which require decisions to be announced at a particular time and data to be gathered in a way that doesn't harm the quality of the census count.

Second, that they made a decision that was contrary to the evidence before Secretary Ross, including evidence that it would reduce participation on the census, which Secretary Ross misrepresented. Third, that they didn't go through the normal procedures that the Census Bureau usually goes through, which includes testing questions to make sure they don't have that kind of effect. And fourth, that they lied about the reason why they did it. That it was pretextual.

CHRIS HAYES: That's a total win.

DALE HO: Well, we won all of those arguments, so we're happy about that. I mean, we also brought an argument that this was intended to discriminate on the basis of race and ethnicity, and the court ruled that there wasn't any evidence ... enough evidence, rather, to support that, in part because we never got to take that deposition of Wilbur Ross.

CHRIS HAYES: Okay, so that brings us to a very weird, really strange procedural tangle that happened with this case that my wife — my beloved, brilliant lawyer wife, Kate Shaw, who's been a guest on the podcast — had to sort of explain to me. And I still kind of only half get. So you're doing this trial and in the run up to the trial you're deposing various people.

DALE HO: Yeah.

CHRIS HAYES: One of the people you wanna depose is the Commerce secretary himself, Wilbur Ross, and the government says what?

DALE HO: The government says there's no basis to take any depositions at all, first of all. Second of all, there's no basis to take a deposition of a high ranking government official, particularly a cabinet secretary. You have to clear a very high bar. And they're right about that, you do have to clear a very high bar. It's not every day that a Senate-confirmed cabinet secretary has to give a deposition in civil litigation. We thought the facts here were extraordinary and warranted that because of his false testimony in Congress on multiple occasions.

CHRIS HAYES: I mean, he lied to Congress, he quite plainly.

DALE HO: He told Congress, when asked, "Did you have any conversations with the White House about this?" He said, "I'm not aware of any such." That's the direct quote of what he said, when in fact the record shows he talked to Steve Bannon, who was then the chief political advisor, and that Bannon directed him to talk to Chris Kobach, who was the vice chair of President Trump's Election Integrity Commission. He said that the Department of Justice initiated the process, that he was responding solely to the Department of Justice, when in fact he had apparently made his decision months before the Department of Justice had ever gotten involved. So these were blatant lies.

CHRIS HAYES: And so you said, "Look, it's extraordinary, he's blatantly lied and we think that crosses the, we admit, very high bar of deposing a Cabinet secretary."

DALE HO: Yes.

CHRIS HAYES: The Department of Justice and Trump administration says, "No."

DALE HO: Right.

CHRIS HAYES: And then, you're trial judge, Judge Furman, right, who's the one who makes the call on this, says what?

DALE HO: Yes.

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CHRIS HAYES: Yes, you can depose him.

DALE HO: "It's a very high bar. This is a very serious matter. I take this really, really seriously, and do not say this lightly, but you can depose him because of what looked like false representations." The first appeals court to hear it affirms it unanimously, 3-0.

CHRIS HAYES: So the first appeals court, says, "Yes, you're right, you can depose him."

DALE HO: Right, 3-0. And then the Supreme Court steps in, stops the deposition before it happens, issues what's called a stay, and then grants-

CHRIS HAYES: This is all while the ... What's so weird about this ... So while you're preparing for this trial, this question of deposition is going up through the appellate process.

DALE HO: Yes.

CHRIS HAYES: Right, so there are three levels in the federal courts, there's the district court, which is your trial judge, he said "Yes." There's appellate courts, which are the circuit courts, they say "Yes." And then the Supreme Court comes in and says, "Call it off, hit a pause, and then we will grant cert and have formal arguments about whether you can depose the Commerce secretary."

DALE HO: Yes. Very unusual.

CHRIS HAYES: Crazy.

DALE HO: Very unusual for the Supreme Court to get involved in a discovery dispute about who can be deposed.

CHRIS HAYES: And not only very unusual. It's also this bizarre calendar thing. Because you're gonna have the trial and the Supreme Court is like, "In several months, let's have some arguments on this."

DALE HO: Yeah, exactly, right?

CHRIS HAYES: It's like, well-

DALE HO: Exactly. How are we gonna-

CHRIS HAYES: You can't go back in time.

DALE HO: Right. Right, so even in some world in which the Supreme Court wanted to hear the argument on that in order to bless us and say, "Yes, you may in fact take Wilbur Ross's deposition." I mean, it would have happened too late. I mean the trial happened in November and oral argument on this was scheduled for February, so-

CHRIS HAYES: It's just ... I wanna pause here because it's a really weird thing for the Supreme Court to do.

DALE HO: Weird. Yeah.

CHRIS HAYES: To say, "The trial happening in November. This is a really interesting matter that we are gonna grant." Which, again, the Supreme Court grants what's called "cert" on less than one percent, I think, of the petitions. Maybe ... I mean, a tiny, minuscule amount, and they say, "In four months after the trial, we'll take arguments about whether he can be deposed." You just had the trial without his deposition.

DALE HO: Right.

CHRIS HAYES: And you won.

DALE HO: Right.

CHRIS HAYES: As soon as you win, the Supreme Court says what?

DALE HO: "We're not gonna have oral argument on this anymore."

CHRIS HAYES: It's like, "Well, duh."

DALE HO: So why did they grant it in the first place.

CHRIS HAYES: Like everyone ... Like all you had to do was pull up your Google calendar, as a lay person, to be like, "This doesn't really make a lot of sense." Right?

DALE HO: I'm not sure they have Google calendar.

CHRIS HAYES: It was super strange.

DALE HO: The Justices use Google calendar or not, to sync up all their calendars, all nine of them. That would be pretty funny. It was very bizarre, it was hard to understand exactly what it was they were wanting to do there. From our perspective, you know at the end of the day, it doesn't matter. We won the case at the trial level. We didn't get to take Wilbur Ross's deposition, which is unfortunate. He will be testifying in Congress in March, in the House Oversight Committee, chaired by Congressman Elijah Cummings.

CHRIS HAYES: Oh wow.

DALE HO: So that'll be interesting. So we'll see what he has to say at that point, but now this case will proceed on appeal without his testimony.

CHRIS HAYES: Okay, so you won at the district level. The question of the deposition has kind of been rendered moot by said victory.

DALE HO: That's our view. I can't see how it isn't moot, but the government may have a different view.

CHRIS HAYES: And then now the government has already filed an appeal of the trial court's, district court's decision in your favor.

DALE HO: That's right. They filed an appeal. They're trying to expedite that and get that heard this Spring. They're also trying to circumvent the same court in which they filed an appeal. They've told us and they've made clear in a public filing that they're gonna also ask the Supreme Court to bypass the intermediate appellate court. Something that this administration has done a number of times, for instance in the DACA litigation, in the transgender military ban, just asking to just skip the normal appellate process and have the Supreme Court review trial court decisions.

CHRIS HAYES: That is a very very strange thing.

DALE HO: Yes.

CHRIS HAYES: It's extremely out of the ordinary. People that practice federal appellate litigation, it's almost ... It's sacrosanct. It's the stations of the cross. It's the thing you do. I mean, like I said, there's three levels. You've got the district court; you've got the appellate court; you've got the Supreme Court. Supreme Court's got a lot on their plate. You don't muck around with the Supreme Court. They take a very tiny percentage of cases because most cases can be handled at lower levels. And this administration has routinely and almost systematically done this very strange thing, which pisses off a lot of judges.

DALE HO: Yes.

CHRIS HAYES: Right? I mean that's part of the reason you don't do it.

DALE HO: Right.

CHRIS HAYES: Which is to say, "Eh. We're not gonna go to the appellate court. We want SCOTUS right now."

DALE HO: Right. And it's obviously a calculation on the part of this administration that they think they have five friends up there who are going to side with them pretty much regardless of the issue or what they wanna do.

CHRIS HAYES: It is extremely revealing. Right? I mean that is the widespread assumption about them taking these extraordinary steps quite often. In a way that is ... am I wrong, that it's a thing that people in your world have noted as bizarre.

DALE HO: Yes.

CHRIS HAYES: Right?

DALE HO: That's right.

CHRIS HAYES: It's like, what are these guys up to?

DALE HO: Yeah. And they haven't been successful so far. They haven't gotten the Supreme Court to bite and take one of these cases directly from a district court and skip the court of appeals. But, you know, the concern is they've kind of normalized this as something to ask for and that sooner or later they'll hit on something.

CHRIS HAYES: So right now they are simultaneously doing both those things. They filed for an appeal in what would be the Second Circuit?

DALE HO: Yeah.

CHRIS HAYES: Which is ... covers -

DALE HO: Here in New York.

CHRIS HAYES: Covers New York.

DALE HO: Right.

CHRIS HAYES: And then they have also ... What's the name of the filing when they try to skip an appellate court?

DALE HO: It's called a "Cert before judgment."

CHRIS HAYES: Huh. "Cert before judgment," okay. So they're trying to get a "cert before judgment" before the Supreme Court.

DALE HO: Right.

CHRIS HAYES: The schedule that this will all work it's way through and hopefully be resolved one way or the other has to be fairly expedited, because there's a lot of planning that goes into the census, right?

DALE HO: Right. The Census Bureau has said that if they get a decision by June 30th, they can implement that easily. They've said that if they get it by September, it would cause some challenges for the bureau but they could still do it. And the bureau has said that after that it becomes a real, real significant problem that they would need potentially a larger appropriation from Congress to do something. So the administration, I'm sure, is gonna argue that June 30th is a hard deadline. I'm not sure that that's right, but that's what I expect them to argue and they're gonna try to get one of these courts, either the Second Circuit or the Supreme Court to hear argument in April and issue a decision before June 30th. That's their plan.

CHRIS HAYES: The record of the trial is the thing that everything's operating off of, correct?

DALE HO: Yes, and the record of materials that were before ... It's kind of like, meta records, right? They have the record that was before Secretary Ross, and then you have the trial record which has some additional information in it that obviously, you know ... some stuff, for instance, that didn't exist.

CHRIS HAYES: Like the government can't be like, "Here's a new witness who says this" right?

DALE HO: No. Right, yeah.

CHRIS HAYES: Just wanna be clear, like, the facts have been determined.

DALE HO: Right.

CHRIS HAYES: And there's a factual record and then now there are questions of law that will be presented to the appellate court and then possibly the Supreme Court.

DALE HO: Right.

CHRIS HAYES: Can I say something about some of the factual record here that we didn't have before we talked last time-

DALE HO: Please, yeah.

CHRIS HAYES: ... that came out during the trial?

DALE HO: Yeah. You know I probably should have started here, because the numbers are kind of eye popping. We got the Census Bureau's latest projection for what the effect of the question would be, in the trial record. It wasn't in the administrative record. But one of the questions that the judge had to resolve and wasn't limited to the record before Secretary Ross to resolve this question is: what is this gonna do to the states that are challenging this? What is this question gonna do? And the census Bureau's best estimate was six and a half million people do not respond to the census as a result of this question. That might not sound like a lot of people, but you put 'em all together…

CHRIS HAYES: That sounds like a lot of people to me.

DALE HO: Well, okay. Well you put 'em all together that's our 18th largest state. If they were one state, they'd have nine seats in Congress, and eleven votes in the Electoral College. Now just to put things in perspective, the last time the Supreme Court heard a case about the census, it was over a counting procedure which changed the total count 0.4 percentage points. That a counting procedure caused Utah to lose a house seat and North Caroline to gain one. So that was after the 2000 census. These numbers are much, much bigger than that. Right? The trial judge found that it was likely that California, New York, Arizona and Texas would all lose seats in the House. Those states and others would lose a lot of federal dollars in terms of CHIP, the Children's Health Insurance Program, Medicaid, SNAP, sometimes called food stamps, WIC — a nutritional program for women, infants and children, newborns.This question, if it is on the census, will have a massive, massive effect in terms of the distribution of political power and federal dollars.

A mother and her two children walk across the Suchiate river bridge as Central American migrants cross the border between Guatemala and Mexico, near Ciudad Hidalgo, Chiapas State, Mexico, on Jan. 17, 2019.Marco Ugarte / AP

CHRIS HAYES: And that is the finding of this trial court?

DALE HO: Yes.

CHRIS HAYES: That's new. I mean, that is now ... certified, in some sort of official way by Judge Furman.

DALE HO: Right.

CHRIS HAYES: So, I mean, this sounds like it's gonna end up before the Supreme Court.

DALE HO: Um.

CHRIS HAYES: Are you grimacing because you feel like you can't count to five or-

DALE HO: Well, uh ... I can count a lot higher than five. I have two school age children so I do a lot of math.

CHRIS HAYES: Am I using that phrase correctly?

DALE HO: You are. Yeah.

CHRIS HAYES: That's like a Supreme Court phrase.

DALE HO: Yeah.

CHRIS HAYES: About can you count to five, meaning like, is there a majority there for you to persuade?

DALE HO: Right. And I think ... speaking not as the lawyer in this case but just as a court watcher and a litigator and someone who works in civil rights generally, I think pretty much my entire career as a lawyer, people have been, in my line of work, people who do civil rights work, have not sort of been chomping at the bit to get to the Supreme Court.

CHRIS HAYES: Right.

DALE HO: And the Court has only grown more conservative over the years since I've been a practicing lawyer. And you know, any time the Supreme Court says, "I wanna take your case" to someone in my line of work, we always kind of have to take a deep breath and think hard about what that's gonna mean. It's a case of national importance, it's possible that the Supreme Court takes it. It's also possible that the Second Circuit hears this case this spring and if the census forms start getting printed in the summer maybe they're the last word in the case. But it's tough.

CHRIS HAYES: You got your work cut out for you.

DALE HO: Either way. I mean, even though we have a great record, as you pointed out at the top of show, showing that the government did something unreasonable is a very high bar. And this, I think more than clears it, but it's always I think an uphill battle in these kinds of cases.

CHRIS HAYES: Dale Ho is the Director of the ACLU Voting Rights Project. He is directing the litigation over the census question for the ACLU. You were the ... you argued the trial, right? I mean you -

DALE HO: I cross examined the government's key witness, the chief scientist of the Census Bureau, which is ... You know, he was the government's only witness about the Census Bureau's analysis of the case.

CHRIS HAYES: Did you make him cry? Was there like a Perry Mason breakdown moment?

DALE HO: I didn't actually observe it myself but the media reported and in the trial judge's opinion it's noted that he did tear up at one point on the stand.

CHRIS HAYES: Oh wow, I was sort of joking, but I guess you really did make him cry.

DALE HO: He teared up at one point.

CHRIS HAYES: Wow. Well, I'm gonna go look at those media reports. Dale, thank you so much, and thanks to all the listeners for all your interest and for asking us to do this. I guess one more question because a lot of people wrote about this. Dozens of people wrote in to say they were very upset about what the government was doing; they wanted to do something. And a lot of people were like, "Well, what if we all left the question blank?" The citizenship question as a kind of act of solidarity, no confidence, etc. If it were to actually appear on the census. What do you think of that?

DALE HO: I think it's not a good idea. First of all, people are, by law, required to respond to the census and give a fulsome response. Of course, in every census, people don't respond at all or skip some questions. If you do that, you've basically let them win. If you don't get counted at all, like if you don't respond to the census. And if you don't respond to the citizenship question, then they're gonna make up a number for you. They're gonna use that number to justify however they decide to influence the drawing of district lines at every level of government: Congress, state legislature, city and county. It's important to get as accurate a count as possible if that question ends up being on the census. So I wouldn't recommend to anyone not to answer a question on the census.

CHRIS HAYES: Alright. Well thank you for answering that. Thanks to all the WITHpod listeners for asking it.

DALE HO: Thanks.

CHRIS HAYES: Alright, thanks a lot Dale.

DALE HO: Thanks a lot for having me back.

CHRIS HAYES: Once again, my great thanks to Dale Ho for coming back and doing this special bonus sequel episode. As always, we love to hear from you. There are two ways to get in touch with us.

You can tweet at us using the hashtag #WITHpod, or email us at WITHpod@gmail.com. Your emails really do drive the show. We did this episode because so many of you reached out and told us that you were dying to have Dale back and so we had him back.

"Why Is This Happening?" is brought to you by MSNBC and NBC News, produced by the "All In" team and featured music by Eddie Cooper. For transcripts, more episodes, and links to things we covered here you can go to nbcnews.com/whyisthishappening.