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By Why Is This Happening?

In many cases the Trump administration isn’t shy when it comes to undermining the Constitution of the United States. But while fights over things like the Muslim ban or ending birthright citizenship play out in public, there are other massive Constitutional erosions happening under the radar.

This is the story of how Wilbur Ross and the Trump administration went about trying to change the way people in America are counted and how they got caught lying about it. Dale Ho is the director of the Voting Rights Project for the ACLU. He caught the Trump administration in a big lie about the way it intends to execute the 2020 census. Listen to Dale Ho describe what the ACLU found, why they’re suing, and why the results of his case could change the way democracy in America functions.

CHRIS HAYES: The bitter taste in my mouth all day, all the time in covering this administration is the bad faith and the lying. You can say, forthrightly, like here are our reasons that we think it's wrong to be counting non citizens for purposes of representation and federal funds.

DALE HO: Right.

CHRIS HAYES: Citizenship is an incredibly important thing and we have gotten too lax about the division between citizens and non-citizens. You can make that argument. I don’t agree with that.

DALE HO: Let’s have a debate about it. Let’s have a public debate about it.

CHRIS HAYES: But that's never the way they do it-

DALE HO: Right.

CHRIS HAYES: On anything. It's always bad faith, it's always this like, stupid trick play. It's like someone shows up with the three toddlers in side a trench coat.

Hello and welcome to "Why Is This Happening?" me, your host, Chris Hayes. Special day here. Tiffany Champion's not in the room, but Matt Toder and senior producer Brennan O'Melia's right here. He's fist pumping.

BRENDAN O’MELIA: What, what?

CHRIS HAYES: I like to think of podcasting as a visual medium, so I'll just describe what he's doing. All right, so check it out. Today's a great episode with a kind of mind blowing set of facts and a story that is one of these stories… I do this professionally and I have to say and, even as someone who comes to work every day and thinks about the news, there's these stories that are constantly sort of like rushing past the very periphery. And occasionally something happens and I'm like, "What the hell is going on with that story?"

But then there's like a bazillion things to keep on top of and we don't do it on the show and then maybe like another week goes by and something rushes past, a headline, I like read the article and I'm like, "Oh my God," and then it goes out of my mind. And one of the great things about this podcast is we can devote some time to it.

So today is one of those stories that I keep ... every time this story, like, surfaces up into my consciousness, I'm like, "Holy crap, this is insane," and then it sort of goes away and then it surfaces up into my consciousness again. And I think it will be in a lot of people's consciousness because right now there is a trial in federal court that pits today's guest, who's a lawyer for the ACLU, against the Department of Justice, the U.S. government, over this story. And the story has to do with the absolute sexiest topic in all of news. It's just one of those things that like, you just put in on cable news, you put it on the front of a tabloid, like people are clicking, they're watching, they're into it.

I speak, of course, of the census. Oh, yes, the census. Article I, Section Two of the United States Constitution directs that the apportionment of representatives happens according to their respective numbers of the people. It says the number of people that you use to apportion the Congress, "Shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, 3/5 of all other persons."

A lot going on there. A lot going on there which we'll talk about, and that the actual enumeration, which is the counting of who the persons are, remember, that's a term in the Constitution, "Shall be made within three years after the first meeting of Congress and within every subsequent term of 10 years in such manner as they shall by law direct." That's it. You gotta count the persons in the country every 10 years according to the Constitution. That count serves as a crucial bedrock for American representative democracy because it's who is where and who gets represented by whom.

And as you can tell from that very, very loaded clause, excluding the Indians, the 3/5 of other persons, which is like the original political correctness, the founders can't say slaves, it's like, “ooh, we don't want to put slaves in the Constitution, other persons.” It's like such a fricking obvious tell, they knew what they were doing. That clause there is the foundation upon which rests the Census Bureau. And the Census Bureau is an incredibly impressive organization in the American government. It gives us all kinds of data over and above how many people live in the country.

People vote at a mall in Henderson, Nevada, on Nov. 6, 2018.
People vote at a mall in Henderson, Nevada, on Nov. 6, 2018.John Locher / AP

You can go there right now, go to census.gov, you can just like noodle around and find a million things about your zip code, about your census tract. Like what's the median income of the people in my census tract? What's the demographic breakdown? It's an incredible, incredible resource. And when Donald Trump got into office, he put a man in charge of the Commerce Department named Wilbur Ross, and the Commerce Department runs the census and Wilbur Ross decided he wanted to change the census in a crucial way.

And today's episode is the story of how Wilbur Ross went about changing the census and why he went about changing the census in the way he did and crucially, the very obvious and flagrant lies he told about what he was doing. It is one of those stories of the Trump administration you almost can't believe how flagrant it is. You just cannot actually believe they have gone about this in the way they have, but here we are.

And today's guest, Dale Ho, who's an incredible lawyer, who's been doing totally amazing and righteous work for years, and I've known him for a very long time, who is now the director of the ACLU's voting rights project. Dale Ho represents the ACLU in this lawsuit they brought against Wilbur Ross and the U.S. government over this change they made to the census. They want to add a question about citizenship, as you will hear. And they were joined by attorneys general of various states including New York, they've been consolidated into one case and they're on trial, right now, as you listen to this, they're on trial in a New York federal court over this issue. And it's technical, it's a little weedsy, it's about the census, it's about counting and how you count and who you count and what questions you ask.

And it is one of the most important things happening in all of the Trump administration right now. The outcome of this suit may very well determine what happens in the census, who gets counted, and crucially, who gets undercounted. And you'll be shocked to hear that the result of adding the question that the Trump administration wants to add, will likely be an undercounting of people in the kinds of areas that are represented by Democrats. It means less federal funding, it means less representation, it means all kinds of changes in political power, from the people the White House doesn't like to the people the White House does. That's what is on the table in this federal courthouse in New York right now. And to understand just how crazy what they have done over at Wilbur Ross' Commerce Department, you gotta listen to Dale Ho, who knows this better than anyone, break it down.

I thought we'd start real basic and work our way up.

DALE HO: Mm-hmm (affirmative)

CHRIS HAYES: The census.

DALE HO: Yes.

CHRIS HAYES: It's in the U.S. Constitution.

DALE HO: It is.

CHRIS HAYES: Quite explicitly, like, it was a thing that the founders were real focused on.

DALE HO: It's one of the few functions of the federal government that is expressly enumerated in the Constitution.

CHRIS HAYES: It's funny because like, when you look at the modern administrative state, there's a bazillion things it does that the founders didn't ... like, the founders were not like, "We should think about a fuel mileage regulations."

DALE HO: Air traffic control safety.

CHRIS HAYES: Yeah, like mail and the census are there right from the jump.

DALE HO: Right.

CHRIS HAYES: What does the Constitution say about the census? What is the idea behind it in the founding document?

DALE HO: The idea behind it is that we need a complete and accurate count of the entire population of the United States because that's the basis for apportioning representation in the House of Representatives, which is based on, you know, population, right? So, it's a foundation pillar of our democracy and the fair distribution of political power as the founders envisioned.

CHRIS HAYES: And we should also note that there's a controversy about that from the jump as well. Which is the most notorious part-

DALE HO: Of course.

CHRIS HAYES: Of the Constitution-

DALE HO: Right.

CHRIS HAYES: which is the 3/5-

DALE HO: 3/5-

CHRIS HAYES: The 3/5 compromise, which is, okay, well we're gonna count people, what do we do with all the slaves?

DALE HO: Right. It's obvious the 3/5 compromise is there, obviously, to enhance the power of slave holding states. They can't claim to represent the slaves themselves who are disenfranchised, and more than that in terms of the deprivation that they have. And the slave states, they want some credit, right? For their enslaved populations. And so they settle on this compromise.

And what the 14th Amendment does, after the Civil War, is it not only makes sure that everyone born in the United States is a citizen, but it makes clear that everyone gets counted for purposes of apportionment, unless you're in this sort of, you know, particular category people living on reservations that are part of Native American tribes and aren't subject to the jurisdiction of the United States.

CHRIS HAYES: It's just interesting to me because we're gonna get into what your lawsuit's about and sort of like the political mechanics, but at one level it seems like, okay, well this is a fairly technical undertaking, a matter of accounting.

DALE HO: Right.

CHRIS HAYES: It's literally counting.

DALE HO: Right.

CHRIS HAYES: It's the bureau to count people.

DALE HO: Yeah.

CHRIS HAYES: And yet, from the very first moment, from before the country starts, there's a political fight over it precisely because who gets counted and how they get counted is what creates the conditions of who has political power.

DALE HO: Yeah, that's absolutely right. It's a fundamentally political question, right? That gets to the hear of what does it mean to have a representative democracy.

CHRIS HAYES: So they've been doing a census every 10 years.

DALE HO: Yeah.

CHRIS HAYES: And then that count is reported to the nation, I guess?

DALE HO: Yes.

CHRIS HAYES: Right? I mean, these are the number of people, and then that is used by the states when they do their districts, is that how it works?

DALE HO: Well, first it's used to apportion the number of seats that each states get in…

CHRIS HAYES: Right, of course.

DALE HO: … the House of Representatives. And then the states use that data when they draw district lines for their own state legislatures. Which, they're required under the Supreme Court's decision Reynolds v. Sims to have districts that have roughly equal numbers of people in them.

CHRIS HAYES: Even that, right? Do you have to have roughly equal number of people in your districts, that was a political fight, too.

DALE HO: Well, right. I mean, that was not a rule until the 1960s, prior to that…

CHRIS HAYES: Think about that, that's crazy.

DALE HO: Yeah. Right.

CHRIS HAYES: I mean, think about the fact that like, oh, yeah, well you guys have a hundred thousand people, you get a congressman-

DALE HO: Oh, yeah.

CHRIS HAYES: And you have 800,000, you also get a congressman.

DALE HO: No, I mean there were literally districts, I mean, it was non uncommon for there to be districts that had 10 times as many people as other districts. Sometimes the numbers were even worse than that.

CHRIS HAYES: Before Reynolds?

DALE HO: Before Reynolds, yeah.

CHRIS HAYES: Really?

DALE HO: Yeah, oh, yeah. In California, for example, every county got one state senator, right? So LA County, right? Which has far more than 10 times more people than the smallest county in California, population wise, was getting one state senator. Whereas, you know, these sparsely populated rural counties with just a couple of thousand people would get the same amount of representation in the senate as LA.

CHRIS HAYES: And this is all part of this kind of line of cases that starts with Baker v. Carr, right?

DALE HO: Mm-hmm (affirmative)

CHRIS HAYES: That gets us to what we now call one person, one vote.

DALE HO: Correct.

CHRIS HAYES: What's the framework there for thinking about what the Supreme Court starts doing in the mid-20th century to basically say, our Constitution demands basically, this kind of rough equality of representation-

DALE HO: Right.

CHRIS HAYES: Among equal citizens.

DALE HO: Right. And the way you put it is I think perfect. It's about rough equality.

CHRIS HAYES: Thank you, Dale.

DALE HO: Well, it's rough equality of representation, no seriously, because one person, one vote sometimes, you know, people hear that and they think that means every vote, you know, is equal to every other vote. And it's not exactly what one person, one vote is about. It's about having equal numbers of representatives for equal numbers of people. You couldn't perfectly equalize votes because turnout will go up and down from one district to another, some districts you'll have more people voting than others and some districts have more eligible voters than others because there are more adults, because there are more people who are not disenfranchised because of a criminal conviction and because there are more citizens or non-citizens.

The whole point is not that every ballot necessarily has equal weight, but that every person, whether you're an adult or a child, whether you're a citizen or not, whether you're incarcerated or not, every person gets the same amount of representation in their state legislature.

CHRIS HAYES: So this is a key point about the ways in which our principle one person, one vote and the census interact.

DALE HO: Yeah.

CHRIS HAYES: Because we're not counting voters-

DALE HO: Correct.

CHRIS HAYES: I mean, this is a key thing, right?

DALE HO: Correct.

CHRIS HAYES: Because if we were counting voters, we wouldn't count kids.

DALE HO: Right. And you might not even count people who aren't registered, you might not count people who don't vote, right? Who are registered but don't vote. But the point is, every person gets represented, whether you vote or not.

CHRIS HAYES: And part of that, I think the logic there, which I think is probably worth taking a second and tease out is, let's say you had one district in Florida that's like, just retirement homes.

DALE HO: Okay.

CHRIS HAYES: Okay? Like every one is-

DALE HO: Hypothetically.

CHRIS HAYES: Hypothetically. Everyone's a senior citizen. And so basically they're all voters. And let's say you have a district in California where half the people in that district are kids.

DALE HO: Right.

CHRIS HAYES: Right? The point is that from a representational standpoint in terms of what the representatives of that district with a lot of kids have to fight for-

DALE HO: Mm-hmm (affirmative)

CHRIS HAYES: Things like schools or public transportation-

DALE HO: Mm-hmm (affirmative)

CHRIS HAYES: That's an important as the place that has a lot of seniors.

DALE HO: Correct.

CHRIS HAYES: Right? Because it's the people that use government, not just the voters.

DALE HO: Correct.

CHRIS HAYES: This is a sort of key fundamental principle here.

DALE HO: Right. That's absolutely right.

Image: An envelope containing a 2018 census test letter mailed to a resident in Providence, Rhode Island
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: So how insulated, traditionally, has the census been from politics?

DALE HO: I mean, the Census Bureau is supposed to be insulated from politics. It's career professionals who are demographers, statisticians, survey experts, because their job is really technical. It's count every person, count them only one time and count them in the right place. I've heard that a million times from the census professionals, that that's their job. And that's not really a sort of partisan or ideological issue. There shouldn't be any left right valence to those three principles.

CHRIS HAYES: I have interacted at various times in my life I've had interactions with the Census Bureau, whether as a reporter or when I was doing research, and it's one of the most remarkable agencies of the US government. They're incredibly helpful-

DALE HO: Oh, yeah.

CHRIS HAYES: They love it if you ... you can call, you, citizen, can just like call up the census and say, I'm having a hard time making these charts work because I'm trying to find out this piece of data, and there will be a person over there in the Census Bureau who would like ... it's like a librarian, they're just so psyched that you're interested. And they will, like, on the phone, this has happened to me, walk you through-

DALE HO: Right.

CHRIS HAYES: How to get the data you need.

DALE HO: I mean, their whole purpose is to collect data, right? And make that data available for, not just the distribution of representation and federal funding, but for the public. For civic organizations, for businesses to have the information that they need to make the decisions that they need to make.

CHRIS HAYES: And I guess part of my point here is what has been built up there over the years is quite good.

DALE HO: Yeah.

CHRIS HAYES: They're good at their jobs-

DALE HO: Oh, yeah.

CHRIS HAYES: Over at the Census Bureau.

DALE HO: They're very good.

CHRIS HAYES: So have there been ... we're gonna talk about your lawsuit in a second. Before we get to that, have there been political fights, or legal fights, challenges about how the Census does its business before?

DALE HO: There have been. In the 1990s the Clinton administration planned for the census to use a technique known as statistical sampling in order to try to count the population. You mean one of the limitations of the census is it's a count, right? So they literally go around trying to count every member of every household in the United States. And they inevitably miss some people. And so what the Clinton administration wanted to do was do some sort of statistical sampling to try to account for those missed people. And there was litigation over that. The administration lost. What the Supreme Court held was that the census is an enumeration, a count of the population.

CHRIS HAYES: Yeah, you can't model it.

DALE HO: Right. You can't use ... now, they do use some modeling techniques still. And there was litigation over them in the early 2000s, but not the kind and not the magnitude of which the Clinton administration was trying to do.

CHRIS HAYES: And part of the reason for that Clinton administration initiative, which I think connects to what your lawsuit is about and what this current fight is about, is that you don't wanna miss people and, you know, the way the methods used now, like homeless shelters are an example people give all the time. And they actually do, right, I mean, census people go to-

DALE HO: Oh, yeah.

CHRIS HAYES: Homeless shelters, there are long form census forms being sent there. But there are people who are transient, there are people who are hard to get to and for the sake of full accuracy, you want to get those people and if the sort of, you know, person to person isn't working, the idea was maybe we can model some of those people out. And the vourt said no, you actually gotta go and count everyone.

DALE HO: That's right. The Census Bureau refers to these populations as HTC populations, Hard To Count populations. I mean-

CHRIS HAYES: That's real technical jargon. Lemme just write that down, Hard to ... okay, I got it, I got that.

DALE HO: But it's typically people who are more mobile, right? Who move around more frequently, which means younger people, lower income folks, people of color typically undercounted in every census. You know, the census undercounted African Americans and Latinos at pretty large numbers in the 2010 census and-

CHRIS HAYES: Is that true? Do we know that?

DALE HO: Oh, yeah. I mean, that's their best estimate that they did. Now, what the Census Bureau says, we didn't do an undercount of the entire population, because we sort of made up for the undercount of African Americans and Hispanics by overcounting non-Hispanic whites, they basically double counted some white people and said, oh, you know, okay, the total number was pretty accurate after we did that.

The point is, the undercounting that happens, it's not spread evenly across the board amongst demographic groups. So you have certain groups that are disproportionately undercounted and that has downstream consequences for their communities.

CHRIS HAYES: Yeah, this is where we start to see the political stakes come into view, right? So, if certain kinds of populations are more likely to be undercounted and those kinds of populations are concentrated in certain states versus others-

DALE HO: Right.

CHRIS HAYES: Say, the state of New York versus the state of Nebraska-

DALE HO: Yes.

CHRIS HAYES: All the sudden you're looking at a situation in which apportionment between representatives might be on the line.

DALE HO: That's absolutely right. So if African Americans and Hispanics are undercounted then the areas, the states, the localities that have larger African American and Hispanic communities will have a lower population count, they'll get less representation. Federal funding is also dependent for a lot of programs on census counts. 900 billion dollars of funds for federal programs every year is allocated on the basis on census counts-

CHRIS HAYES: Wow.

DALE HO: And so if your community gets undercounted, right? You're not gonna necessarily see your fair share of the resources that your community's-

CHRIS HAYES: I mean, you can imagine a school district that's getting federal funding-

DALE HO: Sure.

CHRIS HAYES: That has a lot of transient kids-

DALE HO: Right.

CHRIS HAYES: Right? Or kids whose parents are not documented-

DALE HO: Right.

CHRIS HAYES: Who are scared about answering a census question and that school and that school district is not going to get its proper share-

DALE HO: Right.

CHRIS HAYES: Of federal funding. And that's the kind of school district that we think about in our heads that probably needs it a lot.

DALE HO: Exactly.

CHRIS HAYES: All right. So we're gonna a 2020 census, right?

DALE HO: Yes.

CHRIS HAYES: Tell me about which department of the federal government runs the 2020 census.

DALE HO: The Census Bureau is located within the Department of Commerce.

CHRIS HAYES: Which, by the way, is a crazy smorgasbord, if you ever get into the sort of drill down into federal agencies, commerce is up there as one of the craziest in terms of all the things that are in there. All sorts of crazy stuff's in commerce.

DALE HO: Yeah, you know, international trade issues are sometimes, I guess, handled out of commerce largely in addition to state.

CHRIS HAYES: All right, so commerce is there and the head of commerce is?

DALE HO: Wilbur Ross.

CHRIS HAYES: Okay. I don't know even know the chronology of this. So when does it come to be a public thing that they are considering adding a new question to the census?

DALE HO: Right. In December of 2017, the Department of Justice sent a letter to the Census Bureau requesting that the census include a question on citizenship in 2020. And the purported reason the Department of Justice says is that we need more accurate data on the number of citizens there are at a very granular level of geography. Basically, block by block for purposes of enforcing the Federal Voting Rights Act.

CHRIS HAYES: Why?

DALE HO: Well, that's complicated. But I think the first thing is, what's implicit in your question is, they've never had this since the Voting Rights Act existed, since it's been enforced since 1965. Citizenship has never been a question that's on the census that's sent to every household in America. To the extent DOJ has needed citizenship info, and it does, they've used sample surveys in order to get that data. Now, the reason they need it is, under some circumstances, the Voting Rights Act requires the drawing of districts that are going to give minority voters, particularly African American and Hispanic voters, an opportunity to elect candidates from their own communities.

CHRIS HAYES: These are majority minority districts, we shorthand them.

DALE HO: Right. One way of assessing whether or not a district actually does that, is if citizens within a district, that is eligible voters, so citizens of 18 and over, a majority of those people are either African American or Hispanic, right, because, if a district is 51 percent African American in terms of its' citizen voting age population, then in theory, African Americans ought to be able to elect their preferred candidates.

CHRIS HAYES: This kicks off with the Department of Justice sending a letter. Is that letter public in December 2017?

DALE HO: Yes. Yes.

CHRIS HAYES: Okay. This is Jeff Sessions' Justice Department.

DALE HO: Correct.

CHRIS HAYES: Well known to be super, super, obsessively into enforcing the Voting Rights Act.

DALE HO: They haven't brought a single lawsuit under the Voting Rights Act since the start of the Trump Administration.

CHRIS HAYES: Is that right?

DALE HO: Yeah.

CHRIS HAYES: This is an outgrowth of conservative movement that has worked for years to bring suits, challenging the Voting Rights Act. It's conservatives, of course, and a conservative court that gutted a big part of the Voting Rights Act in the infamous Shelby County Decision. So there tends to be two sides in American life. I don't think it's crazy to say that, in terms of the two coalitions, which one is like really into enforcing the Voting Rights Act and which one is not.

DALE HO: Yeah.

CHRIS HAYES: So, that itself is a little bit of a like, huh? Like this Justice Department with this Attorney General is like, "We need you to do this new thing because everyone over here in this shop is hopped up on making sure that we enforce this Voting Rights Act, and so you've gotta do this totally new thing you've never done before, add a citizenship question to the census."

DALE HO: Right.

Let's just be clear what that means. That's a door-to-door Federal inquiry of the citizenship status of every member of every household in America. We haven't done that in 70 years since well before the Voting Rights Act was enacted and now the Jeff Sessions Department of Justice is saying, "We need to do this so that we can enforce the Voting Rights Act," which they haven't even tried to do once in two years.

CHRIS HAYES: Also, think about the context of what we have seen. We know what the President's rhetoric on immigration is and about undocumented immigrants. We know what the Attorney General's rhetoric is, and it's, ... "Hey, I'm here with the U.S. government. We'd like to know if you're a citizen."

DALE HO: Yes. Yes.

CHRIS HAYES: What do you think that would do?

DALE HO: Well, it's obviously very intimidating, right? And it's going to deter participation in the census. And there's pretty much unanimous consensus amongst social scientists, survey researchers, in the course of litigating our case we found that the Census Bureau itself predicts a decline of close to 6percent of households that have one or more non-citizens in them, in terms of whether or not their going to respond to the census.

CHRIS HAYES: So basically the experts who study this think, adding this question will lead to a under counting of populations that have undocumented folks in the household.

DALE HO: Not just undocumented. Just anyone who's not a citizen, I think-

CHRIS HAYES: Ah, good point.

DALE HO: ... is like just kind of finds this to be a sensitive inquiry.

CHRIS HAYES: Right because there're all sorts of folks who are not citizens who are living in the US.

DALE HO: Right, and that's under the best of circumstances. The Census Bureau's research that I was talking about that predicted a six percent decline in response rates amongst households that have a noncitizen, that research was based on data collected before the onset of the Trump administration.

CHRIS HAYES: Mm.

DALE HO: So you can imagine what it's like now when you have people getting picked up, you know when they're picking up their kids from school or when they're going to church or when they're going to court, right? Sensitive places where we didn't use to have immigration enforcement activities. Now, we have this administration, you know fear is up, I think you know it's very reasonable to think that the deterrent effect of putting a question like that on the census is going to be a lot more significant than the six percent that the Census Bureau thinks it's going to be.

CHRIS HAYES: I mean it would have to be the case that people would have to trust that, though this is an agency of the federal government coming to their door, that, that agency will not share the information with other parts of the federal government.

DALE HO: And there is a prohibition on that in federal law — census responses are confidential. They're not supposed to be shared and I want to emphasize that because we need people to participate in the census in order to get a fair and accurate count but I understand why people would be particularly concerned with this administration.

CHRIS HAYES: So, what happens after the Department of Justice asks Commerce to consider asking this question?

DALE HO: Right. Secretary Ross initiates his process, he says. He testifies in Congress over the next few months that his process of considering a question, to add a citizenship question to the census, was initiated by the Department of Justice requests. That he is responding solely to the Department of Justice request. He's asked by Congresswoman Grace Meng from here in New York, "Have you had any conversations with the White House about this?" He say's he's not aware of any conversations with the White House. This is all testimony in Congress. And then in March of this year he directs the Census Bureau to add the question.

CHRIS HAYES: So, the Wilbur Ross story about this is, "Look I'm just doing my thing. I'm Wilbur Rossing all day and all night. I'm living my best life as like a billionaire in his '80s who now runs a major Department of the Federal Government and Jeff Sessions sends me this letter and we initiate a process and I ask my people to study it and then they come back and we decide we're going to add this." That's, that's the-

DALE HO: That's the official story.

CHRIS HAYES: And that is an official story that is given under oath?

DALE HO: Correct.

CHRIS HAYES: Like before Congress?

DALE HO: That's right and it's a lie.

CHRIS HAYES: What do you mean by it's a lie?

DALE HO: It's a lie because in the course of our litigation we discovered that pretty as much as soon as he became Secretary of Commerce in early 2017, he and his staff are already having email exchanges about the census. About the fact that non-citizens are counted in it. They're fulminating about the fact that States get representation in Congress on the basis of undocumented immigrants.

He gets a phone call from Steve Bannon who's then the chief political advisor to Trump in the White House, who directs him to have a conversation with Kris Kobach the secretary of state of Kansas who's a notorious anti-immigrant zealot and they push both the Department of Justice and the Department of Home Land Security to request a citizenship question on the census. By May, he's already writing angry emails to his staff, May of 2017. This is seven months before the DOJ request. He's already writing angry emails to his staff. I don't understand. I'm mystified, that's the word he uses. I'm mystified why nothing has been done on my months old request to add a citizenship question. And his deputy chief of staff says we'll get that in place in response to that. And that's in May of 2017.

CHRIS HAYES: Wait. There's a paper trail of all of this.

DALE HO: Yes.

CHRIS HAYES: These are emails that you have.

DALE HO: Yes.

CHRIS HAYES: In the course of your litigation.

DALE HO: Yes. Yes.

CHRIS HAYES: Just smoking gun stuff.

DALE HO: Yes.

CHRIS HAYES: Like they go in and they're like we're pissed off that all those undocumented out there are getting counted in the census and it's giving them political power and we don't like that. And we want to get rid of that. Even though, let's be clear, the Supreme Court says that's the way it works, right? Am I correct?

DALE HO: That's what the Constitution says.

CHRIS HAYES: That's what the Constitution says because it says persons.

DALE HO: Right.

CHRIS HAYES: So, they don't like the Constitution.

DALE HO: Yeah.

CHRIS HAYES: They're pissed off about the Constitution and they're pissed of about the distributional impacts of that. And they start scheming.

DALE HO: Right.

CHRIS HAYES: Which is what you have the evidence of.

DALE HO: That's right.

CHRIS HAYES: And then basically they set up like an alley-oop between the Department of Justice and Commerce where like the Department of Justice sends this letter as like a pass up in the air so like Wilbur Ross can like come flying out of nowhere and dunk it.

DALE HO: That's right and what's amazing is they ask for that pass. The first time they ask for it the Department of Justice in the Summer of 2017 says, "No." Actually we're not interested in doing that. And this just infuriates Ross and his staff even more. And so there's another flurry of emails around Labor Day of 2017. Ross has a conversation with Attorney General Sessions and then the wheels really start moving. That's the point at which the Civil Right's Division at the Department of Justice gets involved and then they start drafting this letter that supposedly lays out the purported need for this data for VRA enforcement purposes.

CHRIS HAYES: So what the paper trail shows lying and it shows bad faith. And it shows values that are inimical to what is in the plain text of the Constitution.

DALE HO: Yeah.

CHRIS HAYES: But why can't they do it? Like on what legal grounds are you suing them about doing this?

DALE HO: On two legal grounds. The first is that it's a decision that's undertaken with discriminatory intent, right? The government can do lots of things for lots of different reasons. But if you do something that otherwise might be okay but you do it with the intent to harm people on the basis of their race or national origin, that's unconstitutional. So, that's one of our arguments.

CHRIS HAYES: And I want to stop you there because this has actually been a recurring theme of the Trump administration. I mean the Muslim ban is a great example, where the travel ban is almost certainly within the purview of the president's executive authority over immigration. But if you're doing it because you don't like Muslims then it's unconstitutional. Which is what in the first two iterations of the Muslim ban that's what court after court ends up finding. It's not that in some abstract sense you don't have the authority to regulate immigration this way. It's that you're clearly doing this because you're an anti-Muslim bigot and the Constitution doesn't let you do that.

DALE HO: Right. That's exactly one of the arguments in the Muslim ban. And I think there was a separate argument whether or not he had statutory authority to do it. But I think, exactly as you put it, there was an argument even if he has the authority to do it, he can't do it for this reason. And that's one of our arguments here, right? Even if there is authorization to put a citizenship question on the census you can't do it for the express purpose of harming communities that have larger numbers of Hispanics and foreign born people. That's one of the arguments. The other argument is under the Administrative Procedures Act which requires-

CHRIS HAYES: Oh, yeah. Oh, yeah. Downloads just went up.

DALE HO: Oh my god, okay, so-

CHRIS HAYES: Oh, yeah.

DALE HO: I don't want to put the listeners to sleep on this.

CHRIS HAYES: Can we get some Chevron Doctrine? Can we please get some Chevron Doctrine.

DALE HO: No, it doesn't get to that point because there's no rule which requires Chevron.

CHRIS HAYES: Right, oh right. There's no rule. That's right.

DALE HO: Right. But basically, look, when an agency undertakes an action like this it's got to be above board about the reasons why it's doing it. It can't conceal its true reasons for doing something behind reasons that are pretextual that have nothing to do with why they're doing it. And if you think about it, it makes sense. These administrative agencies which are run by unelected people, right-

CHRIS HAYES: You stopped yourself from saying bureaucrats. Which I watch your face do that.

DALE HO: No.

CHRIS HAYES: Unelected bureaucrats.

DALE HO: No, I would never say that. But the point is the public needs to have some kind of check on what the administrative state is doing and one of those checks is transparency. Right? When the administrative state takes action the public needs to understand why it's doing things. And so if they're concocting reasons that have nothing to do with the actual reasons for the actions that they're taking, that's unlawful.

CHRIS HAYES: And it's also ... I think it's actually an important thing to think about for a second of why that's so important. It's really a very common tool of corrupt regimes and authoritarian regimes. Right? "The Chicago machine," there's a great example. We don't like you because you criticized us and the Alderman sends some building inspectors to your house.

DALE HO: Hmm.

CHRIS HAYES: Now, building inspectors can come to your house in Chicago it's legal and in fact building inspectors are necessary because Chicago burned in a fire.

DALE HO: Right.

CHRIS HAYES: So you've got to make sure, you know, everything is up to code. But of the Alderman is sending building inspectors to your house because you had a nasty quote about him in the local paper, that's messed up.

DALE HO: Yeah.

CHRIS HAYES: That's what tyranny looks like. Like you can't use the tools of, sort of, regulatory state to pursue some sort of vendetta or some sort of ends that you then hide behind some sort of facially neutral purpose.

DALE HO: Right.

It's also a problem that they added a question to the census without undergoing the usual testing processes that accompany changes to the questionnaire. This is a very sensitive enterprise the census, you know. Minor changes to the questionnaire, changing the wording, changing the sequencing of the questions can have tremendous implications in terms of what kind of yield you get in terms of the responses and the Census Bureau normally undertakes a very rigorous testing process to make sure any changes to the questionnaire don't have any negative consequences for the accuracy of the census. And none of that happened here.

CHRIS HAYES: They didn't do any of that?

DALE HO: They didn't do any testing. They just threw it on there.

CHRIS HAYES: Wait really?

DALE HO: Yeah.

CHRIS HAYES: So they didn't even pretend to go through those steps.

DALE HO: No, what they said were-

CHRIS HAYES: They were pretextual about a lot of stuff but they didn't care enough, I guess to be pretextual about that. Or maybe they thought the civil servants wouldn't give them the right answer.

DALE HO: I think that's probably right. I mean they have a different survey that goes to about two percent of the population every year. It has a question about citizenship and they said, "Look, we already ask a question about citizenship, so let's just throw it on the census." But I mean that's a pretty crazy argument, I mean that other survey has dozens and dozens of questions on it. Questions like, can you bathe yourself without assistance? And you wouldn't just throw that on the census, right, without testing whether or not that's going-

CHRIS HAYES: "Hello, I'm here with the U.S. government. I'd like to know if you can bathe yourself without assistance? If you could just check right there." Yeah, okay.

DALE HO: It's just bananas.

Image: Census bureau enumerator
Leo J. Cronin, a census bureau enumerator, interviews Kiyto Sugiuia, owner of the Elsinore hotel on April 13 1950.Denver Post via Getty Images

CHRIS HAYES: Right because people should be clear, the census is doing all this amazing data collection all the time even when it's not doing the decennial census.

DALE HO: Right.

CHRIS HAYES: They have all kinds of data in those-

DALE HO: Unemployment statistics.

CHRIS HAYES: Yeah, they're doing all that kinds of stuff. And that stuff asks some really granular questions, can you bathe yourself, and then they model out from that.

DALE HO: Right.

CHRIS HAYES: So, that's a different set of stuff then the decennial census.

DALE HO: Right.

CHRIS HAYES: And their argument is basically, well we've got questions on it there, we can just toss it on the long form.

DALE HO: And what's kind of amazing too is that when they actually went behind that other survey and did the analysis they found out that about a third of non-citizens who take that other survey, answer incorrectly. They say, actually I'm a citizen because they don't want to-

CHRIS HAYES: They're scared.

DALE HO: ... confess to the government that they're non-citizens. So, when you put that on the decennial census, I mean, its track record is that it's a highly inaccurate question.

CHRIS HAYES: So, that's funny. So, you may just end up with, forget the kind of power play they're doing here from a distributional stand point. There's an accuracy problem.

DALE HO: Right.

CHRIS HAYES: You're going to precipitate a lot of false answers.

DALE HO: That's absolutely right. And here's something that's remarkable about the timeline if we can just get back to that for a second. In between December of 2017, when DOJ requested the question and March of 2018 when Secretary Ross ordered it, the Census Bureau conducted this analysis that I was referring to, right. And they said, "Look it's actually pretty inaccurate the question from this other survey. We have a different way of getting this data. We can go to the Social Security Administration which has pretty accurate citizenship information for over 90 percent of the population” and they wrote to DOJ and they said, "Hey guess what? You're going to love this. We can get you higher quality citizenship data at lower cost without putting a citizenship question on the census. Would you like to meet with us about it?" DOJ says, low level DOJ people say, "Yeah sure." They communicate this back to the Civil Rights Division who then takes it back to Attorney General Sessions. And I learned this from my deposition of the head of the Civil Rights Division last Friday. Attorney General Sessions specifically and directly in person orders him not to take the meeting. DOJ says, "We need accurate citizenship data." Census Bureau says," We can get you more accurate citizenship data, just meet with us." And Attorney General Sessions says. "No thanks. No meeting."

CHRIS HAYES: It's pretty bad.

DALE HO: I mean, I was kind of speechless. Kind of the air kind of went out of the room during this deposition where we were all just kind of our jaws were on the floor. And I mean it gives the lie to this whole fiction that they just want more accurate citizenship data. The question, putting the question on the census was their goal from the beginning. It had nothing to with getting more accurate citizenship data, right.

CHRIS HAYES: The whole thing is in bad faith.

DALE HO: Right.

CHRIS HAYES: The entire thing is in bad faith.

DALE HO: Right.

CHRIS HAYES: So, I'm a little confused. You sued. When did the ACLU sue?

DALE HO: We sued at the beginning of summer.

CHRIS HAYES: 2018.

DALE HO: Yes.

CHRIS HAYES: And the states have sued.

DALE HO: Yes.

CHRIS HAYES: Now, it's the state lawsuit that's going to go to trial?

DALE HO: We're consolidated with the state's lawsuit, so ...

CHRIS HAYES: It's the same lawsuit?

DALE HO: Exactly. We're all going to trial on Monday.

CHRIS HAYES: The trial by the time people listen to this will be happening.

DALE HO: That's right. First day of trial is Monday, November 5th.

CHRIS HAYES: The judge there, Judge Furman in the Southern District of New York, they have been desperate to get out of this trial, is my sense. Is that right?

DALE HO: That's right. They've filed motion after motion to not have a trial, to postpone the trial, to put the trial on hold, successive motions on the same issue in a way that I've never seen in a case before.

CHRIS HAYES: Really?

DALE HO: Yeah. You see one motion to not have a trial. But like to see half a dozen? After it gets denied the first time and then they just file another one asking for the same thing and then they go to the appellate court and then they ask the appellate court multiple times for the same thing, no trial? They're desperate not to have a trial.

CHRIS HAYES: The trial has the ACLU and who are the other parties in it?

DALE HO: So we represent a group of organizations, the New York Immigration Coalition, Make the Road, CASA which is in Maryland, and the Arab-American Anti-Discrimination Committee, a group of organizations that advocate on behalf of immigrant communities. And then you have a coalition of States and Cities and City officials being led by the State of New York. So those are the two different Plaintiff groups and like I said the trial is in Manhattan.

CHRIS HAYES: And so what will the trial ... what's the trial? Like it, like are you as busted as you seem? You just seem like, like is it going to be a jury, is it bench trial?

DALE HO: It's a bench trial. And you know there are a lot of issues beyond the sequence of events that you and I just discussed. You know, one of the hotly contested issues in the case is just how bad is it going to hurt these communities. And how bad is it going to hurt these states and cities. I mean one of the things we have to prove is that the question is going to have a sufficient effect on census participation. That it's going to materially affect the representation and resources that these states and counties and the communities that our plaintiff organizations represent receive. That's very much in dispute. They're going to put on some testimony that they're going to claim shows that the effect really isn't that big a deal.

CHRIS HAYES: Humpf. They're going to put on experts and try to argue that actually the thing that you say is the harm is not a harm.

DALE HO: Right.

CHRIS HAYES: That the harm doesn't exist. Because the harm here that you're trying to show is from the state standpoint it's your going take away our federal funding and our representation. From these communities it's you're going to dilute our political power, our ability to be members as representative democracy. And so they're going to try to come out and say, "You know what it doesn't actually matter people answer the same. Don't worry about it."

DALE HO: Yeah, basically. I mean we need to put on all that testimony that shows those harms and they're going to put on some testimony that said, "Yeah, people will answer it or even if people don't answer it we still have ways of counting them even if they don't answer.” The census for example if you don't answer the questionnaire, you don't answer the knock on your door, they'll go to your neighbors, they'll look at various kinds of administrative records to try and figure out how many people live in your household. If all that fails they'll try to build a statistical model so this is the thing I mentioned earlier that there is still some statistical modeling that happens even with the census and so we'll argue over whether or not those things will be effective.

Look, if you don't want to answer the questionnaire because you don't want to give up the citizenship status of every member of your household, you're not gonna answer the knock on your door.

If you're living in a community with high percentages of immigrants, neighbors are less likely to give those kinds of answers for their neighbors.

CHRIS HAYES: Yeah, and my experience, having lived in three major U.S. cities, is that there are neighborhoods and areas that have extremely high quotients of folks that are non-citizen, where someone coming through an apartment complex would be harrowing.

Yeah, so that's one thing you've gotta sort of show in this trial, the harm. What else? What are also the fights here?

DALE HO: Whether or not you actually need this information to enforce the voting rights act, right?

CHRIS HAYES: Right, so there's sort of funny question here, legally, which ended up being a big part of the Muslim ban litigation, as I understood it. I'm not a lawyer, but that ends up going to the Supreme Court, which is like, basically do you have to take them at their word about the reason they say they're doing a thing? I guess, what's the bar here to be like, "You are lying, and this is bad faith?"

DALE HO: I mean, this is the big fight that went up to the Supreme Court a few weeks ago, about whether or not we could take a deposition of Secretary Ross and it's implicit in the fight about whether or not we're even going to have a trial at all, is whether or not we have to just take whatever the administration says, or its reasons for doing something, at face value, without being able to look behind the four corners of the documents that they put in front of us. The official narrative that they've given, in terms of how this all developed, has been proven to be false. Our judge, Judge Furman, on the basis of that, has authorized us to take some discovery, and also, we would then say that that should authorize us to look at whether or not the reasons why they say they need this question, stand up to scrutiny.

Wilbur L. Ross Jr., Secretary, U.S. Department of Commerce, speaks at the Milken Institute 21st Global Conference in Beverly Hills, California
Wilbur L. Ross Jr., Secretary, U.S. Department of Commerce, speaks at the Milken Institute 21st Global Conference in Beverly Hills, California, on May 1, 2018.Mike Blake / Reuters

CHRIS HAYES: So, you wanted to depose Wilber Ross?

DALE HO: Yes.

CHRIS HAYES: And what happened when you tried to do that?

DALE HO: It's pretty unusual, we'll admit-

CHRIS HAYES: Yeah, it's real unusual.

DALE HO: -for the cabinet secretary to be deposed. It doesn't happen every day. Although, in the 80s, there was some litigation about how the census was being conducted, and the Commerce secretary was deposed. But leaving all that aside, basically you need a pretty strong showing in order to depose a cabinet secretary, and we believed, and the court agreed with us, that the evidence of bad faith ... As you put it, everything here, every step in this process, they've shown bad faith on, including the false statements to Congress.

We argued that that was a reasonable basis to permit us to take a deposition of Secretary Ross.

CHRIS HAYES: So you're showing was, "Look, here's his Congressional testimony, and here are the emails."

DALE HO: Mm-hmm (affirmative)

CHRIS HAYES: That was part of your motion to get him deposed. And then what happened?

DALE HO: Then, once the litigation start — before the motion, actually, from when the litigation started, and right before the documents came out, he admitted that the story was incorrect. They put in a filing with the court that purported to give the complete story, and that he actually initiated the whole process. He reached out to the Department of Justice to ask the Department of Justice if the Department of Justice would ask him to put a citizenship question on.

CHRIS HAYES: Oh, so he corrected the record at some point.

DALE HO: Yeah, in June of 2018. So first he does that-

CHRIS HAYES: Wait, in summer of 2018, he goes back and tries to correct the record of what he had told Congress?

DALE HO: Yes, but right around the time that all the emails were about to come out. So the lawyers know what this is gonna look like. He told Congress one thing. Emails were about to come out, so he's gotta say something, now.

CHRIS HAYES: I see. Yeah, "Where I said that that came from the Department of Justice, what I meant to say was, I asked the Department of Justice to ask me."

DALE HO: Exactly. Exactly!

CHRIS HAYES: Come on, dude!

DALE HO: Well, and they're saying that that's not misleading, because it's true that the Department of Justice asked him. He just left out the part that happened before that, which was he asked the Department of Justice to ask him. That's their, I still find mind boggling, position in this litigation. It's crazy.

So we get the emails. We take depositions of his staff, and we say, "Well, what does he mean when he says, 'I asked people at the Department of Justice.' Who did he ask at the Department of Justice?" When he says, "I had conversations about this before the Department of Justice sent their email," who does he mean? Every time, his staff said, "I don't know. You'd have to ask Secretary Ross." So we said, "Okay, we'll take them up on their invitation. We want to ask Secretary Ross." Our trial judge agreed with us, the Court of Appeals for the Second Circuit agreed with us, and then the Supreme Court said, "Let's put that on hold, because it's a very drastic step to take a deposition of a Cabinet Secretary. Let's brief it out. We're potentially in the middle of that." But trial's gotta go the week of November 5th, and we're gonna go to trial without having had the deposition.

CHRIS HAYES: That Supreme Court decision was 7-2, is that right?

DALE HO: We don't know the exact vote. There are two noted dissents. The dissents were-

CHRIS HAYES: Dissents are wild. They're like, "Dale Ho, why don't you get the hell out of here," basically.

DALE HO: Well, they're basically ... I mean, they say that none of this should be happening.

CHRIS HAYES: Thomas and Gorsuch are like, "We're having none of this. Go buzz off. Go jump in a lake."

DALE HO: There should be no trial. There should be no trial, is their position. No discovery, no discovery at all, not just of Secretary Ross. No depositions of anyone, no emails, no documents, no trial.

CHRIS HAYES: It's so crazy to me, too, because it's like ... There's a lot that I found enraging about those dissents from Thomas and Gorsuch. I'll say it, because I don't think maybe you can, but, first of all, it's in the fricking Constitution. An accurate count is part of the constitutional mandate that the founders give. If you're an originalist or a textualist, they're pretty clear about that in the Constitution. The count can't mean anything if it's an inaccurate count, A. And B, you want to talk about government power. This is a big question about government power. It's a knock on the door. It's people prying into your private world, as mandated by the government, and that's totally fine for the purposes, but the government has to be honest about what it's doing when it does that.

DALE HO: Right.

CHRIS HAYES: And that seems to me like actually a core liberty interest against the deprivations of a government.

DALE HO: Yes. I agree entirely, obviously.

CHRIS HAYES: I think I nailed it.

DALE HO: But I mean, I think, if I could try to channel what they're thinking.

CHRIS HAYES: If you need me to come to the trial and just…

DALE HO: Please do. By all means.

CHRIS HAYES: Just air out my arguments.

DALE HO: Please come and do closing arguments for us.

If I can try to channel them ... At the beginning of our conversation, you talked about how there's always been some kind of some political contestation over the census, and I think probably from Gorsuch's perspective, this is just a political choice. If you don't like it, elect a different president who will appoint a difference Commerce Secretary.

CHRIS HAYES: What's interesting too, it's part of a broader set of questions about what can an executive do and not do that we keep bumping up against. It's like, can you fire the special council? Can you ban people from Muslim countries? There's all these things that the government does, and it's like yes, there's an executive at the head of that government who is duly elected by the Electoral College of the United States as prescribed in the Constitution, but you can't just do anything, is one of the sort of key things that I'm learning in this era, in a good way.

There's administrative processes you have to go through. There's Constitutional boundaries. You cannot just do anything. You can't say, "You know what? EPA, you can stop regulating the air in all the cities that voted democratic." Can't do that! It doesn't matter if you elected the guy president. It doesn't matter if he has the constitutional and statutory authority to make policy decisions for the EPA. There's stuff you can't do because it violates either some set of administrative rules and procedures, some set of due process, or just some sort of basic constitutional concepts about equal protection and the like. Right?

DALE HO: You can't just do these things by fiat.

CHRIS HAYES: It just seems like they do a lot of that. It's not a real process heavy place. It's the sense that one gets. Every time one of these things comes out, child separation, the travel ban, the emails that Ross is sending around, right? The fact that they don't ask the census to test this. It's like they think they can just do it, and there's not a lot of process there.

DALE HO: I think that's absolutely right, but what's interesting about the census question is, they understood, obviously, that they had to have some kind of process, right? I mean, they didn't just add the citizenship question, they went through the kabuki, really, of trying to get a different agency to request the question for ostensible reasons. So they know that their power's limited.

CHRIS HAYES: Which makes it worse, actually. It makes it more nefarious.

DALE HO: Exactly. Exactly.

CHRIS HAYES: Because Will Ross could have called a press conference in March of 2017 and said, "We're adding a citizenship question to the census, because I'm the Commerce secretary, and because you elected Donald Trump president, and he appointed me, and I was confirmed by Congress, and now I'm the Commerce secretary, and we run the census, and this is what we're gonna do.

DALE HO: Yeah, and here's why we think we should do it, right? They could have done that. Maybe there would have been challenges on other grounds. But the-

CHRIS HAYES: But you would not have the same case if he did that.

DALE HO: Not at all. It would be a completely different case. But they know that they have to go through these different processes, and because they have to go through those processes, they concealed what it was that they were actually interested in, because those processes demand a certain level of transparency that they knew would make the whole endeavor look shady.

CHRIS HAYES: Is there a difference in the way the DOJ conducts itself under this president than in past presidents?

DALE HO: Well, I'm interacting with different people at the Department of Justice. I used to interact pretty exclusively with people from the Civil Rights division, the voting section. On the same side, prosecuting the same voting rights violations. They're doing it on behalf of the United States. We were doing it on behalf of individual voters or groups like the League of Women Voters. Now, I'm up against the civil division. These are, for the most part, career attorneys, so they're not, for the most part, people that we're seeing in this case are not political appointees of the Trump Administration.

I don't know what to say other than that I'm disappointed with what I see kind of as a lack of candor about what actually happened over there. It's one thing for the political actors to be changing their stories. It's another thing for lawyers for the United States government to facilitate that.

CHRIS HAYES: What happens if they win?

DALE HO: If they win, the citizenship question stays on the census.

CHRIS HAYES: And what does that do?

DALE HO: It depresses participation. Groups that try to make sure that communities are accurately and fairly counted are gonna have a lot of work cut out for them in 2020. We're gonna have to do a lot to make sure that that data is not misused. You know, if you think about it, the Department of Justice wants, publicly, block by block data of the number of citizens and non-citizens living on every block in America, and for that to be public.

Look, some blocks have hundreds of people on them, and you're not going to be able to identify any people specifically. Some blocks have fewer than 10 people on them, right, and what does that mean when you say three out of the 10 people on this one block are non-citizens, and what happens when that information's available? I don't want to stoke fears, because everyone should understand that their responses are protected by federal confidentiality laws, but we just have our work cut out for us to make sure that there's an accurate census and to make sure the data's not misused.

CHRIS HAYES: What's interesting is that you're gonna have to kind of ... Everyone's gonna have to sort of run on over to the other side if you lose the case. Because what you're telling me right now is this is gonna lead to undercounting, and it's a sort of, if not expressly meant as an intimidation tactic, it will have that kind of effect. It will be perceived as that.

If you lose the case, then everyone who wants to make sure there's not an undercount is gonna have to sort of run to the other side and say, "People, don't worry! You can trust the federal government telling them you're not a citizen. We need you to do this because we need our communities and our schools to be properly funded, and your representation, yada yada." But it's a little tough.

DALE HO: It's not necessarily gonna be the easiest sell, but it's the case that we're gonna have to take to communities. The other thing that we're gonna have to guard against is we're likely to see cities and states start trying to draw their districts based on total citizens, rather than total population, which will have a tremendous effect in terms of shifting power away from communities that have large numbers of non-citizens and foreign born individuals.

CHRIS HAYES: Oh, you mean like, you think conservative states-

DALE HO: Texas.

CHRIS HAYES: Texas will then take that data-

DALE HO: Texas will then take that data and say, "We're gonna draw our state legislative districts based on total citizens, which will drain state reps away from Houston, from El Paso, from San Antonio. The power then flows to the more rural, more sparsely populate areas of Texas which have higher percentages of citizens.

CHRIS HAYES: I mean, this is a really big deal, because at some level, the thing that we're talking about is so small. The question will fit in a tweet. The question will be a hundred characters. The actual intervention, as like, the thing that shows up on the sheet, or its in the clipboard of the census worker is so tiny, and then the lever is so large, and this is why they wanted to do it. Because it's a small little intervention, and all the sudden it's like, federal dollars, representation, all is cascading away from the people they don't like, towards the people they do. Which is fucking gross.

DALE HO: They understood that. They understood that and they knew that because of the earliest emails at the Department of Commerce from early 2017 are all about how pissed off they are that states and communities are getting dollars, they're getting representation based on total people, which includes non-citizens and undocumented immigrants.

CHRIS HAYES: Yeah, they gave it away from the beginning.

DALE HO: It's not a surprise to them. That's the whole point.

CHRIS HAYES: Right, that's why this power play matters. So this trial is gonna be fascinating. Is it gonna go for a while?

DALE HO: It's supposed to go for two weeks. It's a little bizarre in terms of the way it's being structured. The judge is having direct testimony, with a couple of exceptions, go in on paper, then what people are gonna see is cross examinations. So people who are wanting to get a sort of understanding of what's happening might be a little hard to follow at times. Normally, someone gives testimony, and you see them cross examined. We're just gonna skip that whole first part. It's gonna go in on paper. The judge is skipping opening statements. So we're just getting right into the cross examination. Part of me is concerned it might be a little bit harder for-

CHRIS HAYES: Are you gonna be doing that?

DALE HO: I'll be there.

CHRIS HAYES: You'll be in the room. You'll be asking questions.

DALE HO: Yeah, I'll be cross examining the chief scientists.

CHRIS HAYES: How dare you, sir?

DALE HO: They're putting on one witness, the government is. They're gonna be cross examining ours, but they're putting on one witness, the chief scientist of the Census Bureau, who is gonna give his opinions about the effect that this is gonna have, and I'm cross examining him during the trial.

CHRIS HAYES: Wow.

DALE HO: You should go. I'll let you know, if you want to come. It's during the day. Morning.

CHRIS HAYES: I'm pretty busy, but maybe I'll come watch. I love a good cross examine of a chief scientist.

DALE HO: Who could ever miss out on that?

CHRIS HAYES: I am a big ... I love ...

This story is pretty wild. I want to wrap it up in some kind of bow, but I just feel like ... They lied. They got caught lying. They were lying from the beginning. It's not cool. It's not cool. And again, it does get back to that original point where if they wanted to do it in an honest way, maybe they could have tried to do that. But they knew they couldn't do what they wanted to do if they were honest, and they lied about it. Then they got caught lying, and now it's like, are they gonna have to pay the price for that?

DALE HO: I mean, the whole idea in the Gorsuch dissent, I think, as I mentioned earlier, is that there's a political issue should be resolved through the political process, but we can't even have a legitimate political process about it when the administration's lying about what's happening. How can you have an informed public debate about it, when the government is concealing its purpose for doing something?

CHRIS HAYES: The reason that I think it gets me so wound up is that it's the bitter taste in my mouth all day, all the time, in covering this administration, is the bad faith and the lying. You can say, forthrightly, "Here are our reasons that we think it's wrong to be counting non-citizens for purposes of representation and federal funds. Citizenship is an incredibly important thing, and we have gotten too lax about the division between citizens and non-citizens.”

You can make that argument.

DALE HO: Let's have a debate about it. Let's have a policy, a public debate about that.

CHRIS HAYES: But that's never the way they do it, on anything. It's always bad faith. It's always this stupid trick play. It's like someone shows up like the three toddlers inside a trench coat. It's like, "Well, what are you doing here? Who are ..." We see you. We see you. But again, it's this combination of the bad faith and the trick play, but it's never even that well obscured.

DALE HO: Right.

CHRIS HAYES: So this just goes to the heart of it. It goes to the heart of it to me for these very high stakes, and whether the judiciary will check that.

I'm glad that you came in, and we'll be watching the trial.

DALE HO: Last thing I'll say about it is, however the count goes down in 2020, we're stuck with it for a decade. So as you say, the stakes are really, really high, and they stay with us.

CHRIS HAYES: Dale Ho is the Director of the ACLU Voting Rights Project, and as you heard, he's on the census case that'll be argued, probably as you're listening to this. Dale, thanks a lot.

DALE HO: Thank you so much, Chris.

CHRIS HAYES: Once again, my great thanks to Dale Ho, who is probably, right now in a room somewhere with a briefcase and a bunch of lawyers figuring out what questions they're gonna ask the next day at their trial.

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