“Taking a Wrecking Ball to Our Constitution”

Summary

Amicus With Dahlia Lithwick | Episode Summary

Episode: Taking a Wrecking Ball to Our Constitution
Date: November 10, 2018
Host: Dahlia Lithwick
Notable Guests: Neal Katyal (former Acting Solicitor General), Dale Ho (Director, ACLU Voting Rights Project)

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Episode Overview

In this episode, Dahlia Lithwick navigates a tumultuous week for the rule of law in America. The show sharply critiques the appointment of Matthew Whitaker as Acting Attorney General after Jeff Sessions’ forced resignation—raising serious constitutional concerns—and then pivots to a “deep dive” discussion about the addition of a citizenship question to the 2020 census, exploring its legal and societal ramifications.

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Segment 1: The "Fake" Attorney General and Constitutional Crisis

With Neal Katyal
[Timestamps 00:05–16:54]

Main Points

• Jeff Sessions’ Resignation and Whitaker’s Appointment:
  The episode opens with bewilderment at President Trump’s installation of Matthew Whitaker, a known Mueller probe critic, as Acting Attorney General, bypassing Senate confirmation.

• The Legal Debate: Vacancies Act vs. Appointments Clause:
  Before Katyal and George Conway’s New York Times op-ed, debate centered on whether Whitaker’s appointment fell under the Vacancies Reform Act or DOJ succession policies.

• The Constitutional Argument:
  Katyal stresses the issue isn't just technical—it’s fundamentally unconstitutional for an unconfirmed "principal officer" to wield the full force of the Justice Department.

  “This is a guy who is purporting to have the entire law enforcement power of the entire country, and yet he's never been confirmed for such a position… I’m old enough to remember when attorneys general used to have to be confirmed.”
  — Neal Katyal (05:08)

• The ‘Fake Confirmation’ Rebuttal:
  Whitaker’s prior confirmation as a U.S. Attorney in Iowa (2004) does not count, Katyal argues, drawing a bright line between past, unrelated jobs and leading the DOJ.

  “You can't, like, cut and paste some old confirmation from a decade before... I mean, it's three strikes and you're out.”
  — Neal Katyal (05:24)

• Significance of the Appointments Clause:
  The framers required Senate confirmation for principal officers explicitly to prevent presidents from appointing loyalists to critical posts unchecked.

• Why Mueller Didn’t Need Confirmation:
  A counterpoint addressed: Special Counsels aren’t principal officers, nor have they ever been confirmed by the Senate, unlike the Attorney General.

  “The irony of this Trump position is it boomerangs on him.”— Neal Katyal (09:54)

• Remedies and Paths Forward:

  • Public outcry (“the rise of the public”)
  • Congressional power of the purse—House Democrats could refuse to fund Whitaker’s DOJ.
  • Legal challenges by those affected by the DOJ and possibly by Senators.

  “This is going to be a complete and total mess. And it could have been avoided, simply avoided.”
  — Neal Katyal (12:51)

• Urgency of the Issue:

  • Whitaker could act now to undermine the Mueller probe, possibly unseen by Congress or the public until much later.
  • Emphasized as tantamount to “firing” Mueller in functional effect.

  “The time is now. I don’t think you can wait because literally at this very moment, Whitaker could be turning over Mueller's files to Trump and we wouldn't necessarily know about it."
  — Neal Katyal (14:12)

Memorable Exchange

• Lithwick: “What you're saying is, this is the functional equivalent or could be the functional equivalent of firing [Mueller]…” (13:44)
• Katyal: “The time is now... There's a lot of mischief that can happen right now.” (14:12)

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Segment 2: The Census, Voting Rights, and Political Power

With Dale Ho
[Timestamps 16:58–57:27]

Voting in America Post-2018 Midterms

• A ‘Messy’ State of Voting:
  Dale Ho describes the unprecedented amount of last-minute election litigation, citing restrictive voter ID laws, administrative failures, and deliberate suppression.

  “There was more last minute litigation about election procedures…than I can remember since maybe the 2012 election. I sort of had this naive hope—very naive—that most of these disputes would get resolved well in advance.”
  — Dale Ho (19:23)

• Election Crisis Management:
  Civil rights organizations collaborate on 'election protection' but often must escalate rapidly to litigation as unresolved issues arise.

  “There's this coalition...that participate[s] in an election protection program... We try to resolve these issues without suing, by calling election administrators or getting folks on the ground…”
  — Dale Ho (21:41)

• Partisan Election Administration and the Georgia Debacle:
  Brian Kemp's oversight of his own gubernatorial race is flagged as "not a best practice," reinforcing the need for nonpartisan election management.

  “We really ought to start trying to push states to move to a nonpartisan or independent professionalized election administration system.”
  — Dale Ho (23:52)

Positive Developments

• Voter Enfranchisement Wins:
  Ballot initiatives passed in several states:

  • Amendment 4 in Florida—restores voting rights to 1.4 million people with past felony convictions
  • Independent redistricting in Michigan
  • Broader access reforms in Maryland, Nevada

  “It is perhaps the single greatest act of enfranchisement we've seen since the 26th Amendment...”
  — Dale Ho (25:19)

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The 2020 Census Citizenship Question

Constitutional and Policy Stakes

• Why the Census Matters:
  • It’s mandated by the Constitution for apportioning representation and distributing nearly $900 billion in federal funding.
  • All “persons” are counted, not just citizens.
• Historical Background:
  • The citizenship question has not appeared on the form sent to every household since 1950.

Wilbur Ross’ Decision and Pretext

• Ross Lied to Congress:
  Dale Ho details how Commerce Sec. Wilbur Ross manipulated the process, lying about DOJ's role and White House involvement.

  “The story that Wilbur Ross told to Congress is false. He did not do this in response to a Department of justice letter. He did consult with the White House and was motivated by political considerations...We found in discovery. I mean, it's wild.”
  — Dale Ho (54:10, circling back to earlier at 00:26; 32:44)

• The DOJ ‘Voting Rights Act’ Justification Exposed:

  • DOJ has never required citizenship data from the census to enforce the Voting Rights Act.
  • Existing data from the American Community Survey has always sufficed.
  • The administration’s rationale is, in Ho’s words, “laughable…bananas.”

• Protocol Violations and Ramifications:

  • The question was not subjected to the decade-long testing process normally required for census changes.
  • Ross dismissed warnings from the Census Bureau about undercounting and refused alternate, less harmful proposals.

• Discovery Revelations:

  • Internal documents and depositions showed direct pressure from Ross and the administration, confirming the cover-up.
  • Evidence exposed clear intent to suppress immigrant response rates, affecting political representation and resources.

  “The Department of Justice says they need the most accurate citizenship data possible... We found emails... the Census Bureau responds... says, guess what? We've figured this out... at a lower cost without putting a citizenship question on the census. DOJ refused to meet... Sessions personally directed [them] not to meet… I don’t know if you can get more of a smoking gun than that.”
  — Dale Ho (53:12)

Legal Challenges

• Court Cases and Consolidation:
  Multiple lawsuits (New York, California, Maryland) challenge the question as violating the Administrative Procedure Act and as unconstitutional discrimination.

• Obstacles in Discovery:
  Supreme Court stopped Secretary Ross’s deposition, sparking debate over whether courts can examine evidence beyond the official administrative record.

• Comparisons to the "Travel Ban" Case:
  Ho notes a familiar judicial reluctance to peer behind administrative pretexts, but says this time, the paper trail is public and damning.

• Impact and Urgency:
  A June 2019 deadline looms for printing the census forms, with the case likely heading quickly from trial to appeals.

• Climate of Fear:
  The climate among noncitizen and mixed-status households is one of acute fear, made worse in the Trump era, compounding the potential for suppressed responses.

  “That story is so much worse right now when you have an administration that’s picking people up in sensitive places that used to treat as safe spaces... Fear is way up... focus groups... confirm it.”
  — Dale Ho (56:07)

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Notable Quotes & Memorable Moments

• "Taking a wrecking ball to our Constitution."
  — Neal Katyal (12:57), crystallizing the episode’s urgent theme.

• "Amazon will send a drone to you with your sneakers within an hour. It shouldn’t be this hard to vote."
  — Dahlia Lithwick & Dale Ho (22:58)

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Important Timestamps

• 00:05–13:44: Neal Katyal on the constitutional crisis around Whitaker’s appointment
• 16:58–27:31: Dale Ho on the messy state of American voting and recent bright spots
• 27:31–46:19: Census basics, history, and the citizenship question’s origins
• 46:19–54:50: Legal fight, Supreme Court’s intervention, and discovery revelations
• 55:10–57:16: Deadlines, fear among immigrants, and broader implications

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Final Thoughts

This episode combines sharp legal analysis with a sense of urgent alarm at the erosion of constitutional norms, making a persuasive, plain-language case for vigilance and civic action. Lithwick and her guests balance procedural detail with vivid, accessible explanations—serving concerned citizens, legal nerds, and newcomers alike. The stakes, as emphasized repeatedly, are nothing less than who wields power in America, now and into the 2020s.

Transcript

[A]

We live in a country of the rule of law. Chief among the laws is the Constitution. How can we possibly allow the president to install his lackey as the attorney General of the United States with no Senate confirmation?

[B]

The story that Wilbur Ross told to Congress is false. He did not do this in response to a Department of justice letter. He did consult with the White House and was motivated by political considerations and some of the stuff that we found in discovery. I mean, it's, it's wild.

[C]

Hi, and welcome back to Amicus, Slate's podcast about the Supreme Court, the law and the rule of law. I'm Dahlia Lithwig. I cover the courts for Slate. And it has been a rollicking week again, featuring midterm madness on Tuesday and recounts and broken machines and then the forced resignation of Jeff Sessions on Wednesday and then a fall by Ruth Bader Ginsburg that resulted in news of three cracked ribs on Thursday. Justice Brett Kavanaugh had his formal installation at the court on Thursday. And who knows, who knows what comes? The beat goes on. As they say later on in the show, we're going to take a closer look at voting again, not just how we all voted last Tuesday with the glorious long lines and the broken machines and the possible vote purges. No, we're going to take a deep dive into a case that's actually being litigated this very week in federal court in New York about the propriety of seeking citizenship information on the next census. This might seem kind of arcane and not interesting to you, but holy cow, you can't have a conversation about what it means to control the levers of power and how that affects everything without centering this case as Exhibit A of this is where We're Headed. But first, we're going to catch up on the Donald Trump Justice Department, where in recent days Jeff Sessions, the attorney general, tendered his resignation, but kind of did so at the demand of the president. His replacement, Matthew Whitaker, is the new acting attorney general, and he has spoken out publicly about the Mueller probe being a witch hunt and all the ways it should be shut down. Also, he says when he's the acting attorney general, he will not be recusing himself from oversight of the Mueller probe. Today we're joined by Neil Kadiel, friend of the show. He served as acting solicitor General in the Justice Department under President Barack Obama, and he had a piece on Thursday with George that would be Kellyanne Conway's George Conway saying that the appointment itself is unconstitutional and also illegal and also that any actions taken by acting Attorney General Matthew Whitaker would be illegal. So having invented the word fake, Attorney General Neal Kadial, welcome to the show.

[A]

Thanks. It's a pleasure to be with you, Dalia.

[C]

And as best as I can tell, correct me if I'm wrong, because I've been trying to follow the nuance of all this, but before your piece, the real question in the ether about this appointment was this is a smackdown between either the Vacancies Reform act and then an older Justice Department policy. And that was the question, right, that the president was doing this under the Vacancies Reform act and that there was a policy that conflicted with that. That was the initial fight until you and George Conway started talking about the Appointments Clause, Right?

[A]

Well, I certainly think that was part of the discussion. Absolutely. The Vacancies Reform act says if a Cabinet official resigns, and it uses that word that may, that you can put someone temporarily in. And so one debate was, did Sessions actually resign? It sure looks like he didn't. It sure looks like he was forced out the day after the election. And then there was a second debate about ethics and Mr. Whitaker, who's taken all sorts of positions on the Mueller investigation and may even, you know, have some ties to some of the witnesses, the question is there, can he even supervise Mueller, given his ostensible conflicts of interest? And we came in at a very different level. I mean, there are technical arguments about the Vacancies act and ethics and so on, but we think there's just a simple, much more fundamental problem, which is this is a guy who is purporting to have the entire law enforcement power of the entire country, and yet he's never been confirmed for such a position and. Or really any position, except in 2004 when he was, like, an Iowa prosecutor. And, you know, I'm old enough to remember when attorneys general used to have to be confirmed. So, you know, that's the problem.

[C]

And what do you say when you hear, oh, no, but he was confirmed in 2004 as a federal prosecutor. That's not sufficient because.

[A]

Yeah, no, he. I mean, that's a pretty terrible constitutional argument. You know, he resigned that position and, you know, did other stuff. And you can't, like, cut and paste some old confirmation from a decade before when you've left the post and other people have taken the post and say, oh, now I've got, you know, the Senate confirmation. That was, you know, a different Senate, a different president, a different job. I mean, it's three strikes and you're out. And, you know, we know this because sometimes you actually have someone leave a job who's been Senate confirmed, you know, maybe for an emergency health reason or whatever, and then they want to do the job again, the very same job, not some new big job, but whatever job they were doing. And they got to go through another confirmation hearing. They don't get to cut and paste that that's even true if it's a same president and same Senate. But this is so far from that.

[C]

Can you walk us through, slowly and methodically, what it means to say that the Article 2 Section 2 argument you're making turns on whether the Attorney General is a, quote, principal officer?

[A]

Sure. So our founders didn't say everyone in the government has to be Seneca. They limited it to certain people in what are basically called principal officers. And the paradigmatic principal officer is a cabinet official, and the paradigmatic cabinet official is the Attorney General, kind of one of the most important positions in our government, starting at the founding on. And so what the founders did was they said, you know, we can't just trust a president to install the heads of departments himself. There's got to be Senate confirmation precisely because, you know, you might have a corrupt president one day or something like that. And so they required Senate confirmation for this reason. Now there's, you know, every so often there are exceptions to that, you know, particularly in emergency situations like war or death of a cabinet official or something like that. And there are statutes to deal with those types of situations, but those are really truly more emergency situations. And, you know, I think when you're in the Justice Department, you encounter these statutes, these emergency statutes, and they're written broadly, and they're written broadly in this field and in others for a simple reason, which is the Congress can't predict what future emergencies might face the country. And you have to be really circumspect, really careful about abusing those authorities because they could then tie the hands of future presidents when you get smacked down. And that's what this president has done here. He's taken a statute really written for something else, an emergency of state, and applied it to an emergency of his person because he's scared of Russia, scared of Mueller. And that's how we wrote the piece. We did.

[C]

So as I'm speaking to you, Donald Trump is saying apparently that, well, why does Whitaker need to be confirmed? Robert Mueller was never confirmed. I don't even know how to respond to that, but I'll let you respond if you feel like.

[A]

Yeah, that's called backwards, you know. So attorneys general have always been confirmed from the Founding on, you know, that's been the standard practice, you know, and certainly every attorneys general since 1933, acting or not, has fin Senate confirmed. And you know, I haven't been able to go back before that yet, but certainly everything I found, I'm not aware of any circumstance to the contrary ever. But I know from 1933 on, and by contrast special prosecutors have never been confirmed. And the Supreme Court in 1988 in a 7 to 1 opinion upheld the non confirmation of the independent counsel. And that was a supercharged prosecutor. Mueller is far, far, far weaker. You know, I wrote those rules when I was at the justice department in the 1990s governing a special counsel. And the whole idea was to say even under that one person, Justice Scalia dissent, the special counsel would be would be constitutional. Absent the confirmation hearing, you didn't need it because we were trying to really weaken the power compared to the independent counsel. And so nobody except one person that we've been able to find has a contrary view. And that view by Stephen Calabrese in Northwestern is to use the technical legal term, poppycock. And my co author in the piece in the New York Times this week, George Conway wrote a devastating critique of the Calabrese position some time ago. But I think the irony here is if Trump actually believes Mueller should be confirmed, boy, what applies to Mueller applies to Whitaker 1,000, 10,000 times over because Mueller has virtually no power compared to the Attorney General of the United States. So the irony of this Trump position is it boomerangs on him.

[C]

Neil, I just need to ask cuz I think it's what everybody is asking. So you've made a pretty eloquent case for this is unconstitutional, it's illegal. Any action Whitaker takes is illegal and unconstitutional. And I think this could be the tagline of the show. So what, what what, what's to be done? Is there a remedy here? You know, Lawrence Tribe is tweeting that oh, you know, senators have standing to, to challenge this because there was no confirmation. I know that certainly anybody who's adversely affected, presumably by something that the new acting Attorney General does has standing. But what are folks to do if we get your qu. Fake Attorney general acting in ways that adversely affect all of us in the coming days.

[A]

Right. I think there are three different paths here. One is what we started to see Thursday, which is the rise of the public people of all political stripes saying we live in a country of the rule of law. Chief among the laws is the Constitution. How can we possibly allow the President to install his Lackey as the Attorney General of the United States with no Senate confirmation. So that's number one. Number two, something pretty dramatic happened obviously, on Tuesday as the House is now controlled by the Democrats and the Democrats have all sorts of powers in the House of Representatives available to them. Chief among them is the funding power. They can say, look, we have a fake Attorney General. We will not fund the Justice Department. We will not fund certainly this Attorney General's staff. And they can either do narrow cuts or broadcasts. They could say, no Justice Department funding except for Mueller. They could do any number of things. And they should, because, you know, this is constitutionally speaking, deeply problematic to have President Lackey running the Justice Department and effectively running the Mueller investigation and potentially turning over any information to Trump that he wants. So that's number two. And then now third to your question. Absolutely. I think lots of people have standing to challenge this. I mean, the Justice Department is the chief litigator in the United States courts. And you know, when I was in there, you know, thousands of people every day are walking into court in lawsuits against the federal government. Some of them are criminal, some of them are civil. And each of those should be supervised, every one of those actions by a legitimate official, by the Attorney General of the United States. And here you have an illegitimate one. So I think all of those people would bring lawsuits, I think senators will bring losses. This is going to be a complete and total mess. And it could have been avoided, simply avoided. There are tenant confirmed Trump appointed people like the Deputy Attorney General, Rod Rosenstein, the Solicitor General, Noel Francisco, who could have taken over. And that's what's happened in Republican and Democratic administration alike until President Trump got in and started taking a wrecking ball to our Constitution.

[C]

So, Neil, before I let you go, I'm hearing that you're, this is a sort of fore alarm proposition that we're looking at that. For folks who were saying, I'm going to wait until Mueller is fired before I really get anxious. What you're saying is a, this is the functional equivalent or could be the functional equivalent of firing, but it's certainly something that people shouldn't see as the seventh most important thing that happened this week.

[A]

The time is now. I don't think you can wait because literally at this very moment, Whitaker could be turning over Mueller's files to Trump and we wouldn't necessarily know about it. It is the case that the special counsel regulations say if Whitaker says no to Mueller on a request he makes. So if Mueller says, I want to subpoena the president or something like that. And Whitaker says he can't that ultimately at the end of the investigation that has to be reported to both parties in Congress. But that's a long way down the road and there's a lot of mischief that can happen right now. And everything we know about Whitaker, everything he said on TV as part of his campaign to get hired by the Trump administration, and all the denigrating things he said about Mueller, the denigrating things he said about the Russia investigation, we shouldn't be surprised if all of these nefarious things are happening. And you know, maybe you want to give the guy the benefit of the doubt, but our constitution says you give the benefit of the doubt to someone whose Senate confirmed for some position, not the President's lackey.

[C]

Neil, I need you to go back and pull on a thread here. It sounds as though you're saying that the one protection that the Mueller probe has is that someday down the line there will be some reporting as to what Matt Whitaker did to constrain the probe. That feels like very weak tea to me. The eventuality that we someday find out what was done to kneecap the Mueller probe. So could you just explain what else could happen that will protect this probe if Matthew Whitaker decides to destroy it?

[A]

The regulations say that the special counsel shall have day to day independence and things like that to carry out his job. But that was all depend on the good faith of the acting Attorney General supervising the investigation. And unfortunately here we can't presume good faith because of the incredibly compromised process that led to the installation of this effectively fake Attorney General.

[C]

So there it is. Things to think about over the weekend with Neil Kadial. Neil Kadial served as Acting Solicitor General under President Barack Obama. His piece in Thursday's New York Times, co written with George Conway, says that this appointment of the Acting Attorney General is unconstitutional and illegal. Neil, you're talking to us from a car racing across the country. We so appreciate your time.

[A]

Thank you. It's a pleasure to be with you.

[C]

One more thing. Have you looked into joining our members program Slate Plus? You should think about it. If you join Slate plus, you can enjoy this and all of Slate's other wonderful podcasts ad free plus extended versions of some of the shows and bonus episodes of others. And you would be supporting our journalism at the same time. And in case you're still thinking about it, how about a free trial? You can find a link to that and [e-mail] amicus and now back to the show. We are Going to turn now to the fascinating and slightly arcane question of the sense of census. While we are still recovering from Tuesday's election, from the lines, the broken machines, all the usual things that make Election Day so very fun in America. But in the not too distant future, the census will happen. The 2020 census and a case that just started in federal court last Monday, seeks to challenge a decision to add a citizenship question to the 2020 census. The new York Attorney General, Barbara Underwood, other plaintiffs groups, other states are arguing that Commerce Secretary Wilbur Ross's decision to add the question, which by the way, has not been asked since 1950, is a pretext to dissuade immigrants from participating in the census at all. And this would affect all sorts of things like apportionment of seats going forward, allocation of federal resources. It's a big mess. And if you're not worried about it, start worrying. Joining us today to talk about the case and about voting generally is Dale Ho. He's the director of the ACLU's Voting Rights Project. He supervises the ACLU's voting rights litigation. The ACLU brought this case on behalf of immigrants rights groups and he's been in the trial. So first of all, Dale, welcome back to the podcast.

[B]

Thanks for having me.

[C]

And did anything that I said in there sound wrong to you?

[B]

No. Okay, 100% correct.

[C]

Let's start then. Can we, before we do the census, which is nuts, can we just start with voting generally? Because last time you and I talked, we were talking about voting purges and that was happening this past week. And we saw weird exact match litigation, lots of drama around the ability to vote in America. So I guess my just general opening question is, what's your sense of the state of voting rights in America post midterms?

[B]

Messy.

[C]

Messy.

[B]

Very, very messy. There was more last minute litigation about election procedures in the run up to this election than I can remember since maybe the 2012 election. I sort of had this naive hope, very naive, that most of these disputes would get resolved well in advance of the election, but and not through litigation.

[C]

Or did you always think it was going to be.

[B]

There's always going to be some litigation. But you know, we had some cases that got decided over the summer and I thought, okay, that's gonna be it. And we're gonna have some issues, obviously on election day. Those are gonna be hopefully mostly things that just election administration issues that we work out. But we. And when I say we, I don't just mean the aclu, but, you know, the campaigns, the candidates and Also, all the many other organizations that work in the voting rights space just uncovered problem after problem. It seemed like in the weeks running up to the election, whether it was the voter ID law that went online in North Dakota and didn't accept IDs without residential addresses, which a lot of tribal IDs lack, and therefore was a big threat to voting rights of Native Americans, or all of the shenanigans in Georgia with the exact match issue. People getting put on suspense when there's one, you know, letter transposed between their voter registration form and their driver's license records, or a missing hyphen or something like that, to the tossing of absentee ballots, which is something that we sued on when they were tossing ballots in Georgia for a perceived signature mismatch without even informing the voters and letting the voters know and giving them a chance to correct those issues. And then, you know, I mean, my precinct had broken machines in Brooklyn, so I mean, just problem after problem.

[C]

And I guess I've just always wanted to ask you this question, but what do you do? So it's Election Day, it's Tuesday, and there's 5,000 fires. How do you decide? I mean, in Georgia, for instance, when we're like, oh, there was a power cord in the hole, right? There's no power cord, and the whole precinct goes dark, people are in line for nine hours. Students at traditionally black colleges can't vote. Like, all these things are happening at one point. Do you have, like, a red button at the ACLU where you're like, boom, now we're gonna file a suit? How do you decide?

[B]

There's this coalition of civil rights organizations and voting rights organizations and good government groups that participate in an election protection program that the Lawyers Committee for Civil Rights coordinates and serves as kind of a giant intake machine. And the lawyers who are volunteering through that program do our best to try to resolve these issues without suing, you know, basically usually ends up picking up a phone and yelling at some election administrator or getting folks on the ground in a place where there's a problem to do that for us, maybe in person. But if we make a decision determination early on that this is not going to be solved that way, and it's something that is litigable, then we do it. And you saw groups, for instance, in Ohio bringing a lawsuit for people who were arrested but hadn't been convicted of anything, so hadn't lost their voting rights and weren't getting an opportunity to vote and getting a ruling there. Groups all over the country were getting orders to Extend polling place hours because the turnout was so high in this election and polling locations weren't able to accommodate the volume. And then you had the problems. Exactly. Like the missing power cords and things like that that just required an extension of voting hours.

[C]

I bought a mascara and a machine at a Cleveland airport. It should not be this hard.

[B]

It should be this hard. Right. Amazon will send a drone to you with your sneakers. Your sneakers within an hour. It shouldn't be this hard to vote.

[C]

So before we leave Georgia, I think we talked with Rick Hassan on the show last time about just the utter insanity of Brian Camp, both administering fair elections and also running in the elections.

[B]

And that not a best practice.

[C]

Not good. This week, among other things, he started filing, you know, like saying that Democrats were hacking on Saturday night. What have we learned? And I guess effective Thursday, he stepped down. Yes, but that's still an indeterminate election.

[B]

Yes.

[C]

There's nothing to be done. I mean, I think that we just live in a world where you can, as if this were a banana republic, be in charge of oversight of your own election and nobody can do anything about it.

[B]

We really ought to start trying to push states to move to a nonpartisan or independent professionalized election administration system. I mean, this is as if you, you know, it was if, like in the World Series, like the managers of the Dodgers and the Red Sox were out there calling balls and strikes and, you know, safe and out. I mean, we don't tolerate this in almost any other activity that we can think of. For people who are interested partisans to be calling the rules. It's not a best practice, us.

[C]

It's kind of like if you appointed a new attorney general who'd already said that the Mueller probe was a witch hunt, that would be crazy.

[B]

Yeah.

[C]

Yeah. Okay, so last question. Was there any good news for voting? Like, tell us something happy that happened.

[B]

Yeah, it was a lot of good news for voting. There were a number of ballot initiatives on. Speaking of, like partisan administration of elections on independent redistricting commissions or a nonpartisan redistricting criteria that passed in states like Michigan. We at the ACLU supported a number of pro voter ballot initiatives to bring reforms to a number of states, including Florida, where an initiative passed. This is a big deal. Amendment 4 to the Florida Constitution restores voting rights to people who've completed their criminal sentences. Florida was one of only four states that banned you from voting for life for a single felony offense. And what that meant was that 1 out of 10 adults in Florida couldn't vote more than 1 out of 4 black men in the state couldn't vote and were banned from voting for life. This was over 1.4 million people who got their voting rights back as a result of this initiative. It is perhaps the single greatest act of enfranchisement we've seen since the 26th Amendment granted the right to vote to people over the age of 18. So that was a big deal. Michigan passed a ballot initiative to reform its voting systems. It was the closest state in the 2016 election. And we supported an initiative there that enacts a sweeping set of reforms like early voting, no excuse mail in voting, automatic registration, same day registration. You know, the presidential race in Michigan was decided by about 10,000 votes. Election Day registration and no excuse absentee voting are each estimated to potentially add about 200,000 votes in Michigan in a presidential election. So that's a really big deal. Maryland adopted election day registration. Nevada automatic registration. So there was a lot of good news. And I think what that tells you is that citizens have, we have to take this into our own hands because the politicians who've sort of benefited from the existing system, they're fine with that system. They're not going to reform it unless we force them to.

[C]

Well, that's quite inspiring, actually. I'm going to take that as a big win because I think one of the things we forget is that this is actually something that we think about in November and every couple of years. And then we, it's August and we're like, huh, I sure hope somebody fixed the way we vote in America. And it's really, I think I've said it a thousand times on the show, but it is on us to fix it and to fix it before 2020 to the extent that we can.

[B]

Well, I mean, I think that's something about these reforms in these states that's really important is that they set the rules for the 2020 presidential election in states like Florida and Michigan. And I think that's very, very important.

[C]

So let's talk about the census, shall we? Because I have to tell you, in preparing this, I actually read article one, section two. It actually tells you in the Constitution they had very strong ideas about this thing we call the census. And it sounds kind of abstract, but the framers really had some purposive thought about what the census was doing. Can you just tell us why this is enshrined in the Constitution in the first instance?

[B]

I mean, it's one of the few obligations of the federal government that is enshrined in the Constitution? It's foundational for our democracy because the count of the population that the census is is the basis for apportioning representation in the House of Representatives, for apportioning votes in the electoral College, which obviously is how the president is selected. And today with the massive number of federal programs that we have, it's the basis for funding and how that is distributed over $900 billion a year. So it's hard to understate the importance of a census. The framers were quite clear that every person gets counted in the census. And obviously you have the most notorious clause in the Census about the 3/5 clause about slaves and how they were counted. But I think what's critical to understand is that while the census count is used for apportioning representation, it wasn't limited only to voters. Right. Children get counted in the census just like adults, non citizens get counted just like citizens. Because there's this idea that representatives represent everyone who lives in their district or in their state, citizen or not.

[C]

But this is a long standing. Right. We've had challenges to whether we should be apportioning representation according to, I mean, this is a project that the conservative legal movement has been drilling down on for some time. So what you're telling me is this actually is profoundly rewriting what the intent was. The intent was not to hive off non citizens and say we, you know, for purposes of apportioning representation, they don't count. That was clearly not the thought in their minds.

[B]

Right, right. And what you're referring to this one case in the Supreme Court a few years ago, evenwell out of Texas, where the plaintiffs tried to force the state of Texas to draw its districts based on total citizens rather than total population. I mean, this is just a part of the broader, I think, fight against the demographic changes that are sweeping this country with a shrinking political minority trying to maintain its hold on the levers of power. Right. You see it through gerrymandering. You see it in the Senate where we're heading towards this time when 30% of the population is going to live in states that have 70 seats in the Senate. And as populations are growing in particular areas of the country, in urban areas, in particular these, you know, rural, more conservative areas see advantage in trying to eliminate non citizens and immigrants from the population count. It's just another way of trying to change the fundamental structures of government away from majoritarian rule.

[C]

So at one point, presumably there is a citizenship question on the census. It gets taken out. Why?

[B]

There's not a lot of information about why the citizenship question got taken out after 1950. The Census Bureau typically likes to keep the census questionnaire as simple as possible. I mean, there's a basic principle in survey research which is the more complicated or the longer your survey is, the more intrusive the questions you ask. The lower yield you get. The lower yield you get in terms of responses means the less accurate your survey is. And for all the reasons that we were just talking about, it's critical to have an accurate census. If you don't have an accurate census, you're not distributing political power accurately. You're not distributing federal funds accurately. So it was at some point in the census. It hasn't been there for over 70 years.

[C]

Okay, tell us about Wilbur Russ and how the decision is taken to pop it back in there.

[B]

Yeah. So In December of 2017, the Department of Justice sends a letter to the Census Bureau and the says, hey, please include a citizenship question in the census. We need it to enforce the voting rights act. Three months later, Wilbur Ross is testifying in Congress in March 2018. And he says, I got this request from the Department of Justice. The Department of Justice initiated our process of considering a citizenship question. Our process is a response solely to the Department of Justice's request. He's asked point blank by two Congress people, have you had any conversations with the White House about this? Point blank, he says no in response to those questions, no.

[C]

He's testifying in front of Congress and.

[B]

Then a few days later he issues a memo directing the inclusion of a citizenship question. What we learned later was that he lied to Congress, that in fact, shortly after he became Commerce Secretary, he immediately started investigating the possibility of including a citizenship question in the census. His staff were writing emails back and forth to each other complaining about the fact that non citizens and undocumented immigrants are included in the census count and that that count is then in turn the basis for apportioning political representation by May of 2017. So seven months before the Department of Justice puts in its request, Wilbur Ross is already writing angry emails about why this hasn't been done yet. He says he's, quote, mystified why nothing has been done about his months old request to add a citizenship question to the census. He has conversations with Steve Bannon and Kris Kobach, noted anti immigrant politician in Kansas, about the citizenship question. None of this even mentions the Voting Rights act as the reason for why they might want this. And all of this happens months before the Department of Justice ever makes its request. So he has told, at best, a very misleading picture. About how this came to be, and he's lied point blank about whether or not the White House was involved to Congress.

[C]

Now, the Voting Rights act is the best part of this, because the justification is we're not doing this because we want to make sure that, you know, funds are not allocated or we're not apportioning districts based on the number of immigrants, because that would be super racist. But what we are doing is trying to make sure that the Voting Rights act is being effectuated. Now, tell me all the reasons that this is bonkers.

[B]

I mean, it's laughable from this administration, which hasn't filed a single case under the Voting Rights act, to say that they're just desperate to file Voting Rights act cases. They just need a little bit more data, more information is bananas. But leave that aside. There hasn't been a question on citizenship in the census for the entirety of the Voting Rights Act's existence. The Department of Justice has never been stymied in bringing a voting rights case, has never had a ruling against it because of the absence of data on citizenship collected through the census. Now, let's. To be fair, you do need citizenship information sometimes in voting rights cases. And the way that the Department of Justice and groups like the ACLU have always had that information is through a sample survey that the census conducts called the American Community Survey. Now, before that, there was something called the census long form that went to about one out of every six households in America. And you see a little shell game sometimes the administration plays with this long form to try to make it seem like this isn't a big deal. They say, hey, well, the 2000 census had a citizenship question on it. We just want to go back to how it was before Obama came along and got rid of that. That is the most misleading thing. I mean, of all the misleading things that have happened here, that's one of the most misleading things, because what that survey was was not a survey that went to every household in America. It was one that went to a small sample. It produced statistical estimates of citizenship. We used to do it every 10 years. Now we do it annually through the American Community Survey. So if anything, we have more survey sample data on citizenship today than we had, you know, 15 years ago. And that's what we use. That's what the Department of Justice uses. And so the notion that, you know, all. All the Trump administration wants to do is go back to a time when there was a citizenship question on the census, there's no way other thing to call it other than a Lie.

[C]

Can you, can you just tell those of us who don't know the internecine government agency details the way you do? Why Wilbur Ross, the Commerce Secretary, is in charge of the census? In the first instance, sure.

[B]

The Census Bureau is situated within the Commerce Department, so it's a unit within the Commerce Department. And, you know, one of the reasons for that is the Census Bureau does a lot more than just conduct the decennial census. It conducts a wide range of surveys, many of which are used for economic planning purposes. So our monthly jobs report are wages and earnings data that not just the government, but private businesses, civic organizations, and government below the federal government level. State and local governments all rely on for a wide range of purposes, including economic planning purposes. So the Census Bureau is part of the Commerce Department. The Commerce Secretary is statutorily tasked with overseeing the Commerce Department. And that's why Secretary Ross was the final decision maker here.

[C]

And is it a common thing for there to be this kind of back and forth between the Justice Department and the Commerce Department? I mean, is this a standard thing for one entity to be saying to the other, hey, you know, can you pretend tweak your census for pretend voting rights reasons? Or is there something irregular about even the way this comes to us? Or is this. This happens every day where the Justice Department is like, hey, you know, you might be wanting to do this. How does it work?

[B]

The reason it unfolded this way, I think speaks to the irregularity here. Agencies other outside of the Commerce Department are permitted to ask the Census Bureau to collect data for them. You know, you might be like, say, in Housing and Urban Development and say, we need data on housing related issues, housing sales or occupancy rates or something like that. The Census Bureau is the most effective statistical agency we have in the United States and is really good at collecting data. So this wasn't a decision that the Commerce Secretary could have just made by fiat. There had to be a justification for it. Some agency had to have needed citizenship data to justify putting the question on the census questionnaire. And this is why this process was so regular. The Department of Justice didn't just of its own accord, reach out to the Census bure and say, hey, we think we need this data. In fact, what happened was the Commerce Secretary and his staff lobbied the Department of Justice and said, hey, you should ask us for this. Because if you ask us for this, then we can do this thing we want to do. And the documents that we got through discovery show is that at first the Justice Department said, thanks, we're not Interested.

[C]

Go away, go away.

[B]

But then Ross directly reached out to Sessions and when he did that, it changed everything.

[C]

Are there protocols for how you put questions onto the same. I mean, are there, is there some checklist somewhere that says, you know, given that the way you word a question can have a massive effect on the answers. What are the protocols?

[B]

There are very long, complicated protocols for making any changes to the census questionnaire. How you word a question, as you point out, can change how accurate the responses are, how many people respond. This order of the questions, the sequence of them, can have a similar effect. And so normally there's a decade long process of making any changes to the questionnaire, which involves a lot of testing. Both sort of in the laboratory, if you will, but also out in the world. And the census questionnaire that's going to be used in 2020 will never have been tested when they put it out there, which every social scientist who conducts survey research will tell you is a terrible idea and really threatens the accuracy of the census.

[C]

So just to be super clear, Wilbur Ross does not do any of the things that need to be done. They just put it on the census and say, good luck, America. Okay, now, 18 states, 15 cities, a bunch of consolidated, a bunch of immigrant advocacy groups and civil rights groups sue. And then I'm confused. Cause there's suits going on in different states and then the New York one gets consolidated with your. Okay, can you help me understand the landscape of this?

[B]

Sure. There's six different lawsuits over this issue, but they've been consolidated in three places. So there are two lawsuits in New York that have been consolidated for trial, which is ongoing right now. One, a group of 18 states and also counties and other government officials led by New York and the New York Attorney General, Barbara Underwood. And our case brought on behalf of a number of immigrants rights organizations, including the New York Immigration Coalition and Make the Road New York. Those two separate cases have been consolidated for trial in Manhattan and that trial is ongoing right now. There are two cases in California, one brought by the state of California and another by the city of San Jose. Those cases also have been consolidated and will go to trial in January. And then there are two other cases in Maryland which have similarly been consolidated for trial also in January. One brought by the law firm Covington and Burling on behalf of a number of private individuals. And then another lawsuit brought by the Mexican American Legal Defense Fund and Asian Americans Advancing justice on Behalf of Latino and Asian plaintiffs.

[C]

And what are the actual legal claims in your case right now?

[B]

Yeah, there are two Main claims in our case right now. One is that the decision to add the citizenship question violates the Federal Administrative Procedures act, which requires that administrative decisions by bodies like the Census Bureau and the Commerce Department, of which the Census Bureau is a part, cannot be arbitrary and capricious, that the rationales for the decisions that they make be accurately and truthfully disclosed, that they are not cloaked in pretextual reasons, and that the decision, you know, not violate internal rules and procedures like the Census Bureau's normal rules for testing questions before they're deployed on the Census. Our second claim is a claim that it's unconstitutional, that it was a decision that was made with the intent of harming immigrant communities and communities of color, and that that kind of discrimination is impermissible under the Fifth Amendment.

[C]

And explain the reason. I suppose it's intuitively obvious, but walk us through the reason that there's a sense that this question would depress the statistical count that comes out at the other end.

[B]

Sure. Well, you know, whenever you put a question on a survey that asks for sensitive information, that can have the effect of reducing the number of people who respond to it. Right. So the Census Bureau's own internal analysis shows that with respect to the surveys that the Census Bureau already sends out that have a question on citizenship in them, households that have a non citizen or a person where the bureau just can't even determine the person's citizenship status, respond to those surveys at a rate about 6 percentage points lower than households that are all citizens. And when you translate that out to the number of households in America that have a non citizen in them, that's a huge number of households. And then here's the critical part. They're not evenly distributed. Right. It's not like, you know, every state or every locality has an equal percentage of noncitizens. So certain parts of the country are going to get hit harder by this than others. And then what that means for the zero sum apportionment of representation in Congress or in state legislatures or for federal dollars, those communities which are all supposed to get representation and resources based on their headcount aren't going to get it.

[C]

So that's just a simple empirical matter, it seems to me. And one of the quirks of this case is it looks as though all the experts agree with you, virtually all the experts. What is the answer that Wilbur Ross gives when told this is going to depress numbers by a huge inconsequential amount?

[B]

Well, his memo says that there was some evidence and a belief that responses to The Census would decline. There was no definitive evidence that that was the case. The Census Bureau obviously disagreed with him.

[C]

That's a counterfactual, right?

[B]

Well, I mean, the only way you would know that is if you tested the question, which he declined to permit them to do. So on the one hand, he says there's no evidence, and he sets this really high standard for what kind of evidence you need, which is a test. But then he refuses to permit the Census Bureau to conduct the test. Right. So he sets the standard and then doesn't let them conduct the investigation that would provide evidence that would meet that standard.

[C]

So you've got a whole bunch of experts that are going to. And some have started already this week, and you'll be doing cross next week. They have one expert on the Census Bureau side. And it seems to me that this could be very simple. And yet it's not gonna be simple. You've already been to the Supreme Court twice and the case just started.

[B]

That's right.

[C]

Tell me about what happened on your jaunts to the Supreme Court. It was just an effort to make the case go away before you got to court, basically.

[B]

Cases like this particularly. Well, there are no cases like this. This case is kind of unique. But when you challenge a federal administrative agency's action, typically you are limited to the evidence that the agency says it considered when it arrived at its decision. That can be a challenge. When you're trying to challenge the legitimacy of an agency's decision, and you say, well, show us what you considered. And the agency says, well, this is what we considered. And they give you a sort of curated set of documents and records that they say underlay their decision. And in most cases, courts are fine with limiting the plaintiffs to that. They say, look, we presume that agencies are above board. They say they considered these 10,000 pages. You bring your lawsuit and you just look at those 10,000 pages. Because if we let you do all the things you normally do in lawsuits, take depositions, ask for more evidence, ask for more documents that could be quite burdensome to the federal government. And that rule normally makes sense here. However, we have some pretty clear evidence that what was happening there was not above board. We have a justification that's being put forth that doesn't make sense. We have a timeline of the decision making process which has been shown to be false. And so we sought from the court an opportunity to take the kinds of civil discovery that you normally get in a lawsuit depositions. Show us your documents, and we got a lot of stuff and a Lot of interesting stuff, but at the end of the day, we couldn't put all the pieces of the puzzle together. Secretary Ross said once we started getting documents, he then fessed up and said, okay, okay. I did start considering this as soon as I became Commerce Secretary and I consulted with senior administration officials about that. So our question is, well, which senior administration officials did you consult? Department of justice comes back and says, we don't know. Well, you gave us this memo that says he consulted with senior administration officials. Who are they? We don't know. So we depose his chief of staff. Who are they? She says, I don't know. Deputy Chief of staff, who are they? Says, I don't know. So we say, look, no one knows. And we say, who? We ask them both who would know, and they both say, secretary Ross. So then we say, look, Court Secretary Ross says there were senior administration officials who were talking about this issue before he ever thought about it. No one else here knows who those people are. Everyone says the only person who knows is Secretary Ross. We need to ask him. And the court gives us an order to depose the Secretary of Commerce, which is admittedly not something that is done every day, but this is not a normal case. And the court said that we could do it. And then 36 hours before we were set to depose him, the Supreme Court issued a ruling putting that on hold.

[C]

Just with respect to Ross, just respect to Ross.

[B]

We got the other discovery and the other depositions that we wanted, but we haven't gotten to put Secretary Ross in the hot seat yet. They filed another motion with the court to stay our trial after that because everybody's busy.

[C]

It's too burdensome.

[B]

It's very burdensome for the federal government and the Department of Justice's 10,000 lawyers to conduct this trial. One of the arguments they made was that hotels in New York are quite expensive, and that's not untrue, but they.

[C]

Could totally sleep on my guest bed.

[B]

Or they could have used many of the fine attorneys in the Southern District of New York, U.S. attorney's office. But they decided to defend it out of main justice in D.C. which is their right, obviously, but that runs up the cost. Anyway, the point is. So we went to the Supreme Court once on Secretary Ross. The Supreme Court said, put Ross on hold. Second time they tried to stop the trial. That was denied. But we still have briefing in the Supreme Court and potentially argument about what it is that a court may consider when adjudicating a case like this. Can it consider materials outside of the administrative Record which the Census Bureau and the Commerce Department itself curated, or can it consider evidence that we've put in things that we've discovered, the depositions we've taken and our experts.

[C]

So this is giving me ptsd, because a year ago, we were talking about the travel ban litigation, and it was very much the same principle, which is you're trying to find. This was pretextual. There was actual animus. We know there was animus in that instance. We had tweets and we had the president's campaign website and speeches, and the court says, la, la, la, la. We don't want to think about what his intent was. That's exactly. You're in that same weird Escher staircase now, where you're trying to say the four corners of his memo. Don't tell me what I need to know. I have a piece of paper that says he was talking to Kris Kobach about this, and the courts are telling you possibly, la, la, la. We don't want to hear. He's too busy.

[B]

That's basically what's happening. Although it's not the courts, it's just the Supreme Court that is threatening and.

[C]

Part of the Supreme Court.

[B]

Right. That's threatening to say that to us. I guess I would say, though, that I think the analogy to the travel ban cases is very accurate, apt, because it's the same kind of situation. But I do think there are two differences here. One is that the president does get particular deference in this area of national security and who gets into and out of the country in a way where such that judicial scrutiny in that context has a very, very high. You need to satisfy a very high burden to justify judicial scrutiny in that context, which, you know, I don't think is the case here. And the second thing I'd say here is that, well, we have some of the evidence now. We've gotten some of that evidence now, and it is terrible for the government. So this is not a situation where it's sort of like, well, we want to know what else is out there. And the court says, well, I don't think there's anything else out there. You shouldn't dig around. The court is going to have to say to us, that terrible evidence that you found, we're just going to pretend it doesn't exist. But I think the cat's out of the bag. Like, we've found it. Right. The story that he told to Congress is that Wilbur Ross told to Congress is false. He did not do this in response to a Department of justice letter. He did consult with the White House and was motivated by political considerations and some of the stuff that we found in discovery. I mean, it's wild. I mean, the Department of Justice says they need the most accurate citizenship data possible. Well, we found emails from the Census Bureau to the Department of Justice after the Department of Justice request. Request came to them. The Census Bureau responds within 10 days and says, guess what? We've figured this out. We've got a better way of getting you more accurate citizenship data at a lower cost without putting a citizenship question on the census. Let's meet to talk about it. The Department of Justice refused to meet. I had the head of the Civil Rights Division of the Department of Justice, the person behind the request, in the chair for a deposition. I asked him who made the decision not to meet with the Census Bureau. He said Attorney General Sessions personally, in person, directed him not to meet with the Census Bureau to discuss, just to discuss the Census Bureau's opinion that there's a better way to get the very data that DOJ claims it needs. I mean, I don't know if you can get more of a smoking gun than that. It just gives the lie to the notion that all they wanted was better citizenship data. What they wanted was a question on the census which they knew would depress census participation.

[C]

At some point, this has to be determined, not at some leisurely judicial pace, but because the census needs to be printed up and shipped out. What's the plan? Are we going to meet the deadline, or is this going to be another one of those things where the clock has run out and we don't resolve this until the next census?

[B]

Well, our trial concludes next week, and we hope to get a decision from the court shortly thereafter. It'll obviously go up on appeal. The trial court is not going to be the last word on this. But what the Census Bureau has told us throughout this litigation is that it needs an answer by June of 2019. So hopefully, at that point, one way or the other, we'll have an answer.

[C]

And just to be super clear about something that, again, we didn't say explicitly, there are a lot of people in this country who might at some point have answered a citizenship question that are very nervous about doing that right now. For good reason.

[B]

Right.

[C]

The Trump administration has not given tremendous confidence to people what they say about their citizenship can and will not be used against them. Correct. Is that a part of this as well?

[B]

It's a huge part of it. Because, you know, when I was telling you about the Census Bureau's internal analysis, all of that was conducted with data that was collected before Trump became president. Right. So if you just ignore Trump, pre Trump, we knew that noncitizens and households of mixed citizenship status were scared and didn't want to answer this question. That's 2016-2018-2019-2020. That story is so much worse right now when you have an administration that's picking people up in sensitive places that used to treat as safe spaces, right. Courthouses, schools. Right. Someone you know, you hear these stories about people getting picked up, driving, you know, to the hospital to deliver a baby. I mean, just crazy, crazy things. And fear is way up. And focus groups that the Census Bureau has conducted in 2018 confirm that fear of this administration. And whether or not it will truly treat that data as confidential, it's through the roof. So it's going to be much worse than what the Census Bureau is predicting.

[C]

Dale Ho is director of the ACLU's Voting Rights Project, and he brought this case with the ACLU on behalf of immigrants rights group. Dale, thank you for being on the show.

[B]

Thank you so much for having me.

[C]

And we have come to the end of yet another episode of Amicus. Thank you, as always, for listening. If you want to get in touch, our email, as ever, is amicuslate.com we love your letters and you can always find [e-mail] amicus podcast. Today's show was produced by Sara Burningham. Gabriel Roth is editorial director of Slate Podcasts and June Thomas is managing producer of Slate Podcasts. We'll be back with another episode of Amicus in two weeks.