The Department of Justice has run up on opposition to its request for a citizenship question on the 2020 Census, which John Gore, the DOJ’s acting assistant attorney general for the Civil Rights Division, defended at a recent hearing.

According to Gore, the question is important in aiding the enforcement of the Voting Rights Act. However, Gore refused to answer any questions on the deliberation process that went into the decision, citing DOJ policy against discussing topics pertaining to pending litigation.

“Since the department submitted its letter, four lawsuits have been filed against the Department of Commerce challenging its decision to reinstate a question regarding citizenship to the 2020 Census questionnaire. The Justice Department is defending these lawsuits,” Gore said at a May 18, 2018, Census follow-up hearing with the House Oversight and Government Reform Committee.

“In deference to the courts charged with hearing and resolving pending litigation involving the United States, it is longstanding department policy not to discuss that litigation outside of court, and the department accordingly is limited in its testimony today.”

Democratic members of the committee contested this statement, claiming that questions on deliberation did not require the DOJ to disclose its documents or intentions pertaining to pending lawsuits. They expressed particular frustration over the fact that Gore did not answer questions about whether certain members of the Trump administration were consulted prior to crafting the Department of Justice’s letter.

Rep. Gerry Connolly, D-Va., said that the DOJ has in the past not upheld this policy against disclosure, as it provided documents to Congress on the Obama-era “Fast and Furious” gun purchasing program that sought to track criminal activity, while the program was under litigation.

Democratic members attempted to subpoena Gore to reveal the details of DOJ deliberations on the request, but the motion was tabled by a Republican majority.

During the first portion of the hearing — held May 8, 2018, and which the DOJ refused to attend due to a non-government witness in attendance — witnesses raised concerns that a lack of public trust in the government due to the Trump administration’s controversial statements on immigration made a question on citizenship likely to depress minority responses to the Census. This could skew the distribution of state representatives derived from Census data.

Members in the May 18 hearing acknowledged that projections in advance of the Census already indicated that states like Illinois and Alabama could stand to lose representatives to more populous states.

Since the passage of the Voting Rights Act in 1965, citizenship questions have been included on the American Community Survey, which samples portions of the U.S. every year, and the long-form version of the Census, which is sent to one in every six households in the U.S.

But a citizenship question has not been added to the main body of the Census during that time.

Gore testified that the DOJ “makes due” with the data available in the ACS to pursue Voting Rights Act litigation, which involves instances of voter discrimination based on minority status, but worries that the generalizations of ACS data may not be enough for future cases.

Gore cited a private litigation case in which a man from a population-sparse part of Texas had his case dropped because of the general nature of ACS data, but said that there had not yet been a case pursued by the DOJ that had been dropped for such reasons.

Jessie Bur covers federal IT and management.

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