If the attorney general for New York has her way, Kris Kobach will be forced under oath to explain conversations he had with federal officials about placing a citizenship question on the 2020 Census.
The catalyst for a possible deposition is Wendy Teramoto, the chief of staff for Commerce secretary Wilbur Ross. When the New York Immigration Coalition, which is suing Ross over the Census question, tried to ask Teramoto about her interactions with Kobach, she couldn't remember anything.
A snippet of her deposition was made available in legal filings last week as New York Attorney General Barbara Underwood, a Democrat, formally asked the federal judge overseeing the case to make Kobach available for questioning.
Kobach, the Republican secretary of state for Kansas and a candidate for governor, lobbied President Donald Trump and his administration to ask about citizenship as a way of weakening representation for communities that tend to favor Democrats. The New York case is one of several lawsuits challenging the decision to add the question after it was announced earlier this year.
Without cooperation from Teramoto, Underwood argued, Kobach is the only person with information that could explain why Ross wanted the citizenship question. Emails released by the U.s. Justice Department in June shed some light on the situation.
"The language in these communications is consistent with the conclusion that this question was motivated by impermissible reasons," Underwood wrote to the judge, "including improper political influence and discriminatory animus against immigrant communities of color, and that the later-articulated rationale for the question is pretext."
In his columns for Breitbart, Kobach has argued citizenship information is essential for determining the percentage of eligible citizens who are registered to vote. The information would help enforce the National Voting Rights Act, he said, and allow Congress to stop counting illegal residents when congressional districts are drawn.
"The ferocity of the backlash from the left demonstrates just how important the citizenship question is," Kobach wrote. "America’s willful ignorance concerning the number of citizens and the number of aliens in the country must end."
Kobach emphasized in an email to Ross in April 2017 that asking about citizenship could have an impact on congressional apportionments. He recommended wording that asks residents to report whether they are citizens, living here with a green card, or living in the country without documentation.
To secure a meeting with Ross three months later, Kobach explained to Teramoto he he had spoken to Ross at the direction of Steve Bannon, the chief strategist for the White House at the time. She arranged a conversation between Kobach and Ross for the following day.
"Kobach made his reasons for wanting Ross to add the citizenship question plain," Underwood said. "He wanted to strip political representation from immigrant communities by providing a way to allow states and/or the federal government to omit noncitizens from apportionment calculations."
When questioned about the interactions, Teramoto said she had "no idea" who Kobach is. She didn't know he was secretary of state for Kansas or that he helped lead the president's highly publicized commission on election integrity. She couldn't remember the phone conversation she had with Kobach or their email exchange.
Teramoto rejected several attempts to enlighten her foggy memory. She had to be asked multiple times if she typically arranges for her boss to meet with people she doesn't know.
"If there is somebody who wants to speak to the secretary and it seems like it is something that he would want to talk about, then I would set it up," she said.
U.S. District Judge Jesse Furman initially limited the scope of depositions but left the window open for situations like this. In contemplating the discovery process, he noted Ross overruled senior Census Bureau staff members who concluded the citizenship question would be costly and harm the quality of the count.
The judge determined plaintiffs were likely to find material that indicates defendants acted in bad faith. Typically, the Census Bureau spends up to 10 years testing proposed changes, but this alteration was made quickly and without any testing.
Furman could reach a decision by the end of the week on whether Kobach will be called upon for additional insight.
"Kobach is a critical witness to whether the decision to add the question was the result of political pressure," Underwood said. "And because Mr. Kobach wanted secretary Ross to add the question not for Voting Rights Act enforcement purposes but to dilute the political power of immigrant communities of color, his influence relates to whether the rationale offered by secretary Ross was a pretext and whether the decision was motivated by discriminatory animus."
The immigration coalition's legal team includes Dale Ho, the American Civil Liberties Union attorney who tangled with Kobach earlier this year in case over Kansas law that required voter applicants to show a birth certificate or other proof of citizenship. At a trial in March, Kobach failed to prove claims of widespread voter fraud or show the restrictions were the best way to combat illegal voting.
The judge ruled the law was unconstitutional, issued a contempt citation against Kobach's office and ordered him to take classes.