Constitution Daily

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A new move to head off citizenship question on census

June 13, 2019 by Lyle Denniston

 

With time running out for the Supreme Court to rule on the Trump administration’s plan to ask everyone in the nation about their citizenship during the 2020 census, the challengers boldly asked the Justices on Wednesday night to give them another chance to block that question. The new filing warned of the Court making a ruling based on a “tainted record, under a shadow that the truth will later come to light.”

The highly unusual maneuver comes just days before a decision has been expected. It seeks to put before the Justices two highly controversial claims not raised in the case now before the Court: that the citizenship question was prompted by hidden racial bias and partisan favoritism.

Citing new evidence that has recently come to light (evidence that Trump administration lawyers are vigorously contesting in lower courts), the challengers told the Justices that “these revelations go to the heart of this case.”

The new material, the filing added, “strongly suggests” that Commerce Secretary Wilbur Ross’ “real rationale [for asking about citizenship] was the diametric opposite of the stated reason: not to protect minority rights through better enforcement of the [Voting Rights Act], but to facilitate a partisan advantage in redistricting and to dilute the electoral influence of voters of color.”

The Supreme Court has the option of simply ignoring the new plea and moving ahead to decide the case on the basis of the record as it was assembled in the case in a federal trial court in New York City. No one outside the Court can know what the Justices were likely to decide in the final judgment, but the challengers appeared to be clearly concerned about the prospect that the Justices could be moving toward a ruling to uphold Ross’ decision to add the question.

If the Supreme Court is going to take the new request into account, the likelihood is that it will ask for a quick response from administration lawyers. If it does so, that will be a clear sign that the new filing is being taken seriously. Such a response probably would repeat arguments that the government’s team has been making in lower courts to try to head off new, recently-filed challenges before the judge in New York and another judge, in Maryland.

Among those arguments made so far by the administration are that the evidence is not new, is not actually evidence in a legal sense, does not prove what the challengers contend that it does, is too late to be made a part of the case, and that any action taken at this stage based on the new claims would be deeply prejudicial to the administration as the legal defender of Ross’ decision.

The Trump legal team has also contended that the challengers have been pursuing their opposition in the Supreme Court on one theory and are now attempting to rely on a new theory. Their prior claim, the government has said, was that adding the question will result in under-count of the nation’s minority, especially its Hispanic population, skewing the results. Lately, the government lawyers have asserted, the challengers have been trying to make the dispute about racial questions and about partisanship in redrawing congressional and state legislative districts.

Although the Justices have been moving toward a final decision before they plan to recess at the end of this month, based upon an administration argument that there is a June 30 deadline to draw up the census forms, the challengers contended that the Census Bureau actually can take until October 31 to do so. They cited testimony to that effect in the lower court.

Thus, the new filing said, “there is time” for the Court to pause the case for a limited period, to give the trial judge in New York City a chance to get answers to questions that the challengers are arguing have arisen out of the new evidence they have cited.

That evidence, in summary, is this:

First, in the computer files of Dr. Thomas Hofeller, a now-deceased expert on legislative redistricting who has helped Republicans across the nation to draw maps favorable to their candidates, there are materials that show he favored adding the citizenship question to the census because it would produce census population results favorable to Republicans and non-Hispanic whites and unfavorable to Democrats.

Second, that Dr. Hofeller was a “ghost” author of at least a part of a letter that the Justice Department prepared for Commerce Secretary Ross in favor of adding the citizenship question and that he supposedly invented the Voting Rights Act rationale upon which Ross has publicly relied.

In the challengers’ new filing with the Justices, the challengers contended that the role of Dr. Hofeller helps prove their claim that the voting rights argument was a mere “pretext” for the real reasons: race and partisan advantage.

The new material, the filing said, is directly related to what is now before the Justices, because a key question is whether Ross did not believe in the voting rights argument but only used it as a cover for the administration’s actual motives. The Trump administration has argued that the Court should uphold Ross’ decision because, it has argued, he did believe in the voting rights rationale, and that has not been disproved.

The challengers suggested that, if the Supreme Court were inclined at this point to rule against the addition of the citizenship question, then it could simply move ahead and make that decision without acting on their new claims and the recently discovered materials.

But if the Court is not ready to rule that way, the new filing requested that the Justices send the case back to the trial judge in New York City, with a deadline for the judge to get answers to the questions that the new materials are said to raise about why the citizenship question plan was made.

A limited new review in the New York court, the challengers said, would allow U.S. District Judge Jesse Furman to conduct an inquiry and decide facts bearing upon “whether Dr. Hofeller’s partisan and racially discriminatory motives for adding a citizenship question were shared by, or should otherwise be imputed to relevant Commerce [Department] officials, including the Secretary.”

Since the Census Bureau could take until October 31 to finalize the census forms, the challengers asserted, “the Court need not decide this case on a record that omits or conceals critical facts about the true process and reasons for adding a citizenship question….If ever there was a case that should be decided on a true and complete record, it is this one. … This Court should not bless the Secretary’s decision on this tainted record.”

The new filing did not explain the apparent switch in the strategy of the challengers. When they first notified the Justices on May 30 that they were filing their new evidence with Judge Furman, asking him to punish government officials for alleged misconduct in the case, they did not ask the Justices to do anything. It is not clear, in fact, what they thought the Justices would do with information arriving so late in the processing of the case.

But, at a hearing on June 5, Judge Furman indicated that he could not take any action while the case was awaiting a Supreme Court ruling and set a schedule running into August to consider what to do next. That apparently prompted the challengers to return to the Court Wednesday night with the new request for an opportunity to strengthen their opposition to the citizenship question.

 Lyle Denniston has been writing about the Supreme Court since 1958. His work has appeared here since mid-2011.

 

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