Constitution Daily

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New move to test the race bias issue on the 2020 census

June 6, 2019 by Lyle Denniston


A claim of racial bias against the Trump administration in planning to ask everyone about their citizenship in the 2020 census may now emerge anew, potentially complicating the conduct of the next count of the nation’s population. The issue is one that the Supreme Court is not even considering as it prepares to rule on the constitutional controversy surrounding the census.

Even as the racial question arose again in a lower federal court in Maryland, a judge in another lower federal court in New York indicated on Wednesday that he does not plan to move quickly to decide on another new dispute over the census: Should government officials and advisers be punished for their role in the highly controversial plan to use the census to gather data about citizenship? The judge said that was a side issue to the controversy as it now awaits a Supreme Court ruling.

These two new developments are quite different in form, but they both grow out of the bitterly fought court battles over the citizenship question. Each development has arisen at what is almost the last minute because the Census Bureau has said it needs to know by the end of June whether it is allowed to put the citizenship question on the census forms that will go to every household in America.

The Supreme Court has speeded up its review of the legality of that plan, but it is expected to decide only two issues, and neither is a question about racial discrimination.

The first issue is whether asking about citizenship violates the Constitution’s census clause because it is likely to result in a serious under-count of the nation’s actual population, missing many Hispanic and other non-white residents who are living in the U.S. (The clause has been understood to mean that everyone is to be counted, citizen or not, legal resident or not.)

The second issue is whether administration officials in adopting that question violated federal laws on how the census is to be conducted or federal laws that control federal agencies’ administrative processes.

There are many challenges to the plan from state and local governments, and an array of civil rights groups. And most of them also sought to have the courts rule on the additional claim that the question actually was motivated by racial bias, against Hispanics in particular.

But two judges who ruled that it would violate federal statutes to ask the question, and thus barred it, also ruled that the challengers had not offered enough evidence to show that Commerce Secretary Wilbur Ross (who oversees the Census Bureau) had acted out of an intention to discriminate on the basis of minority race. Ross had the final say on whether to add the citizenship inquiry. U.S. District Judge George J. Hazel of Greenbelt, Md., ruled against the bias claim in the case before him, as did U.S. District Judge Jesse M. Furman of New York City in a separate case.

The Hazel ruling is now under review by the U.S. Court of Appeals for the Fourth Circuit, and the Furman decision is under review by the Supreme Court. But the part of Judge Furman’s decision rejecting the racial bias claim is not before the Justices, because the challengers did not ask the Justices to review that part of the Furman ruling and the Justices did not add the question on their own.

The appeal pending before the Fourth Circuit Court in response to Judge Hazel’s decision directly raises the claim of racial discrimination, but the Circuit Court has put its review on hold pending the decision by the Supreme Court in the case that moved up from Judge Furman’s ruling.

That was the situation that existed near the end of May, as the Supreme Court moved forward in its private preparation of a ruling on the citizenship controversy.

However, a group of challengers accidentally came upon new evidence that they would argue would show that Secretary Ross and other Administration officials had covered up the fact that a now-deceased Republican operative had a key role in influencing the decision to ask about citizenship, and that individual had pointed out that asking the question would produce an advantage for Republicans and whites and a disadvantage for the Democrats. It was that partisan motive, tinged with anti-Hispanic bias, that was the reason to add the question, the challengers contended.

They submitted their new material to Judge Furman, and simultaneously sent copies to the Supreme Court. They did not know whether the Supreme Court would do anything about it at this late stage, but they asked Judge Furman to impose sanctions on the individuals involved.

Meanwhile, on Monday, several challengers in the Maryland case asked Judge Hazel to reopen the case in that court, asserting that the newly discovered evidence provided the proof of their claim of anti-Hispanic bias in planning to add the citizenship question.

“This evidence provides the link between the explicitly discriminatory purpose behind the citizenship question and the Commerce Department’s actions, a link that this court found wanting in the record and thus preventing it from ruling” in favor of the challengers’ claim of a constitutional violation of equal legal rights and a violation of a federal law that outlaws plots to violate someone’s civil rights.

Because the Maryland case is now pending, and on hold, at the Fourth Circuit Court, Judge Hazel generally would not have the authority to consider the new evidence. But the challengers are relying upon a provision in federal court rules that would allow Judge Hazel to issue an “indicative ruling” – that is, a kind of advisory opinion on what he would decide if the case were returned to him by the Fourth Circuit for that purpose.

The challengers urged the judge, in such a ruling, to conclude that there was racial bias, or at least that the challengers had raised a substantial argument on that point. If the case were then sent back to the judge, and if he ruled as asked, he could issue a new decision forbidding the addition of the citizenship question. That would not interfere with any coming decision by the Supreme Court, because the race issue, as indicated, is not before the Justices.

Judge Hazel reacted quickly on Tuesday, ordering Trump administration officials to file a response by next Monday, with the challengers to file a final reply on next Friday. The judge scheduled a hearing on the plea for June 18.

If the judge ruled quickly after that hearing, his decision might be issued before the Supreme Court rules in the New York case. And a quick ruling could stop the Census Bureau from moving ahead to add the question, even if the Supreme Court were to rule in coming days to allow the question.

It appeared on Wednesday, however, that the review by Judge Furman of the challengers’ new evidence will not be a factor in what happens this month on the census controversy. The judge, during a brief public meeting with lawyers in New York City in the afternoon, said that he saw “no reason to rush this process,” noting that the question of possible sanctions of officials involved with the census question was “collateral” to what the Supreme Court is about to decide.

Judge Furman also commented that, while the Justices were weighing the controversy, “I don’t want to do anything that would cross the line or be seen to cross the line.” He then issued an order calling for further court filings by the challengers on July 12, by the other side on July 26, and a reply by the challengers on August 2.

That schedule clearly indicated that Judge Furman will not be deciding the issues in his court until the Supreme Court has issued its decision and gone into its summer recess. The fact that the judge will not rule soon probably enhances the prospect that the Supreme Court would not take action on the filings that have so far been shared with the Justices.

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


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