Finding that “a substantial issue” has been raised in the claim that racial bias led the Trump Administration to plan to ask a citizenship question as part of the 2020 census, a Maryland federal judge has created a potential new complication in this historic constitutional controversy.
In a brief order on Wednesday, with a promise to explain it later in a written opinion, U.S. District Judge George J. Hazel of Greenbelt, MD, set the stage for further exploration by him of the racial discrimination issue even as the Supreme Court seems to be on the threshold of ruling on other objections to the citizenship inquiry.
Judge Hazel did not spell out specifically what the next step will be in his court, but even his limited two-paragraph order was a significant even if temporary victory for groups trying to block the Census Bureau from questioning everyone in America next year about their citizenship. His action kept alive for the time being the racial bias claim that Trump Administration lawyers have been trying to keep from being explored at all.
If the Maryland case does move forward and leads to a new ruling that racial bias played a significant role in adding the citizenship question, and if that happens before the Supreme Court has ruled on the case in the form that now exists there, it could raise a new question that the Justices might have to confront before finally settling the citizenship controversy.
The Maryland judge cannot actually take his next step unless a federal appeals court, the U.S. Court of Appeals for the Fourth Circuit, agrees to send back to the judge the case that is currently pending on appeal to that next higher court. Whether the Fourth Circuit Court will do so should be known shortly. The judge told the challengers to act “promptly” to notify the appeals court of the new development.
The Supreme Court appears to be close to a decision on whether it would be illegal or even unconstitutional to add the citizenship question to the census, but the racial bias objection to the question is not even before the Justices as they move toward a ruling. The only issues the Justices are pondering are whether the addition of the question would violate federal laws that control how the Census Bureau is to prepare for the national population count, or would violate the Constitution’s command that everyone be counted in the census.
Thus, if Judge Hazel is allowed to go forward on the race issue, that would not appear to conflict with anything the Justices might decide as they wind up their term with final decisions over this week and next. (The racial discrimination issue was raised with the Supreme Court a week ago in a new filing there by the challengers, but so far the Justices have taken no action on that and they appear to have no legal obligation even to acknowledge it before deciding the issues that are directly before them in a case from New York.)
The racial discrimination claim was previously turned aside by Judge Hazel in a ruling in April, when he blocked the citizenship question based on other issues. He said then that the challengers had not proved that Commerce Secretary Wilbur Ross, who supervises the census, had made the final decision to add that question based upon bias against Hispanics living in the U.S. in an attempt to reduce their participation in the census.
Recently, however, the challengers obtained records from the computer files of a now-deceased Republican political adviser, who had concluded in a private study that adding the question about citizenship to the census would result in a political advantage for Republicans and non-Hispanic whites and a disadvantage for Democrats. This information, the challengers contended, made its way to Trump Administration officials – including Secretary Ross – and led them to push to add the citizenship question, both for racial and for partisan reasons.
The challengers thus asked Judge Hazel to reconsider his earlier rejection of the race bias claim in the wake of their new evidence. They relied on a federal court rule that allows a trial judge to reconsider a prior ruling based upon later-discovered evidence.
Judge Hazel was asked explicitly to take one of two actions in response to that evidence: first, if the case were to be returned to him by the Fourth Circuit Court, to declare that he is prepared to rule that the new evidence now proves the racial bias claim as a new basis for blocking the citizenship question, or, second, at least to declare that the claim of racial bias raises “a substantial issue” that the challengers should be allowed to explore further.
In his brief order on Wednesday, Judge Hazel chose the second, less ambitious suggestion, declaring only that the race question did raise “a substantial issue.”
The race issue is related to but in some ways distinct from another claim that the challengers have made in trying to block the citizenship question: that households of Hispanics would be less likely to fill out the citizenship question for fear of deportation of relatives living in the U.S., resulting in a significant under-count of millions of people, with loss of seats in the U.S. House of Representatives and loss of federal funds for states where Hispanics are more concentrated in the population.
If the case does move along further in Judge Hazel’s court on the race issue, he will have to deal with a significant question of timing. The Census Bureau has said that it needs to know by the end of this month what it is going to be permitted to put on the census forms that will go to every household next year. The Supreme Court has been weighing the case now before it with that date in mind; in fact, it accelerated its review of the case because of that time question.
The challengers, however, have newly argued that the Census Bureau actually could finalize the forms by any time up to October 31, so there is time for exploration of the racial bias claim. Trump Administration lawyers have disputed this argument, contending that June 30 is a firm deadline for the Census Bureau to complete the contents of the 2020 forms.
Lyle Denniston has been writing about the Supreme Court since 1958. His work has appeared here since mid-2011.
