Census citizenship question merits more consideration in light of new evidence, judge says

WASHINGTON – A federal district judge in Maryland on Wednesday ruled that new evidence in the case of a census citizenship question merits more consideration, opening the possibility that the question could come before the Supreme Court again even after it rules as expected this month.

U.S. Census 2020 Operational Plan (Photo of report courtesy Census.gov)

Civil rights groups who had sued the government over its addition of a citizenship question to the 2020 census had asked U.S. District Court Judge George Hazel to reconsider his ruling on whether the government was guilty of conspiracy and intent to discriminate after new evidence in the case emerged last month. Files discovered on hard drives of a deceased Republican redistricting strategist suggested that he had communicated with the Trump administration about how to get the citizenship question onto the survey and that the strategist had determined that adding the question would create an electoral advantage for Republicans and non-Hispanic whites. In his ruling Tuesday, Hazel wrote that the plaintiffs’ motion “raises a substantial issue” in the case.

Hazel had ruled in April against the question, joining two other federal judges in finding that the government had violated administrative law when it added it last year. But in that decision, he did not find enough evidence to support the plaintiffs’ assertions that the government intended to discriminate against immigrants, Latinos and Asian Americans by adding the question, or that adding it was part of a conspiracy within the Trump administration to violate the constitutional rights of noncitizens and people of color.

The case is technically closed in Hazel’s court. It now resides with the 4th Circuit Court of Appeals, which can either return the case to Hazel or decide to rule regardless of his recommendation. Hazel’s ruling means the plaintiffs’ lawyers can now request that the appeals court return the case to him.

The Supreme Court is expected to rule this week or next on whether to uphold the three lower courts’ rulings. If Hazel or the appellate court agrees with the Maryland plaintiffs that the administration intended to cause an undercount and deprive racial minorities of their rights, the ruling would bring the question into areas the high court is not currently considering, and the case could come before the Supreme Court when it reconvenes in the fall.

At a hearing in Greenbelt, Maryland, on Tuesday, the plaintiffs’ lawyers argued that the new evidence was enough to prove a clear connection between the strategist, Thomas Hofeller, and Trump administration officials who pushed for the question to be added. Department of Justice lawyers at the hearing sought to discredit the new evidence, calling into question its relevance and its authenticity.

“There’s no evidence that (a 2015 study by Hofeller on the effects of adding a citizenship question) was ever shared with anyone inside or outside the federal government,” said Department of Justice attorney Josh Gardner.

Gardner also said the plaintiffs had failed to authenticate the Hofeller files, adding that a declaration from a computer forensics expert “cannot establish the authenticity of the hard drives or who the authors were,” and he added that “all it shows is they were found in his house.”

Hazel could have simply reversed his earlier decision; his ruling Wednesday does not definitively indicate how he would rule if the case were returned to him. But the plaintiffs’ lawyers hailed it as a win.

“This is a significant move by the district court that gives credence to what we all know, that the government conspired to discriminate against Latinos and immigrants of color when it added a citizenship question to the 2020 census,” said Andrea Senteno, regional counsel for the Mexican American Legal Defense and Educational Fund (MALDEF), a plaintiff in the case.

A Justice Department representative declined to comment.

The Department of Commerce said in a statement that officials have confidence that the Supreme Court will rule in the government’s favor. “Plaintiffs’ new ‘evidence’ is inadmissible, irrelevant, and a transparent ploy to derail the Supreme Court’s consideration of this case at the last possible minute,” the statement said.

Opponents of the question say it will suppress participation by Latinos and immigrants, leading to an inaccurate count. Census data is used to determine hundreds of billions of dollars in federal funding, as well as Congressional apportionment and redistricting.

The Supreme Court had expedited consideration of the question in order to enable census forms to be sent to the printer in July, and it is expected to announce a decision before its term ends next week. In April arguments, the conservative majority appeared inclined to defer to Commerce Secretary Wilbur Ross’ authority in adding questions to the census form, including the one on citizenship.

But after the new evidence emerged, civil rights groups in the New York case asked the high court to delay its ruling, saying if it was not prepared to affirm the lower court rulings, it should send the issue back to a lower court to consider the new evidence.

Thomas Wolf, counsel with the Democracy Program at the Brennan Center for Justice at New York University’s law school, said Hazel’s ruling was a significant development.

“Today’s news opens up the possibility that there could be additional viable legal challenges to the citizenship question beyond what the Supreme Court now has in front of it,” Wolf said.

The Justice Department has denied that Hofeller influenced the administration’s decision to add the question, and characterized the new claims as “frivolous.”

Plaintiffs’ lawyers also suggested in court Tuesday that the July deadline for printing the forms may not be fixed, noting that the census bureau’s chief scientist has said forms could be printed as late as October of this year.

Hazel is expected to issue an opinion with more details. In the meantime, Shankar Duraiswamy, an attorney with Covington and Burling who is representing some of the Maryland plaintiffs, said Hazel’s willingness to reconsider his prior decision “underscores just how significant the Hofeller documents are. . . . These documents make it crystal clear that by adding this question, the Trump administration intended to deprive Latinos and immigrants of political representation.”

Judge Jesse Furman, who ruled against the question in New York, said at a hearing earlier this month that the new evidence was serious, but he declined to act upon it until more formal proceedings can take place later this summer.

As lawyers continue to sift through Hofeller’s files, more material has come to light. Last week, documents emerged showing he was in direct contact with top Census Bureau official Christa Jones as early as 2015 about adding a citizenship question, and lawyers say his business partner evaded a subpoena for computers he took from Hofeller’s house after Hofeller’s death.

The administration this month invoked executive privilege to withhold documents sought by the Democrat-led House oversight committee. Committee Chairman Elijah Cummings, D-Md., on Tuesday sent a letter to Jones, requesting an interview. Lawyers have also sought computers removed from Hofeller’s house by his business partner, but said the partner had evaded their subpoena.

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