Challengers in census case notify justices about new evidence

It has been just over a month since the Supreme Court heard oral argument in a challenge to the decision by Secretary of Commerce Wilbur Ross to include a question about citizenship on the 2020 census. A federal district court in New York blocked the government from using the question, ruling that the government’s conduct violated the federal law governing administrative agencies. But the district court concluded that the challengers had not shown that the question was intended to discriminate against Latinos and other immigrant communities. Today the challengers alerted the Supreme Court to new evidence indicating that a Republican redistricting strategist played a key role in the decision to add the citizenship question in order to create an advantage for whites and Republicans in future elections.

The notification came in a letter to the Supreme Court from Dale Ho, a lawyer from the American Civil Liberties Union who argued on behalf of the challengers last month. The challengers, Ho wrote, have filed a motion in the district court suggesting that the government should be sanctioned because the new evidence contradicts both testimony by senior government officials and representations by government lawyers in the case.

In particular, the motion filed in the district court (and included as an exhibit to Ho’s letter) explained, the strategist, Thomas Hofeller, “concluded in a 2015 study that adding a citizenship question to the 2020 census ‘would clearly be a disadvantage to the Democrats’ and ‘advantageous to Republicans and non-Hispanic Whites’ in redistricting.” Hofeller, the motion continued, was the real author of a draft letter from the Department of Justice to the Department of Commerce asking to include the citizenship question and indicating that the citizenship data would help the DOJ to better enforce federal voting rights laws. Moreover, the motion added, “the letter that DOJ eventually sent to Commerce in December 2017 adopted the same” voting-rights “rationale and bears striking similarities to Dr. Hofeller’s 2015 study stating that a citizenship question on the Census was essential to advantaging Republicans and white voters.”

“Based on this new evidence,” the motion concluded, “it appears that both” Mark Neuman, a Ross advisor, and John Gore, a senior DOJ official, “falsely testified about the genesis of DOJ’s request to Commerce in ways that obscured the pretextual character of the request.”

The district court, Ho’s letter to the justices noted, has already scheduled a hearing in the case for Wednesday, June 5. The government has asked the Supreme Court to rule on the census dispute by the end of June, so that it can finalize the census questionnaire and get the forms printed in time for distribution next year.

This post was originally published at Howe on the Court.