Challengers ask justices to put off census decision

With less than three weeks to go before the Supreme Court’s summer recess, the challengers in the dispute over the decision to add a question about citizenship to the 2020 census yesterday asked the justices to postpone their ruling in the wake of new evidence in the case.

In January, a federal district judge in New York barred the federal government from using the citizenship question on the 2020 census, ruling that the government’s conduct violated the federal laws governing administrative agencies. The federal government asked the Supreme Court to review that ruling, and the justices heard oral argument in the case in late April.

In late May, the challengers notified the justices about new evidence that, they said, indicated that Thomas Hofeller, a Republican redistricting strategist, played a key role in the decision to add the citizenship question to the census. They had filed a motion in the district court suggesting that the government be sanctioned because the new evidence contradicted testimony and representations by government officials in the district court proceedings. The government pushed back, calling the accusations “meritless” and an “eleventh-hour effort” to “derail the Supreme Court’s resolution” of the dispute.

In a hearing last week, the challengers explained in their filing yesterday, the district court agreed that the new allegations were “serious,” but concluded that it could not “address their relevance to the merits without instructions from the Supreme Court.” But these new revelations, the challengers continued, “cut to the heart of this case”: Not only do they make clear that the government hid its actual rationale for adding the citizenship to the 2020 census, but the “new evidence strongly suggests that” the government’s real rationale for adding the question – providing an advantage to whites and Republicans in future elections – “was the diametric opposite of its stated reason” for adding the question, which was to obtain data to allow the Department of Justice to better enforce federal voting rights laws.

Therefore, the challengers pleaded, if the Supreme Court does not uphold the district court’s decision barring the government from using the citizenship question, it should send the case back to the lower court for it to look at whether Hofeller’s “partisan and racially discriminatory motives for adding a citizenship question were shared by, or should otherwise be imputed to, relevant Commerce officials,” including Secretary of Commerce Wilbur Ross. The district court could then determine whether supplemental fact-finding and changes to its judgment are needed, the challengers reasoned, allowing the Supreme Court “to take up the matter promptly, upon a complete record.”

The challengers acknowledged that the government has asked the justices to issue their ruling by the end of June, to give it enough time to finalize the census questionnaire. However, the challengers noted, there is more room to maneuver than that timetable suggests: A government witness testified that the questionnaire can be finalized as late as October 31, 2019. “Given the massive and lasting consequences of the once-in-a-decade census,” the challengers emphasized, “it is imperative that this case be decided on the basis of a complete and accurate record.”

This post was originally published at Howe on the Court.