Challengers urge justices not to decide racial-discrimination claim in census case

With less than 24 hours before the justices are expected to issue their final decisions of the term, yet another filing in the dispute over the decision to add a question about citizenship to the 2020 census arrived at the Supreme Court. This one came from the challengers in the case, who urged the justices to turn down the federal government’s request for a ruling that Secretary of Commerce Wilbur Ross did not intend to discriminate against Hispanic voters when he made the decision to include the citizenship question.

The letter from New York Solicitor General Barbara Underwood was the latest in an unusual flurry of filings over the past two days. The case was argued in late April. Normally, the stretch between the oral argument and the announcement of the opinion is relatively (if not completely) quiet, but in late May the challengers notified the court about new evidence that, they said, indicated that the government wanted to add the citizenship question to provide whites and Republicans with an advantage in future elections. Two weeks later, they asked the justices to send the case back to the lower court to allow it to consider that new evidence. The justices have not yet acted on that request.

Although the New York case is before the justices, it is not the only challenge to the decision to include the citizenship question in 2020. In April, a federal judge in Maryland had ruled for civil-rights groups challenging Ross’ decision, but he rejected their claim that Ross had intended to discriminate against Hispanic voters.

The civil-rights groups appealed that ruling to the U.S. Court of Appeals for the 4th Circuit, which yesterday sent the case back to U.S. District Judge George Hazel for him to consider the groups’ discrimination claim in light of the new evidence. In a concurring opinion, Judge James Wynn suggested that Hazel might want to consider whether to temporarily block the government from including the citizenship question on the census questionnaire.

In the wake of the 4th Circuit’s order yesterday, the government wrote to the justices, asking them to decide the question of Ross’ intent in their opinion in the New York case. Doing so, the government reasoned, would allow the court to settle the issue once and for all, and to avoid having to do so in an emergency appeal from the Maryland case.

In a letter on behalf of all of the challengers in the New York case, Underwood urged the justices to deny what she characterized as the government’s “extraordinary request.” The question of whether Ross intended to discriminate against Hispanics wasn’t briefed or argued in this case, she emphasized, except for one “conclusory paragraph” in the government’s brief. Under the Supreme Court’s normal practice, she continued, the justices wouldn’t address this question; it makes even less sense for them to do so when the government’s request is based on “speculative concerns about a potentially adverse decision in a separate case not before this Court.”

This post was originally published at Howe on the Court.