2020 census questionnaires go to printer without citizenship question — but government says it will continue to look for “path forward” (UPDATED)

This post was updated at 6:23 p.m. on July 3, 2019, to reflect recent developments.

UPDATE: In the wake of tweets from President Donald Trump branding as “fake” the news that the federal government was dropping its quest to include a question about citizenship on the 2020 census, U.S. District Judge George Hazel called for a telephone conference call in the proceedings in Maryland on Wednesday, July 3. During the call, Department of Justice lawyer Joshua Gardner told Hazel that the president’s tweet was the “first I had heard of the president’s position on the issue,” but Gardner “confirmed that the Census Bureau is continuing with the process of printing the questionnaire without a citizenship questionnaire, and that process has not stopped.”

However, Jody Hunt, the assistant attorney general for the civil division, then told Hazel that attorneys “at the Department of Justice have been instructed to examine whether there is a path forward, consistent with the Supreme Court’s decision, that would allow us to include the citizenship question on the census. We think there may be a legally available path under the Supreme Court’s decision.” If so, Hunt continued, “our current plan would be to file a motion in the Supreme Court to request instructions on remand to govern further proceedings in order to simplify and expedite the remaining litigation and provide clarity to the process going forward.”

Hazel instructed the parties in the Maryland case to submit, by 2 p.m. on Friday, either a stipulation that the government will not make any further efforts to include a citizenship question on the census or a scheduling order for how the parties would proceed on the plaintiffs’ claim that an intent to discriminate against minorities was behind the government’s decision to include the citizenship question. 

Meanwhile, DOJ lawyers made similar statements in a letter to the federal district judge presiding over New York v. Department of Commerce, the challenge to the citizenship question in which the Supreme Court issued its ruling last week. They explained that the Department of Justice and the Department of Commerce “have now been asked to reevaluate all available options following the Supreme Court’s decision and whether the Supreme Court’s decision would allow for a new decision to include the citizenship question on the 2020 Decennial Census.” If the Department of Commerce “adopts a new rationale for including the citizenship question on the” census, they continued, the government will “immediately notify” the district court.

Last week a divided Supreme Court ruled that the Trump administration’s stated reason for including a question about citizenship on the 2020 census – to help the Department of Justice better enforce federal voting rights laws – was a pretext. The “evidence,” Chief Justice John Roberts wrote, “tells a story that does not match the explanation that” Secretary of Commerce Wilbur Ross provided. The court’s four liberal justices joined Roberts in sending the case back to the Department of Commerce for a do-over, but on Tuesday, July 2, the government announced that the 2020 census will apparently not include the question after all.

Ross had declared last year that a question about citizenship would be included on the 2020 census. That announcement drew an immediate challenge from New York and other state and local governments, as well as several immigrants’ rights groups. The challengers feared that, if a question about citizenship were part of the census, households with residents who are not U.S. citizens would be less likely to respond, leading to an inaccurate count. And that, the challengers worried, could cost the states seats in the House of Representatives and millions of dollars in federal funding.

In January, a federal district court in New York blocked the government from including the citizenship question on the census. The Trump administration asked the Supreme Court to weigh in, which the justices agreed to do; they heard oral argument in the case in late April. Roughly a month later, the challengers notified the justices about new evidence suggesting that Thomas Hofeller, a Republican redistricting specialist who died last year, had played a role in the decision to add the citizenship question, and that the question had been included in the hope of providing whites and Republicans with an advantage in future elections. The evidence led to a series of last-minute filings in the Supreme Court and in a federal court in Maryland, where a district judge had reopened another challenge to reconsider whether Ross had wanted to add the citizenship question to discriminate against Hispanics.

Last week, a fractured court agreed with the government that the Constitution allowed Ross to decide to use the citizenship question, and that he could do so even though employees of the Census Bureau had recommended another approach to gathering citizenship data. The court noted that it was also reasonable for Ross to decide to use the question even if it might lead to a lower response rate from households with residents who are not U.S. citizens. But at the same time, Roberts stressed, the government needed to provide a better explanation for its decision.

In the wake of Thursday’s ruling, it wasn’t immediately clear what the government planned to do. The Department of Justice indicated only that it was “disappointed” by the ruling but would “continue to defend this Administration’s lawful exercises of executive power.” President Donald Trump seemed to leave open the possibility that the administration would still seek to include the question, tweeting that he had asked the lawyers “if they can delay the Census, no matter how long,” until the Supreme Court “is given additional information from which it can make a final and decisive decision on this very critical matter.”

But on Tuesday, July 2, the government seemed to close the door on including the question. In an email to lawyers involved in the case that was circulated widely on Twitter, Department of Justice attorney Kate Bailey wrote that the “decision has been made to print the 2020 Decennial Census questionnaire without a citizenship question,” and “the printer has begun the printing process.”

With the legal battle over the citizenship question apparently over, the start of the 2020 census is approximately seven and a half months away: The first enumeration begins on January 21, 2020, in Toksook Bay, Alaska.

This post was originally published at Howe on the Court.