Government responds in census case; 4th Circuit remands Maryland case for more fact-finding (Second Update)

Editor’s Note: This post, originally published at 3:45 p.m. on Tuesday, was updated at 5:30 p.m. Tuesday and again at 8:19 a.m. Wednesday.

The Supreme Court is expected to rule on the challenge to the Trump administration’s decision to include a question about citizenship on the 2020 census by the end of the week. But even as the justices presumably push to finalize their opinion in the case, new developments – both at the Supreme Court and elsewhere – relating to the discovery of new evidence could make their task more complicated.

Tuesday the government responded to Monday’s filing by lawyers for the civil-rights groups challenging the use of the question. In a letter from Dale Ho of the ACLU, the groups notified the justices that a federal district judge in Maryland had ruled that new evidence discovered in the files of Thomas Hofeller, a Republican redistricting strategist, had created a “substantial issue” about whether Secretary of Commerce Wilbur Ross had intended to discriminate against Hispanic voters. Although the Maryland case had been pending in the U.S. Court of Appeals for the 4th Circuit, the judge in that case, George Hazel, indicated that, if the case were returned to him, he would fast-track the Maryland plaintiffs’ discrimination and civil-rights claims. Moreover, the groups added, a new study by the Census Bureau suggested that, if the citizenship question is included on the 2020 census, the effect on the response rate for households with residents who are not U.S. citizens will be more significant than previously believed.

The government pushed back, telling the justices in a letter that the “changed circumstances” outlined in the challengers’ letter should not affect the Supreme Court’s ruling on either the merits or the challengers’ motion to send the case back to the lower court for more fact-finding. The recent ruling by the Maryland district court, Solicitor General Noel Francisco argued, suffers from the same problem as the challengers’ other filings since the oral argument: It “is based on a speculative conspiracy theory that is unsupported by the evidence and legally irrelevant to demonstrating that” Secretary of Commerce Wilbur Ross added the citizenship question because he intended to discriminate against Hispanics. And although it is not relevant to the merits of this case for a variety of reasons, the Census Bureau paper that the challengers cite does not reflect the bureau’s official position, Francisco noted.

Shortly after the government submitted its letter to the Supreme Court, the 4th Circuit sent the Maryland case back to the district court for it to consider the Maryland plaintiffs’ discrimination and civil-rights claims in light of the new evidence. In a concurring opinion, Judge James Wynn observed that the government has emphasized the need to finalize the census questionnaire by Sunday, June 30. If the district court isn’t going to decide the plaintiffs’ claims by then – which, Wynn wrote, “appears highly likely” – it might want to consider whether to temporarily block the government from putting the citizenship question on the census until the issues are finally resolved, Wynn suggested. Otherwise, Wynn contended, if the government were to go ahead and start printing the questionnaire forms, the case would be moot.

Tuesday afternoon the government responded to the 4th Circuit’s order with another letter to the Supreme Court. Francisco urged the justices to resolve both the question whether Ross intended to discriminate against Hispanic voters and the dispute about the relevance of the new evidence in their upcoming opinion. If, as Wynn had suggested, the district court in Maryland were to temporarily block the government from including the citizenship question on the census while it conducts more fact-finding, the government argued, the justices would inevitably have to resolve these issues one way or the other, so it would make more sense to do it now, rather than on an emergency basis in the Maryland case.

Later on Tuesday, lawyers for civil rights in the Maryland cases wrote to the Supreme Court, urging the justices to deny the government’s request to decide whether Ross added the citizenship question because he intended to discriminate against Hispanics. Instead, the groups stressed, the justices should allow fact-finding on this issue to go ahead in the Maryland district court.

The groups argued that the question of Ross’ intent had not been briefed or argued in the case now before the Supreme court. Moreover, they added, it’s not clear that the census questionnaire actually has to be finalized by June 30: Although the government has told the justices that the June 30 deadline is a firm one, the Census Bureau’s chief scientist has testified that, with “additional resources,” the deadline could be extended to October 30. But even if the government had to finalize the questionnaire by June 30 and couldn’t include the citizenship question, the groups concluded, it wouldn’t be a problem — to the contrary, the Census Bureau has said that it can provide the Department of Justice with citizenship data that is “of at least equal or better quality if the 2020 Census questionnaire does not include a citizenship question.”

The justices are expected to issue opinions Wednesday at 10 a.m. There is no way to know whether the census case will be one of them.

This post was originally published at Howe on the Court.