Constitutional Law

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A federal appeals court is allowing a Maryland federal judge to consider new evidence of an alleged discriminatory motive in the Commerce Department’s decision to add a citizenship question to the 2020 census.

The 4th U.S. Circuit Court of Appeals at Richmond, Virginia, ruled Tuesday, a day after U.S. District Judge George Hazel issued an opinion explaining his ruling last week that the new evidence merits consideration. The National Law Journal, the Hill, the Washington Post and TPM have coverage.

The plaintiffs want to introduce evidence that the Trump administration added the citizenship question to the census to create an election advantage for Republicans when census data is used in redistricting. The plaintiffs say the evidence shows an equal protection violation.

The new evidence was discovered on computer files of the late redistricting specialist Thomas Hofeller. He had conducted a 2015 study finding that the citizenship question would clearly disadvantage Democrats. The computer files also indicated that Hofeller helped ghostwrite a Justice Department letter asking the Commerce Department to add the question, according to those opposing the citizenship question.

The DOJ letter had cited the need for better citizenship data to assist in enforcement of the Voting Rights Act. Plaintiffs challenging the citizenship question have argued that reason is pretextual.

Hazel previously ruled that adding the census question was arbitrary and capricious in violation of the Administrative Procedure Act, as well as a violation of the Constitution’s enumeration clause, which requires an actual enumeration of the U.S. population. He did not find a violation of the equal protection clause based on the evidence then before him.

The U.S. Supreme Court is considering the enumeration and administrative issues in a pending New York case that could be decided any day. The plaintiffs in that case, Department of Commerce v. New York, have asked the Supreme Court to put off a decision in light of the new evidence, SCOTUSblog has reported.

On Monday, challengers in the New York case informed the Supreme Court about the federal judge’s ruling and about a new U.S. Census Bureau paper, SCOTUSblog reports. The new paper found that the addition of a citizenship question will have a greater impact on response rates by noncitizens than was previously believed.

The DOJ told the Supreme Court in a letter Tuesday that the new allegations involving Hofeller are “based on a speculative conspiracy theory that is unsupported by the evidence and legally irrelevant to demonstrating that Secretary Ross acted with a discriminatory intent.” The DOJ also said the new study postdates Ross’ decision and sheds no light on whether his rationale was arbitrary and capricious.

A Supreme Court decision for the government on the administrative and enumeration clause issues could still leave unresolved the equal protection issue.

A concurring judge on the 4th Circuit panel, James Wynn Jr., said “it may be prudent upon remand” for the Maryland district judges to issue a preliminary injunction blocking the government from adding the citizenship question.

Wynn noted the government’s assertion that the census questionnaire must be finalized by June 30. If the district judge is not able to complete an evidentiary hearing before that, the census form could be printed and the government could contend that the case is moot, Wynn said.

Hazel will hear evidence in two consolidated cases, La Union Del Pueblo Entero v. Ross and Kravitz v. Department of Commerce.

See also:

ABAJournal.com: “Trump asserts executive privilege to withhold documents on citizenship census question”