U.S. District Court Judge George J. Hazel ruled
in April against the question, joining two other federal judges in finding that the government had violated administrative law when it added the question last year. But Hazel did not find enough evidence to support plaintiffs’ claims that the government intended to discriminate against immigrants, Latinos and Asian Americans by adding the question, or that adding the question was part of a conspiracy within the Trump administration to violate the constitutional rights of noncitizens and people of color.
However, files found in the personal effects of deceased Republican redistricting strategist Thomas Hofeller and made public last week suggest he had been working with the Trump administration to add the question to create an electoral advantage for Republicans and non-Hispanic whites, plaintiffs’ lawyers said.
Attorneys for the American Civil Liberties Union last week asked a New York federal judge to impose sanctions on the government, which could include reopening or amending the case there; a hearing before that judge is scheduled for Wednesday. The Justice Department has denied that Hofeller influenced the administration’s decision to add the question.
MALDEF and AAJC already had appealed Hazel’s ruling on intentional discrimination, and that appeal remains in place.
The three lower-court rulings against the question have been appealed to the Supreme Court, which heard the case in April and is expected to decide by the end of this month if the question can be added to the survey.
At oral arguments in April, the Supreme Court’s conservative justices seemed inclined to defer to Commerce Secretary Wilbur Ross’s authority in adding questions to the census form, including the one on citizenship.
If the court followed normal procedure, it voted that week on the outcome of the case, and the justices are now writing the opinion.
But if the Maryland judge overturns his earlier ruling on the conspiracy and intentional discrimination charges, it will take the question into areas the high court is not currently considering.
Experts said it would be rare but not unheard of for the court to reopen the record on a case in which it has completed arguments and presumably is writing an opinion. “I wouldn’t say it’s too late,” said Jeffrey L. Fisher, co-director of the Supreme Court Litigation Clinic at Stanford Law School. “No case is decided until the opinion comes out.”
The court previously has had to take note of changes that have occurred since argument, Fisher noted — when a litigant dies, for instance, or when the law or government regulation at issue has been modified. The options normally could include asking for supplemental briefings or returning the case to a lower court to consider the changed circumstances.
Fisher said the court would be unlikely to “make any conclusions on new evidence” that had not been subjected to the usual adversarial legal process. In this case, the Justice Department contends that “neither Hofeller nor his unpublished study played any role whatsoever in the drafting” the letter requesting the addition of the citizenship question.
Andrew Pincus, a Washington lawyer who regularly argues before the court, said another issue is “the pincer of deadlines” facing the justices. They are scheduled to complete their work at the end of the month, and the government says it needs an answer by then to complete the census form. That would argue against further development of the record.
It would be unlikely that the court would take any action regarding the new information unless the challengers are able to convince the district judges of its merit. If the Maryland litigants were successful in convincing the judge that the decision to add the question was based on discrimination, that could give challengers another way to approach the Supreme Court.
MALDEF and AAJC had claimed the administration intended to cause an undercount of minorities in violation of the equal-protection clause of the Fifth Amendment and that it conspired to deprive racial minorities of their constitutional rights.
In his ruling, Hazel said there was evidence that certain administration officials harbored racial animus and may have been motivated to add a citizenship question for discriminatory reasons, but what was missing was direct evidence that Ross acted on that discriminatory intent.
Plaintiffs’ lawyers say they now have that missing piece.
“The new evidence directly connects the administration’s racially discriminatory motives to Secretary Ross and the other Department of Commerce . . . and DOJ officials responsible for the citizenship question decision,” said Denise Hulett, lead attorney for MALDEF.
The Justice Department did not respond to a request for comment on the latest Maryland filing. In a letter to the New York judge last week, it said the new allegations were part of an “eleventh-hour campaign to improperly derail the Supreme Court’s resolution” of the issue.