NEW YORK — A federal judge said he needs to see a more formal motion before he decides on whether to sanction Trump administration officials for misconduct in lawsuits over their addition of a citizenship question to the 2020 Census, dashing the hopes of opponents of the question who had hoped he would rule before a Supreme Court decision on the case.
Judge Jesse Furman addressed an overflowing Manhattan courtroom in the U.S. District Court for the Southern District of New York six days after plaintiffs’ lawyers in the case had asked him to consider sanctions based on new evidence suggesting defendants may have misled the court about the origins of the question.
Saying the purpose of Wednesday’s hearing was “largely to focus on the issue of process rather than substance,” Furman set a deadline of July 12 for plaintiffs to request a more extensive briefing, with response from the Trump administration due July 26 and a reply from plaintiffs due Aug. 2.
This is well after the Supreme Court is expected to weigh in on whether the question can be added.
After three federal judges, including Furman, ruled against the question earlier this year, the cases were rushed to the high court, skipping the normal appeals process, to get a ruling before census forms are scheduled to be sent to the printer. In oral arguments in April, the conservative majority seemed inclined to side with the government.
Addressing the court, Furman said he understood the seriousness of the issues presented, but he said, “I lack authority to do anything with respect to the merits of the case,” and added, “I don’t want to do anything that would cross the line or seem to cross the line” between his jurisdiction and the that of the Supreme Court.
He added that he was not concerned about the timing of his decision, as leveling sanctions against the defendants would be possible regardless of how the high court rules.
Opponents of the question had hoped the Supreme Court’s ruling might be affected by new revelations last week suggesting the question and its rationale originated from a Republican redistricting strategist who died in August.
Files accidentally discovered in the personal effects of Thomas Hofeller included a 2015 study in which he determined that the addition of a citizenship question to the decennial survey would give a structural electoral advantage to Republicans and non-Hispanic whites, and documents indicating that in 2017 he helped the Trump administration craft a rationale for adding the question.
Plaintiffs’ lawyers said the new documents strengthen their argument that the question was intended to disenfranchise Democrats and minority voters, and contradict sworn testimony by Commerce Secretary Wilbur Ross’s expert adviser A. Mark Neuman and senior Justice Department official John Gore, as well as other testimony by defendants.
The Justice Department this week called the allegations “frivolous” and suggested plaintiffs’ lawyers were trying to derail the Supreme Court’s decision.
Opponents of the question have argued it will suppress response to the survey among immigrant communities, resulting in an undercount in the areas where they live.
Census data is used to allocate hundreds of billions of dollars in federal funding each year, as well as in congressional apportionment and redistricting.
Furman also told the court that because Neuman is represented by his own attorney and not the Justice Department attorneys defending the administration, it would be inappropriate to take substantive action without allowing Neuman to be heard.
Lawyers for the defense told the court they agreed with Furman’s decision. Plaintiffs’ lawyers said after the hearing that they were glad the judge had called the new allegations “serious” and “not frivolous” and said they hoped the high court would agree.
“The Supreme Court, no matter what it decides, is going to be interested in what the truth is,” said John Freedman, an attorney for the firm Arnold & Porter, which represents some of the plaintiffs.
Dale Ho, who argued the case at the Supreme Court on behalf of the American Civil Liberties Union and attended the hearing Wednesday, said the schedule Furman laid out made sense.
“These things take time,” said Ho, the director of the ACLU’s Voting Rights Project. “I don’t think it would have been in anyone’s interest for this to be rushed.”
However, he added, the high court might not want to be rushed, either.
“Does the Supreme Court want to issue a ruling in the shadow of these allegations?” he asked. “The question the Supreme Court has to ask is: Do we issue an opinion and a decision in the shadow of serious misconduct by the government?”
Thomas Wolf, counsel with the Democracy Program at the Brennan Center for Justice at the New York University School of Law, said even without a ruling from Furman in advance of its own ruling, the Supreme Court is now “on notice.”
“To the extent the court is watching, it will find that, in the past week, it has become much harder for it to issue a defensible opinion shielding Secretary Ross and the citizenship question — the question is simply freighted with too much illegality and mendacity to stand,” he said.