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As Supreme Court decision nears, lower court orders new look at census citizenship question

Immigration activists rally outside the Supreme Court in April as the justices hear arguments over the Trump administration’s plan to ask about citizenship on the 2020 Census. (J. Scott Applewhite/AP)

A federal appeals court said Tuesday that a Maryland judge should examine new allegations that the Trump administration had a discriminatory intent in adding a citizenship question to the 2020 Census, on the eve of a possible Supreme Court decision on the matter.

The order was part of last-minute wrangling in the lower courts, in the Supreme Court and on Capitol Hill as the justices are set to vote on the issue before the end of their term, presumably this week.

The Supreme Court is considering lower-court decisions that said Commerce Secretary Wilbur Ross violated administrative law and the enumeration clause of the Constitution by proposing to ask the citizenship question of each household. Critics, even in the Census Bureau, say the question could cause an undercount of millions of people who would be afraid to return the form.

The Maryland case would pose different questions: whether the addition would violate equal-protection guarantees and whether it is part of a conspiracy to drive down the count of minorities.

A panel of the U.S. Court of Appeals for the 4th Circuit voted 2 to 1 to send the case back to U.S. District Judge George Hazel so he could consider new evidence that came from the files of a deceased Republican political operative. That operative, Thomas Hofeller, had been in touch with some census officials, and he wrote a memo that said adding the question might help Republicans and white voters in subsequent redistricting decisions based on the census data.

Even as the Supreme Court decision neared, one judge on the panel suggested that Hazel order the question to be put on hold while that was hashed out.

“A preliminary injunction may be necessary to prevent the printing of the Census questionnaire from, at least from the Government’s perspective, rendering the case moot,” wrote Circuit Judge James A. Wynn Jr.

Some census officials have said a decision is needed by the end of June so the forms can be printed; others have said the absolute deadline is in the fall.

Later Tuesday, Solicitor General Noel Francisco, representing the Trump administration, told the Supreme Court that the order from the 4th Circuit “jeopardizes” the census process.

He said the court should “address the equal-protection claim and the immateriality of the Hofeller files in its disposition of the . . . case so that the lawfulness of the Secretary’s decision can be fully and finally resolved.”

He had said in an earlier letter to the Supreme Court that the claims in the Maryland case were “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.”

Challengers of the citizenship question have asked the justices to put their deliberations on hold and let Hazel and a judge in New York consider the new evidence. They noted in a letter to the court that Hazel, in an order Monday, said the new evidence “potentially connects the dots between a discriminatory purpose” and Ross’s decision.

Meanwhile, a House panel released information Tuesday that it said “points to a partisan and discriminatory effort” behind the Trump administration’s move to add the question.

In a memo to members of the House Oversight and Reform Committee, the panel’s Democratic staff said that James Uthmeier, a former senior adviser and counsel to Ross, had refused to answer “dozens of questions” but that he had nonetheless “confirmed key information” about the effort to add the citizenship question.

“Mr. Uthmeier disclosed that Secretary Ross directed him to begin examining the citizenship question within weeks of being sworn in as Secretary and that they had multiple conversations about it well before any request came from DOJ — erasing any doubt about the inaccuracy of Secretary Ross’ claim that he added the citizenship question ‘solely’ at DOJ’s request,” the memo reads.

Ross originally told Congress that his decision to add the question came solely in response to a December 2017 request from the Department of Justice, but lawsuits later produced emails showing that Ross, who oversees the Census Bureau, had been pushing for the question for months before that.

The Justice Department this month dismissed the allegations that it hid the government’s true motives, calling them “frivolous.”

In a statement, a Commerce Department spokesman argued that the panel’s summary of Uthmeier’s interview “mischaracterizes what he said on multiple topics.” He did not immediately respond to a question about what specific aspects of Uthmeier’s remarks the department believes were mischaracterized.

“In addition, Mr. Uthmeier, a former senior department attorney, answered over 400 questions but declined, consistent with his ethical obligations, to discuss privileged communications,” the spokesman said. “That was entirely appropriate.”

The Oversight Committee voted this month to hold two Cabinet officials — Ross and Attorney General William P. Barr — in contempt of Congress in connection with the administration’s efforts to shield documents related to its decision to add the citizenship question.

The panel is recommending a full House vote on contempt, although the timing of such a vote remains unclear.

In a statement issued Tuesday morning, the committee’s chairman, Rep. Elijah E. Cummings (D-Md.), said the Trump administration “claimed that the only reason it wanted to add the citizenship question was to help the Department of Justice enforce the Voting Rights Act, but that claim has now been exposed as a pretext.”

“Official after official appearing before the Committee have refused to answer questions about the real reasons behind their effort, but the mounting evidence points to a partisan and discriminatory effort to harm the interests of Democrats and non-Whites,” he said.

The oversight panel released transcripts Tuesday of interviews with four people on the matter. They include Uthmeier; John Gore, the principal deputy assistant attorney general for the Justice Department’s civil rights division; Gene Hamilton, a former official in the Justice and Homeland Security departments; and Kris Kobach, a former Kansas secretary of state who once headed Trump’s voter integrity commission.

David Nakamura contributed to this report.