Supreme Court Gets Census-Case Twist With Evidence of Racial Goals

(Bloomberg) -- The Supreme Court was dealt a curveball in its review of Trump administration plans to add a citizenship question to the 2020 census as new evidence surfaced about the government’s motive.

The evidence shows that a Republican redistricting consultant “played a significant role” in the decision to add the query to the decennial survey for the first time since 1950, according to a letter sent Thursday to U.S. District Judge Jesse Furman in Manhattan by the New York Immigrant Coalition. The group is leading an array of parties suing to bar the question.

The Coalition, which alerted the high court to the letter, said the consultant concluded in a 2015 study that the citizenship question would ultimately give Republicans and white voters more clout, while the government had said it was simply gathering data to help it enforce the Voting Rights Act.

The Census Bureau has found that adding the question to the census, which is used to apportion legislative seats and federal funding, could depress the response rate of minority households.

The Justice Department said the Coalition’s claims are false and that the consultant’s study “played no role” in the department’s 2017 request to put a citizenship question on the decennial census.

“These unfounded allegations are an unfortunate last-ditch effort to derail the Supreme Court’s consideration of this case,” a department representative said in a statement.

Impact on High Court

It isn’t clear how, or whether, the new information might affect the case, argued before the Supreme Court on April 23 and likely to be decided by the end of June. The court’s usual practice is to take a preliminary vote after argument, and a draft majority opinion would then circulate among the justices.

The court typically bases its rulings on the evidence that was before the trial judge. But the justices could make an exception if they conclude that the U.S. misled Furman about Commerce Secretary Wilbur Ross’s purpose in adding the question to the census, overriding the Census Bureau’s own recommendation. The Census Bureau is part of the Commerce Department.

“For the first time, we have concrete evidence of what that motive may have been, which is not to protect minority voting rights but to dilute them,” said Dale Ho, a lawyer for the American Civil Liberties Union who represents challengers to the citizenship question. “The newly discovered evidence is directly relevant to the issue of pretext, which is one of the issues that’s before the Supreme Court right now.”

The immigrants’ group asked Furman to let it publicly release redacted portions of the evidence and to consider sanctions against the U.S. He ordered the government to respond by Friday morning to the redactions request and by Monday on the sanctions. A hearing was scheduled for Wednesday.

‘Non-Hispanic Whites’

The Coalition said the evidence shows that the Republican consultant, Thomas Hofeller, concluded in the 2015 study, commissioned by the conservative website Washington Free Beacon, that adding a citizenship question would hurt Democrats and help “Republicans and non-Hispanic whites” in redistricting.

It said that Hofeller, who died in August, helped draft a letter to the Justice Department in August 2017 asking for the question to be added “and providing the Voting Rights Act enforcement rationale for doing so.” Ross said he was reinstating the query at the behest of the department to help it enforce the act.

The letter that was eventually sent to the Commerce Department adopted the same rationale and “bears striking similarities” to Hofeller’s 2015 study, the group said. It said the evidence shows that both Mark Neuman, the co-chair of the U.S. Census Monitoring Board, and Deputy Attorney General John Gore testified falsely “in ways that obscured the pretextual character of the request.”

“The new evidence demonstrates a direct through-line from Dr. Hofeller’s conclusion that adding a citizenship question would advantage Republican and non-Hispanic whites to DOJ’s ultimate letter,” the group told Furman. The evidence “thus not only contradicts testimony in this case, but it shows that that those who constructed the VRA rationale knew that adding a citizenship question would not benefit Latino voters, but rather would facilitate significantly reducing their political power.”

The fresh evidence, reported earlier by the New York Times, was discovered by Hofeller’s estranged daughter in files on hard drives she found in his home after his death that she later turned over to the advocacy group Common Cause, the newspaper said. Those drives were subpoenaed by a law firm representing the group, which was also representing plaintiffs in the suit over the census question in New York, the paper said.

Alternatively, the revelations could make the court’s conservatives even likelier to back the administration, said Rick Hasen, a voting rights expert who teaches at the University of California at Irvine.

The evidence indicates that Ross’s true goal was to help states start drawing voting districts with equal numbers of eligible voters, rather than equal populations, Hasen said. In a 2016 Supreme Court ruling, two conservative justices suggested they would let states take that step, which would tend to help Republicans.

“If his real motive is to allow the drawing of districts containing only eligible voters rather than all persons, the conservative justices may view this as a permissible motive given what they have said in earlier cases,” Hasen said.

Attack on Democracy

Reactions from Democrats to the twist in the highly political case were swift.

“It’s always been clear why the Trump Administration put a citizenship question on the 2020 Census,” Representative Adam Schiff of California, chairman of the House Intelligence Committee, said in a tweet. “To decrease political representation for immigrant communities for their own partisan advantage.”

“The census is not a sexy topic, but this is serious,” tweeted Mayor Pete Buttigieg of South Bend, Indiana, a rising star in the race for the Democratic presidential nomination. “There’s further evidence of partisan and racial motivations behind this tampering. It’s another attack on fair democracy, and it matters.”

In a book-length opinion in January, Furman found that Ross’s rationale for the change was “pretextual” and violated the Administrative Procedure Act, a federal law that sets requirements for making changes to agency regulations. Federal district judges in California and Maryland also ruled against the addition of the question.

To contact the reporters on this story: Greg Stohr in Washington at gstohr@bloomberg.net;Chris Dolmetsch in Federal Court in Manhattan at cdolmetsch@bloomberg.net

To contact the editors responsible for this story: David Glovin at dglovin@bloomberg.net, Peter Jeffrey, Steve Stroth

©2019 Bloomberg L.P.