U.S. Still Puzzled Over How to Add Census Citizenship Query
A demonstrator holds a sign that reads “Everyone Counts” outside the U.S. Supreme Court in Washington, D.C., U.S. (Photographer: Andrew Harrer/Bloomberg)

U.S. Still Puzzled Over How to Add Census Citizenship Query

(Bloomberg) -- The Justice Department is still searching for a way to add a citizenship question to the 2020 census, with President Donald Trump saying he might issue an executive order after the Supreme Court put his effort on hold.

The administration’s uncertainty played out in tweets and court filings on Friday as government lawyers scrambled to meet a federal judge’s afternoon deadline to explain what it was planning to do.

“In the event the Commerce Department adopts a new rationale for including the citizenship question on the 2020 Decennial Census consistent with the decisions of the Supreme Court, the government will immediately notify this court so that it can determine whether there is any need for further proceedings,” the U.S. told a federal judge in Maryland, noting both departments have been asked “to reevaluate all available options.

Government officials worked through the July 4 holiday in search of a way to insert the citizenship question on the census following a Supreme Court ruling that put the administration’s plan on hold because its rationale for the query was “contrived.” The forms for the once-a-decade headcount must be prepared soon to meet the deadline for 2020.

On Tuesday, the administration accepted the Supreme Court’s ruling and said it had begun printing forms without the question. But in a tweet, Trump subsequently ordered the government to re-examine the issue, prompting the Justice Department to seek alternative ways to proceed.

The path forward is anything but clear.

On Friday, Trump told reporters he may issue an executive order to add the question to the census, saying that there are “a number of different avenues” for the administration to pursue. “We’re thinking about doing that,” Trump said of executive action. “We can start the printing now and maybe do an addendum after we get a positive decision.”

But in their court filing Friday, Justice Department lawyers recognized that new decrees would be challenged, and indicated there was still uncertainty over whether the administration would offer a new rationale for its citizenship question, issue some new order altogether, or take any action at all.

"This looks like the government’s trying to buy more time," said University of California at Irvine law professor Rick Hasen, an expert on election law who isn’t involved in the case. "They haven’t figured out a new reason yet."

‘Tea Leaves’

Thomas Saenz, president and general counsel of the Mexican-American Legal Defense and Education Fund, which is representing the plaintiffs in the Maryland case, said government lawyers appear flummoxed.

“It seems to me like they‘re trying to read the tea leaves from what Donald Trump is tweeting, just like the rest of us are,” he said.

The administration is also boxed in by various court orders. In New York, the federal judge overseeing the case that went to the Supreme Court told lawyers on Friday that he sees no need for a new hearing because rulings blocking the citizenship question remain in place.

And in Maryland, U.S. District Judge George Hazel followed up on the government’s filing with a schedule for evidence-gathering that may determine whether a Republican consultant devised the question to give Republicans and white voters more clout.

Critics have argued that the citizenship query is an attempt to reduce immigrants’ participation in the survey. They say the administration is seeking to dilute the voting power of states -- whose congressional representation and Electoral College votes are determined by the every-10-year constitutionally mandated census -- with more minority voters.

‘Contrived’ Reason

Commerce Secretary Wilbur Ross had said the goal of the question was to help the Justice Department enforce the Voting Rights Act, which protects minority voters. But in the final opinion of its term, a divided court said last week Ross’s stated rationale was “contrived” and couldn’t be squared with the evidence about his true motivations. Chief Justice John Roberts joined the court’s liberals in the majority.

In comments to reporters at the White House on Friday, Trump said he respects Roberts but the chief justice “didn’t like” the administration’s arguments and “essentially, he said, ‘Come back.”

In its filing in Maryland, the Justice Department said it will file a motion in the Supreme Court seeking instructions on how to proceed if the U.S. finds “a viable path forward."

©2019 Bloomberg L.P.

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