U.S. Urges Court to Deny ‘Frivolous’ Bid for Sanction on Census

(Bloomberg) -- The Trump administration slammed a claim that a Republican redistricting consultant influenced the decision to add a citizenship question to the 2020 census, accusing opponents of “an eleventh-hour campaign to improperly derail" an impending Supreme Court decision.

In a letter to U.S. District Judge Jesse Furman in Manhattan, the government said the claim relies on "pure speculation" and information the challengers to the citizenship question have had in their possession since October. The letter said the challengers are trying to add new evidence to a case no longer within Furman’s jurisdiction, an effort the government said "borders on frivolous."

The New York Immigrant Coalition told Furman Thursday that consultant Thomas Hofeller, who died in August, concluded in a 2015 study that the citizenship question would ultimately give Republicans and white voters more clout.

It isn’t clear how, if at all, the skirmish might affect the Supreme Court ruling, which is due by the end of the month. Under normal circumstances, the justices wouldn’t consider evidence unless it was before the trial judge -- and the trial judge wouldn’t have power to reopen the case.

Lawyers challenging the census question say courts should consider the new evidence because it shows Commerce Secretary Wilbur Ross’s true motive for adding the question. In his ruling, Furman said the government’s stated rationale -- that citizenship information would help with enforcement of the Voting Rights Act -- was a "pretext," but the judge didn’t say what Ross’s real goal was.

“At this point, does anyone seriously believe that the Trump administration, which hasn’t filed a single case under the Voting Rights Act, has gone through all of this trouble so that it can protect voters of color?" Dale Ho, an American Civil Liberties Union lawyer who represents the challengers, said in a statement Monday.

The coalition’s letter asked Furman to sanction the government, a move that in theory could mean ordering new depositions if the judge believes he has that authority. Furman will hold a hearing on the new request on Wednesday.

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

Furman blocked the citizenship question in January after a two-week trial that the U.S. tried more than a dozen times to derail. The Supreme Court sped up consideration of the case, skipping the appeals court level, in order to produce a ruling in time to finalize the census.

Justice Department lawyers said in their letter that the plaintiffs have known about the evidence for months and that it couldn’t have been admitted at trial. And now that the case is in front of the Supreme Court, it’s too late to raise the issue, they said.

The government also said the immigration group mischaracterized the study, which they said has no connection to Ross’s decision to go forward with the change to the census.

New York and a group of states, cities and public-interest groups sued in April, claiming that some people might avoid answering the survey because of worries that data could be used by federal immigration agents to target them or someone in their household -- even if they are in the U.S. legally.

The case is State of New York v. U.S. Department of Commerce, 18-cv-02921, U.S. District Court, Southern District of New York (Manhattan). The Supreme Court case is Department of Commerce v. New York, 18-966.

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