U.S. Supreme Court

SCOTUS told of new evidence in challenge to census citizenship question

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2020 census

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The American Civil Liberties Union informed the U.S. Supreme Court in a letter Thursday that new evidence suggests that the Trump administration is adding a citizenship question to the census to create an election advantage for Republicans.

The letter, signed by ACLU lawyer Dale Ho, says the new evidence contradicts sworn testimony by an adviser to Commerce Secretary Wilbur Ross and by a top Justice Department lawyer, John Gore. The National Law Journal, the Washington Post and the New York Times have coverage.

The U.S. Supreme Court put the case on a fast track amid a June deadline for printing the census forms for 2020. A federal judge in Manhattan had ruled in January that Ross had acted arbitrarily in violation of the Administrative Procedure Act when he added the question. But the judge found no violation of the due process clause because the plaintiffs did not prove that Ross was motivated by discrimination against noncitizens and minorities.

According to Ho, Republican redistricting specialist Dr. Thomas Hofeller played a significant role in orchestrating addition of the question to the census.

Hofeller had concluded in a 2015 study that a citizenship question would clearly disadvantage Democrats when census data is used in redistricting, and he helped ghostwrite a DOJ letter asking the Commerce Department to add the question, according to the ACLU.

The DOJ letter had cited the need for better citizenship data to assist in enforcement of the Voting Rights Act. Those challenging the citizenship question have argued that reason is pretextual.

Hofeller’s estranged daughter found evidence of Hofeller’s involvement on hard drives that she found after his death last summer, according to the New York Times. The daughter, Stephanie Hofeller, mentioned the redistricting documents in a conversation with a staff member at Common Cause, an advocacy group. The group had filed a gerrymandering suit challenging North Carolina maps, and its law firm also represented plaintiffs in the Manhattan case.

The DOJ said in a statement that the new claims are false, according to the National Law Journal. The statement reads: “Before today, Mr. Gore had never heard of the unpublished study apparently obtained from the personal effects of a deceased political consultant. That study played no role in the department’s December 2017 request to reinstate a citizenship question to the 2020 decennial census. These unfounded allegations are an unfortunate last-ditch effort to derail the Supreme Court’s consideration of this case.”

The case before the Supreme court is U.S. Department of Commerce v. New York. According to the National Law Journal, the new evidence presents the court with a dilemma: whether to delay a decision for supplemental briefing, remand the case to the district court, or proceed with its decision.

The ACLU, meanwhile, has asked the trial judge in the case to issue sanctions or other appropriate relief because of the alleged untruthful testimony.

See also:

ABA Journal: “Court considers whether inquiry about citizenship belongs on the U.S. census”

ABAJournal.com: “Supreme Court agrees to hear challenge to citizenship question on census”

ABAJournal.com: “Second federal judge blocks census citizenship question in a broader ruling than the first”

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