Bench Memos

Law & the Courts

Machinations and Manipulations in the Census Case

Naturalization ceremony in Los Angeles, Calif., in 2013. (Mario Anzuoni/Reuters)

Before the Supreme Court wraps up its term this month, it is expected to issue a ruling in Department of Commerce v. New York (otherwise known as the Census case).  The case concerns Commerce Department Secretary Wilbur Ross’s decision to reinstitute a question about citizenship in the 2020 census.  Census authorities have been inquiring about citizenship status in one form or another for nearly all of the last 200 years, whether as a component of the decennial census or since 2005 as part of an annual survey that reaches a fraction of households.  Nonetheless, this latest decision was met by a court challenge.  The plaintiffs in the case (a collection of states, cities, counties, and civil rights groups) sued the Trump administration in federal district court, and Judge Jesse Furman, an Obama appointee, ruled in January that the citizenship question could not be used in the 2020 decennial census.  The Supreme Court took the unusual step of agreeing to hear the case on direct appeal from the district court.

Late last month (after the Supreme Court heard oral arguments), the plaintiffs wrote both the Supreme Court and the district court to claim they have new evidence—specifically, a file from the hard drive of a deceased Republican strategist named Thomas Hofeller that was turned over to the plaintiffs by Hofeller’s estranged daughter.

The plaintiffs claim that, contrary to the sworn testimony of government officials, Acting Assistant Attorney General John Gore relied on an unpublished 2015 study conducted by Hofeller in drafting the Department of Justice’s formal request to the Department of Commerce to reinstitute the citizenship question.  The plaintiffs allege that Hofeller “concluded in a 2015 study that adding a citizenship question to the 2020 census ‘would clearly be a disadvantage to the Democrats’ and ‘advantageous to Republicans and non-Hispanic Whites’ in redistricting,” and that Hofeller “helped ghostwrite a draft DOJ letter to Commerce requesting a citizenship question and providing the Voting Rights Act enforcement rationale for doing so.”

The “Voting Rights Act enforcement rationale” refers to the Commerce Department’s stated justification for adding the citizenship question to the census, which is that the Department of Justice requested citizenship data from the Commerce Department to support the DOJ’s enforcement of the Voting Rights Act—not because of any impermissible racial animus.  Secretary Ross issued a policy letter explaining his rationale and also testified before Congress about it.

Now plaintiffs say they have the equivalent of a smoking gun.  Even though the case is currently pending before the Supreme Court, the plaintiffs have sought sanctions against the DOJ in the district court, arguing that the government “concealed” the study, which the plaintiffs claim “strongly underscores the pretextual basis for the [government’s] decision to add a citizenship question to the 2020 Decennial Census.” Last week Judge Furman postponed ruling on the plaintiffs’ request for sanctions until the Supreme Court issues its decision and set an August deadline for briefs on the sanctions question.

And then on Thursday, the plaintiffs filed a motion with the Supreme Court requesting that the case be remanded to the district court for “inquiry and fact-finding into whether Dr. Hofeller’s partisan and racially discriminatory motives for adding a citizenship question were shared by, or should otherwise be imputed to, relevant Commerce officials, including the Secretary.”

The government has vigorously refuted the plaintiffs’ claim that Acting Assistant Attorney General Gore relied on the Hofeller study.  In its response to the plaintiffs’ motion to the district court, the government argued that the plaintiffs “provide[d] no evidence that Gore ever read, received, or was even aware of the existence of that unpublished study” and that “neither Hofeller nor his unpublished study played any role whatsoever in the drafting of the [] letter” that was the DOJ’s formal request to reinstate the citizenship question on the census.  Rather, the government asserts that the plaintiffs’ effort to reopen the case is nothing more than an “eleventh-hour campaign to improperly derail the Supreme Court’s resolution of the government’s appeal.”  The government also correctly notes that the Hofeller study is irrelevant to the Supreme Court’s decision in this case, “because the critical issue in this APA case is whether the Secretary provided an objectively rational basis for his decision to reinstate the citizenship question,” and nothing in Hofeller’s personal files can resolve that legal issue (emphasis added). The Secretary provided a rational explanation for the reinstitution of the citizenship question, and the APA provides no justification for looking outside the closed record.

More fundamentally, the plaintiffs’ sideshow is irrelevant to the key question in the case, which is whether the plaintiffs have standing to sue in the first place.  The district court found that the plaintiffs had “associational standing” because some of their members receive funds from federal programs that are distributed based on census data.  But the government argues that the plaintiffs’ “alleged injuries will materialize only if unidentified third parties react to the citizenship question by illegally refusing to fully answer and return the census questionnaire in violation of federal law,” so they wouldn’t have standing.  At oral argument, the justices seemed to agree.  This is the nub: if the plaintiffs do not have standing, the case must be dismissed, making who devised the citizenship question irrelevant.

The plaintiffs’ request for a remand for fact-finding about supposed new evidence is nothing more than a desperate Hail Mary effort to prevent the Court from ruling on the case before the end of the term. With the deadline for printing the Census form fast approaching at the end of the month, this is an apt example of the old phrase, “Justice delayed is justice denied.”  The longer that the plaintiffs can keep litigating, the better, from their perspective.  And the plaintiffs’ specious allegations of misconduct by government officials is just window dressing for their bald-faced delay tactics.

Not surprisingly, the editorial board of the New York Times has joined the plaintiffs in their campaign for a delayed decision with a headline blasting, “Looks Like the Trump Administration Lied About the Census.”  As have myriad other left-wing columnists who are wringing their hands over the Supreme Court’s “legitimacy” were it to go ahead and rule in in the case.

There is no reason for the Supreme Court to remand this case. The facts and arguments that the Court needs to rule are squarely before it now, and it should do so this month.

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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