New evidence about a Republican strategist's role in adding a citizenship question to the 2020 census is putting increased pressure on the Supreme Court.
The justices are weighing whether the controversial question should be allowed on the census after opponents filed lawsuits arguing it would lead to an inaccurate population count. The Trump administration has countered that it’s needed to enforce the 1965 Voting Rights Act.
But documents first made public on Thursday appear to undermine the administration’s position. The court filings claim that late GOP redistricting strategist Thomas Hofeller played a substantial role in adding the citizenship question. The court documents also allege that Trump administration officials lied during testimony by not disclosing the strategist's efforts.
In a rare move, the evidence was officially brought to the Supreme Court's attention on Thursday by way of a court filing from the American Civil Liberties Union (ACLU). That presents the justices with a decision on whether they should consider the documents indicating the administration was helped by a strategist who knew that asking about citizenship would give Republicans a boost in redistricting while hurting Democrats and Latino communities.
A delayed ruling could prevent the question from making it onto the 2020 census, as the Commerce Department has said it needs to start printing materials for the survey in June.
However, legal experts are dubious that the court will take the new evidence into consideration.
The documents are not — at this time — included in the formal record for the case that the justices are considering. But that doesn’t mean the justices won’t face more outside pressure to weigh the evidence.
Jennifer Nou, a law professor at the University of Chicago, said that given the looming deadline to start printing census documents and the court’s conservative majority signaling they’re ready to sign off on the question, it’s unlikely the justices will weigh the evidence or let it impact their ruling if they do.
Nou said the justices typically send a case back down to a lower court to add this kind of last-minute evidence to the record, but that process would take too long and force the Supreme Court to miss the Commerce Department’s deadline for printing census materials.
She also pointed to the Supreme Court agreeing earlier this year to take up the case before it went through the appeals process as a sign that the justices are eager to resolve the matter.
“I think they're going to decide the issue, and I don't think that the latest evidence is going to change that,” Nou said.
If the justices end up considering the evidence, they will review documents alleging that Mark Neuman, an adviser to Commerce Secretary Wilbur RossWilbur Louis RossHolding defiant Trump witnesses to account, Jan. 6 committee carries out Congress's constitutional role Bannon's subpoena snub sets up big decision for Biden DOJ House panel, Commerce Department reach agreement on census documents MORE, provided a draft letter to Justice Department official John Gore arguing for the citizenship question that included language authored by Hofeller.
The documents claim that Hofeller first raised the possibility of asking about citizenship on the census to Trump campaign officials. They also state that Hofeller conducted a 2015 study that found adding a citizenship question to the census would boost Republicans and non-Hispanic whites in redrawing congressional districts while harming Democrats and Hispanic communities.
Hofeller was a top redistricting strategist before his death last year, helping Republican legislatures draw district maps in several key states.
The Supreme Court is separately considering a pair of partisan gerrymandering cases this term and is expected to issue rulings on maps in Maryland and North Carolina in the coming weeks.
The Department of Justice (DOJ) has directly responded to the new evidence, labeling it “an unfortunate last-ditch effort to derail the Supreme Court’s consideration of this case.”
A DOJ spokesperson disputed the allegation that Gore, a top official in the department’s civil rights division, had lied during sworn testimony about Hofeller’s role in adding the question.
“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,” the spokesperson said.
The DOJ is expected to fully respond to the allegations in a court filing Monday.
Others who support adding the citizenship question also raised flags about the timing of the new evidence.
“I think that that was the intention of this evidence: to call into question anything that the Supreme Court does. Unfairly, in my opinion,” Kaylan Phillips, litigation counsel for the anti-voter fraud group Public Interest Legal Foundation, told The Hill.
Dale Ho, director of the ACLU’s Voting Rights Project who argued against the citizenship question before the Supreme Court this year, pushed back on accusations that the filings were a last-minute attempt to disrupt the case.
He said he first learned of the evidence on May 24 and that the ACLU took a couple of days to comb through the documents and figure out next steps before making the filing.
Ho added that he was unsure if the evidence could even be included in the record under consideration by the justices, as the record is currently closed, but suggested that a district judge could order that it be added.
But a ruling on the census citizenship question case could come as soon as Monday. The court will be issuing some of its most high-profile rulings in the coming weeks, as its term is expected to close at the end of June.
“It's the Supreme Court's prerogative to rule when it when it deems fit,” Ho said. “I think this is an unusual case, and this is an unusual development. So I think it would be unfortunate if we had a ruling before all of the facts were known and specifically facts that might bear on the merits and may have been concealed by the government.”
A federal judge in New York — Judge Jesse Furman, an Obama appointee — has already summoned the parties for a hearing on Wednesday to determine if any sanctions should be issued in light of the new evidence.
Furman, along with two other federal judges, had ruled against the question, blocking it from being added to the census for the time being.
Ho said the ACLU will determine its next steps after that hearing, including any potential moves to require the Supreme Court to consider the new evidence.