Court Battles

ACLU asks Supreme Court to send census case back to lower court over new evidence

The American Civil Liberties Union is asking the Supreme Court to send the case over the Trump administration's efforts to add a citizenship question to the 2020 census down to a lower court over new evidence uncovered in the case.

In a filing made to the court on Wednesday, the ACLU points to documents uncovered in a separate lawsuit that undercut the Trump administration's argument that the question is needed to enforce the Voting Rights Act, and not for other political purposes.

But the evidence has not been formally added to the record for the case, meaning that the justices will not technically consider it in their ruling, which is expected to be made by the end of the month.

The ACLU, which has challenged the question in court, is now asking that if the Supreme Court doesn't rule to block the citizenship query from being added to the census, that the justices allow a district court to examine the new evidence before making a final ruling.

"These revelations cut to the heart of this case. They show that Commerce failed to discharge its 'responsibility [under the Administrative Procedure Act] to explain the rationale' -the real rationale-for its decision to add a citizenship question," the ACLU's filing reads.

"And the new evidence strongly suggests that Commerce's real rationale was the diametric opposite of its stated reason: not to protect minority voting rights through better enforcement of the [Voting Rights Act], but to facilitate a partisan advantage in redistricting and to dilute the electoral influence of voters of color."

"This new evidence thus underscores the pretextual basis for Commerce's decision and suggests an unconstitutional, racially discriminatory motive," the filing states.

If the justices don't block the citizenship question, the ACLU argues, "it should withhold judgment until the serious issues raised by the newly discovered evidence are probed by the district court, after which the Court can issue a decision based on the complete record."

This request also raises questions about the timing of the question: The Commerce Department has said it needs to start printing census materials by the end of this month.

But the ACLU argued in its Wednesday filing that the final deadline for printing census materials is in October, and that the "court need not decide this case on a record that omits or conceals critical facts about the true process and reasons for adding a citizenship question."

The ACLU had filed the new evidence in a federal court in New York, where one of the lawsuits challenging the citizenship question originated. And it filed a notice with the Supreme Court about the new evidence. 

The group claims that the newly uncovered documents show that GOP redistricting strategist Thomas Hofeller, who died last year, played a significant role in orchestrating the citizenship question.

And the documents show that he conducted a study indicating that asking about citizenship on the census would help Republicans and non-Hispanic white communities in redistricting, while hurting Democrats and Hispanics.

The Justice Department has refuted the evidence, characterizing it as a last-minute attempt to derail the Supreme Court case on the citizenship question.

Judge Jesse Furman, who had initially ruled against the citizenship question, said at a court hearing last week that while he considers the new allegations to be "serious," he believes them to be secondary to the legal questions being presented to the Supreme Court.

Furman, an Obama appointee, set a series of deadlines stretching through August for both parties to submit filings about the evidence. He is then expected to rule on whether any Trump administration officials should face sanctions over the allegations.

New York Attorney General Letitia James, whose state is leading the lawsuit being considered by the Supreme Court, said in a statement Wednesday that her office remains "concerned about the harm that the addition of a citizenship question will cause to participation in the census."

"This would have far-reaching and long-lasting effects and is antithetical to the purpose of the census. This is a critically important issue that should not be driven by partisan politics," James said. "We will support efforts to bring transparency to this matter and continue fighting to ensure everyone is counted."   

The ACLU's filing was made just hours after the House Oversight and Reform Committee voted to hold Attorney General William Barr and Commerce Secretary Wilbur Ross in contempt for failing to comply with congressional subpoenas for documents on the census citizenship question.

Democratic lawmakers, including House Oversight and Reform Committee Chairman Elijah Cummings (D-Md.), have pointed to the ACLU's evidence as proof they need the department's documents to further their probe on administration officials' motivations behind reinstating the citizenship question.

They have also noted that their congressional oversight efforts differ from the legal cases surrounding the question.

But Republicans and the Commerce and Justice Departments have also labeled the contempt vote as an attempt to interfere with the Supreme Court case.