The Supreme Court is set to hand down its much-anticipated decision on whether the Trump administration can include a citizenship question on the 2020 census.
The question has been the subject of multiple legal challenges since it was announced in early 2018. And a courtroom twist this past week added a new level of drama that could affect the Census Bureau’s timeline for finalizing and printing the decennial questionnaire.
Opponents of the citizenship question cite studies that indicate it might lead to an inaccurate population count, which would impact the data used to determine congressional representation and the allocation of federal funds to states.
The administration, however, has been steadfast in its insistence that including the question is necessary to enforce the 1965 Voting Rights Act.
But arguments put forth by Trump officials have faced further scrutiny in recent weeks after newly surfaced documents suggested a political motivation behind adding the citizenship question.
Critics say that records found on the hard drive of late GOP strategist Thomas Hofeller, who earned a reputation for helping Republicans in the redrawing of several key district maps in recent years, show he was involved in the creation of the citizenship question.
Emails between Hofeller, who died last year, and Mark Neuman, a top census adviser to Commerce Secretary Wilbur RossWilbur Louis RossHouse panel, Commerce Department reach agreement on census documents China sanctions Wilbur Ross, others after US warns of doing business in Hong Kong DOJ won't prosecute Wilbur Ross after watchdog found he gave false testimony MORE, have been filed in New York federal court as evidence that the question is designed to benefit Republicans.
The American Civil Liberties Union (ACLU), which has filed the court documents, has pointed to a 2015 study conducted by Hofeller that found a citizenship question would help Republicans in redistricting while harming Hispanic communities.
In a separate census lawsuit in Maryland, court documents show Hofeller and Census Bureau staffer Christa Jones corresponded in 2015 about the question.
Judge George Hazel, an Obama appointee who is overseeing the Maryland case, has indicated he will now reconsider if there was a discriminatory intent behind the question’s addition in light of the new evidence.
Hazel, alongside two other federal judges, previously struck down inclusion of the citizenship question. But because the Supreme Court is not considering the equal protection claim, the Maryland case is shaping up to be another potential roadblock to the administration’s efforts ahead of next year’s population count.
Jennifer Nou, a law professor at the University of Chicago, told The Hill that if Hazel rules that adding the question violates the Equal Protection Clause enshrined in the Constitution and then issues an injunction, the administration could be prevented from including that query.
“I don’t see a reason why not,” she said.
But the Trump administration isn’t going down without a fight.
Administration officials have urged the courts to not allow any further delays over the citizenship question, pointing to a July 1 deadline to finalize census materials.
The Justice Department also filed a notice with the Maryland court on Wednesday that pointed to other court documents in a North Carolina partisan gerrymandering lawsuit, where the Hofeller evidence first surfaced, suggesting the new evidence was improperly obtained.
“The filing raises serious questions about whether its disclosure was unlawful, whether any of it is privileged or proprietary, and whether the lawyers who solicited the disclosure violated their ethical obligations,” the Justice Department wrote.
At the same time, the Supreme Court is facing a request from the ACLU to postpone its ruling on the citizenship question until a federal judge in New York considers evidence also tied to Hofeller so that the ACLU can add it to the record before the justices announce their decision.
The administration responded on Thursday by calling the ACLU’s allegations a “conspiracy theory” and asking the Supreme Court to reject the motion.
Solicitor General Noel Francisco, who represents the administration before the Supreme Court, wrote that the request “is inappropriate for the further reason that none of the supposedly new ‘evidence’ is relevant to this case.”
The justices aren’t required to respond to the motion, but it’s possible that they will address it in their opinion issued on the citizenship question.
Legal experts say they are still expecting the court’s conservative majority to rule in favor of allowing the additional census question, based on the justices’ line of questioning during oral arguments earlier this year. But that was before the Hofeller documents surfaced.
The dispute over the citizenship question is also receiving increased attention on Capitol Hill.
The House Oversight and Reform Committee, chaired by Rep. Elijah CummingsElijah Eugene CummingsFormer GOP congressional candidate Kimberly Klacik suing Candace Owens for defamation Former Cummings staffer unveils congressional bid McCarthy, GOP face a delicate dance on Jan. 6 committee MORE (D-Md.), voted largely along party lines earlier this month to hold Ross and Attorney General William BarrBill BarrTrump pushes back on book claims, says he spent 'virtually no time' discussing election with Lee, Graham Woodward: Milley was 'setting in motion sensible precautions' with calls to China Barr-Durham investigation again fails to produce a main event MORE in contempt for not turning over documents on the question’s addition.
Republicans and administration officials have harshly criticized that move, calling it premature and an attempt to interfere with the Supreme Court ruling.
Cummings and other Democrats argue that the federal agencies involved have had sufficient time to provide the documents since the subpoenas were issued in April. Rep. Justin AmashJustin AmashDemocrats defend Afghan withdrawal amid Taliban advance Vietnam shadow hangs over Biden decision on Afghanistan Kamala Harris and our shameless politics MORE (Mich.) was the only GOP lawmaker on the committee to vote in favor of the subpoenas and contempt measures.
That fight could also spill into the courts, as the House recently passed a resolution giving committee chairs more legal authorities to enforce their subpoenas.
The citizenship question is even causing a stir among Democrats running for the party’s presidential nomination, with some on Friday calling for the 2020 census to be redone if the question is included.
“I would immediately, as president, in my first 100 days, get rid of that citizenship question if it is still on there. That's the number one,” Sen. Amy KlobucharAmy KlobucharHillicon Valley — Presented by Xerox — Officials want action on cyberattacks Senate panel advances antitrust bill that eyes Google, Facebook This week: Democrats face mounting headaches MORE (D-Minn.) said at a National Association of Latino Elected and Appointed Officials Presidential forum hosted by Telemundo on Friday.
“Number two, we will have to have a recount if the Supreme Court persists in including this question on there,” she added.
A redo of the census would be a massive undertaking, likely requiring millions of dollars on top of the federal resources that have already been dedicated to its preparation and implementation.
Other White House hopefuls, including Sen. Bernie SandersBernie SandersOvernight Energy & Environment — Presented by the League of Conservation Voters — EPA finalizing rule cutting HFCs Manchin fires warning shot on plan to expand Medicare Democrats steamroll toward showdown on House floor MORE (I-Vt.), suggested that Congress could strip funding for the census if the citizenship question is included.
A funding bill for the Commerce Department that’s making its way through Congress includes language that would block funds for a citizenship question on the 2020 census. The White House said this past week that if the bill were to land on President TrumpDonald TrumpTexas announces election audit in four counties after Trump demand Schumer sets Monday showdown on debt ceiling-government funding bill Pennsylvania AG sues to block GOP subpoenas in election probe MORE’s desk, he would likely veto it.
It’s against that backdrop the Supreme Court will have to issue its most closely watched ruling of the term. While the justices are expected to consider only what is presented to them in court, they are undoubtedly feeling the external pressure.