Supreme Court set to deliver ruling on census citizenship question

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 RossOVERNIGHT ENERGY: Watchdog accuses Commerce of holding up 'Sharpiegate' report | Climate change erases millennia of cooling: study | Senate nixes proposal limiting Energy Department's control on nuclear agency budget Watchdog accuses Commerce of holding up 'Sharpiegate' probe report Research finds Uighurs targeted by Chinese spyware as part of surveillance campaign 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 CummingsFacial recognition tools under fresh scrutiny amid police protests The sad spectacle of Trump's enablers Democrat Kweisi Mfume wins House primary in Maryland MORE (D-Md.), voted largely along party lines earlier this month to hold Ross and Attorney General William BarrBill BarrDemocrat asks Barr to preserve any records tied to environmental hacking probe Justice Dept. considering replacing outgoing US attorney in Brooklyn with Barr deputy: report Ousted Manhattan US Attorney Berman to testify before House next week 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 fear US already lost COVID-19 battle Michigan candidate's daughter urges people not to vote for him in viral tweet Can Trump break his 46 percent ceiling? 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 KlobucharDemocrats: A moment in history, use it wisely The Hill's Coronavirus Report: Rep. Rodney Davis says most important thing White House can do on COVID-19 is give consistent messaging; US new cases surpass 50k for first time The Hill's Coronavirus Report: Stagwell President Mark Penn says Trump is losing on fighting the virus; Fauci says U.S. 'going in the wrong direction' in fight against virus 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 SandersThe Memo: Unhappy voters could deliver political shocks beyond Trump Democratic senator will introduce bill mandating social distancing on flights after flying on packed plane Neil Young opposes use of his music at Trump Mount Rushmore event: 'I stand in solidarity with the Lakota Sioux' 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 John TrumpTrump second-term plans remain a mystery to GOP Trump to hold outdoor rally in New Hampshire on Saturday Eighty-eight years of debt pieties 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.