Court Battles

ACLU notifies Supreme Court of recent findings on census citizenship question

The American Civil Liberties Union (ACLU) on Monday notified the Supreme Court of a recent court ruling and a new study on the impact of adding a citizenship question to the 2020 census as the justices prepare to hand down their ruling on the question.

In a filing to the justices, the group included a ruling last week from Judge George Hazel, who found that new evidence of a potential discriminatory intent behind the question "raises a substantial issue."

Advocacy groups had filed new documents in Maryland federal court alleging that current Census Bureau staffer Christa Jones was in contact with GOP strategist Thomas Hofeller in 2015 about a potential citizenship question on the census.

Hofeller, who died last year, had also conducted an unpublished 2015 study finding that asking about citizenship could help Republicans and non-Hispanic whites in redistricting while hurting Hispanic communities and Democrats, according to the documents.

Other evidence suggests that Hofeller may have helped draft a memo circulated within the Trump administration arguing in favor of the citizenship question.

In an opinion issued last week, Hazel wrote, "It is becoming difficult to avoid seeing that which is increasingly clear. As more puzzle pieces are placed on the mat, a disturbing picture of the decisionmakers' motives takes shape."

"The evidence suggests that Dr. Hofeller was motivated to recommend the addition of a citizenship question to the 2020 Census to advantage Republicans by diminishing Hispanics' political power," the opinion reads. "Taken together with existing evidence, it appears that Dr. Hofeller was involved in the creation of the pretextual [Voting Rights Act] rationale and worked with [Mark] Neuman, Secretary Ross's 'trusted advisor,' to drive the addition of a citizenship question."

And Hazel, an Obama appointee, said the new evidence "potentially connects the dots between a discriminatory purpose - diluting Hispanics' political power - and [Commerce] Secretary [Wilbur] Ross's decision."

"If the case is remanded, the court will reopen discovery for no more than 45 days, order an expedited evidentiary hearing, and provide a speedy ruling," he wrote.

The ACLU also notified the Supreme Court of a paper released by the Census Bureau on Friday, which found that "the addition of a citizenship question will have an 8.0 percentage point larger effect on self-response rates in households that may have noncitizens relative to those with only U.S. citizens."

That would lead to "an overall 2.2 percentage point drop in self-response in the 2020 census, increasing costs and reducing the quality of the population count," according to the Census Bureau.

"This new evidence indicates that the addition of a citizenship question will have a substantially greater impact on noncitizen self-response rates than was evident in the record available to the district court at trial," Dale Ho, the head of the ACLU's Voting Rights Project, wrote in the letter to the court.

The notice was submitted as the ACLU urges the justices to put off ruling on the citizenship question until the fall and allow lower courts to examine the new evidence at hand.

The group has already notified the court of similar evidence filed in federal court in New York relating to Hofeller's role in the addition of the question. That evidence was not uncovered when the justices heard oral arguments about the citizenship question in April.

The evidence also undercuts the Trump administration's argument that the citizenship question is needed to enforce the Voting Rights Act and suggests there may have been a political motivation behind the question's addition.

Opponents of the question cite studies that indicate asking about citizenship will cause some immigrants to skip the question or the survey altogether, leading to an inaccurate count of the population.

The Supreme Court is expected to issue a decision this week on whether the citizenship question should be allowed on the 2020 census.

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