A federal appeals court on Tuesday said it would send a lawsuit over the Trump administration's addition of a question about citizenship to the 2020 census to a lower court to determine whether there was discriminatory intent behind the question's inclusion.
The 4th Circuit Court of Appeals made its ruling shortly after U.S. District Judge George Hazel in Maryland said that he would consider the claims of discrimination behind the question's addition to the census if the case was sent back to his court.
Advocacy groups had filed new evidence in the case, alleging that a Census Bureau staffer was in contact with a Republican redistricting strategist in 2015 about a potential citizenship question.
Documents filed in both cases noted that Hofeller had conducted an unpublished study in 2015 that found that asking about citizenship on the census could help Republicans and white communities in redistricting, at the same time hurting Democrats and Hispanics.
Hazel, an Obama appointee, had found that in the context of other documents suggesting a discriminatory intent behind the question, the new evidence "raises a substantial issue" and that it “potentially connects the dots between a discriminatory purpose — diluting Hispanics’ political power — and [Commerce] Secretary [Wilbur] Ross’s decision.”
In a concurring opinion filed alongside the 4th Circuit's order, Judge James A. Wynn Jr. wrote that "the district court should keep in mind that 'discriminatory intent need not be proved by direct evidence.'"
"To that end, even in the absence of direct evidence of invidious discriminatory intent, this Court and other courts have found such intent when, for example, a governmental decisionmaker was aware that an action was likely to disproportionately impact a minority group, the decisionmaker declined to impose ameliorative measures to minimize the likely disproportionate impact, the decisionmaker’s process for deciding to take the action deviated from standard practice, and the decisionmaker provided pretextual reasons for taking the action," Wynn wrote.
Wynn, an Obama appointee, also noted that any decision issued by Hazel, like a preliminary injunction, could impact the printing of the census. Trump administration officials have said they need materials to be finalized by July 1 in order to get the census out on time.
If Hazel rules that there was a discriminatory intent behind the question, he could potentially issue a preliminary injunction to block it from appearing on the census.
If that happens, Wynn write, it could mean that the appellate court will no longer need to address the lawsuit, as the question effectively will be permanently stopped from appearing on the census.
Hazel said in an opinion released Monday that, if the case was sent back to his court for reconsideration, he would reopen the case for discovery for 45 days, "order an expedited evidentiary hearing, and provide a speedy ruling."
Whether there was a discriminatory intent behind adding the citizenship query or if it violates equal rights protections shielded under the 14th Amendment is a different legal question than the one currently before the Supreme Court, as they weigh whether to allow the citizenship question to appear on the 2020 census.
The Supreme Court is expected to issue that decision this week, in a case brought forward by a group of states and being led by New York. The court's conservative majority indicated during oral arguments earlier this year that they would rule in favor of allowing the question on the census.
Critics of the citizenship question have said it will discourage immigrants and noncitizens from filling out the census, leading to an inaccurate count of the population. That data is used for items like drawing congressional districts and allocating federal funds to states.
The American Civil Liberties Union has also asked the justices to push off their ruling on the census until the fall to allow a federal judge in New York to formally add the evidence regarding Hofeller's involvement in the question to the formal record for the case, which the justices consider as they make their ruling.
The group reiterated that request in a notice on Monday night, pointing to Hazel's opinion raising concerns about the new evidence and a new paper released by the Census Bureau that showed asking about citizenship on the census 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."
Updated at 2:46 p.m.