employment & immigration DOJ urges definitive ruling from SCOTUS on census citizenship question

The Trump administration made an unusual last-minute plea to the Supreme Court Tuesday, telling the justices that actions by lower courts make it urgent to act quickly to resolve the legality of adding a citizenship question to the 2020 census.

The Justice Department move followed an appeals court order earlier Tuesday, which returned one lawsuit over the census to a district court judge to address recently-discovered evidence that the addition of a citizenship question may have been intended to diminish the political impact of the Latino vote.


The latest tumult in the litigation was prompted by citizenship question opponents gaining access to evidence that the views of a deceased GOP redistricting expert, Thomas Hofeller, may have played a role in a Justice Department request that led to Commerce Secretary Wilbur Ross adding the citizenship query to the census questionnaire.

In a two-page letter to the high court, Solicitor General Noel Francisco essentially invited the justices to shut down the pending lawsuits by declaring that Ross’ decision was lawful and that further inquiry into the motives for the decision is unnecessary.

“The Fourth Circuit’s order underscores the need for this court to address the equal-protection claim and the immateriality of the Hofeller files in its disposition of the above-captioned case so that the lawfulness of the secretary’s decision can be fully and finally resolved,” Francisco wrote. He said the government needs a quick and clear decision by the end of this month in order to finalize the print version of the census forms for use next year.

However, late Tuesday night, civil rights groups fired back in a letter to the Supreme Court, arguing that the Trump administration is trying to short-circuit the normal judicial process by having the justices rule on something that hasn’t been formally presented to them.

“The Solicitor General’s request would require this Court to render an improper advisory opinion on issues that have not been briefed or argued before this Court, relating to cases that are not before this Court, based on a trial record that is not before this Court,” wrote Denise Hulett of the Mexican American Legal Defense and Education Fund, or MALDEF, and Niyati Shah of Asian Americans Advancing Justice.

They also disputed the government’s claims of urgency, noting that the Census Bureau’s chief scientist testified that with additional resources the questionnaire could be finalized as late as October.

Before the Justice Department’s Supreme Court latest salvo, civil rights advocates celebrated the order from the Richmond, Va.-based 4th Circuit as an indication that arguments against the citizenship question were gaining traction.

“The always-flimsy house of cards shielding the Trump administration’s biased and nefarious intent in adding a citizenship query to Census 2020 is rapidly collapsing,” said Thomas Saenz of MALDEF. “We look forward to presenting our enhanced case demonstrating the unlawful nature of the late addition of the citizenship question, and to vindicating one of our most enduring and important constitutional principles.”

The Trump administration has maintained that it added the question to enhance Voting Rights Act enforcement, but opponents say it was done for partisan reasons to discourage citizen and noncitizen immigrants from responding to the census.

Three federal judges have ruled that the addition of the question was illegal because it was justified inadequately by the officials involved.

The Supreme Court is expected to issue a ruling on the issue this week. Decisions in some cases are expected Wednesday and additional releases are possible later in the week before the justices depart for their summer break.

