Will the U.S. Supreme Court ignore damning new evidence in U.S. Census case?

0
264
FILE PHOTO: An informational pamphlet is displayed at an event for community activists and local government leaders to mark the one-year-out launch of the 2020 Census efforts in Boston, Massachusetts, U.S., April 1, 2019. TO MATCH INSIGHT USA-CENSUS/BUSINESS REUTERS/Brian Snyder/File Photo - RC1ACDFA95E0

Update to Newly discovered evidence that witnesses misled the court in U.S. Census case.

District Court Judge Jesse Furman held a hearing for sanctions on Wednesday, but decided not to take any action ahead of the pending Supreme Court decision in this case. Buzzfeed News reports, A Judge Is Alarmed By The “Serious” New Claims In The Census Citizenship Question Case:

Last week, newly released documents revealed that a Republican strategist known for redrawing electoral maps completed a study in 2015 that showed a census question “would be advantageous to Republicans and Non-Hispanic Whites.” Opponents of the citizenship question, who believe it will lead undocumented people to avoid answering the census and result in inaccurate data, contend this study formed the blueprint for the administration’s plan to add the question.

In court documents filed Monday, Department of Justice officials said the new allegations “border on frivolous,” and contended that the new evidence “reads more like the product of a conspiracy theorist than a careful legal analysis.”

But on Wednesday, in the Thurgood Marshall Courthouse in downtown Manhattan, District Court Judge Jesse Furman disagreed, instead speaking of the “seriousness of the allegations.”

“They are not, as the defendant says, ‘frivolous,’” said Furman.

* * *

Judge Furman had blocked the government from putting the citizenship question on the census in January. The government appealed his decision and it’s now before the Supreme Court, which is due to decide on the case by the end of the month.

Furman said Wednesday that he was “acutely mindful” that the decision of whether the government should be allowed to ask a citizenship question is currently before the Supreme Court and that he had no intention of interfering with that case.

“I don’t want to do anything that would cross the line or would be seen as to cross the line,” said Furman.

Instead, he said there was “no apparent urgency,” and instead said more evidence and information was required before he could make any kind of decision. He gave the plaintiffs until July 12 to file more evidence.

After the hearing, John Freedman from Arnold & Porter, the law firm representing the New York Immigration Coalition and other progressive groups in court, said he appreciated that the judge took the new allegations seriously.

“We have uncovered evidence, strong evidence, that what is underlying the request for the citizenship question is racially discriminatory animus to entrench Republicans at the expense of minorities,” said Freedman. “We want to get the truth out. We think the Supreme Court, no matter what it decides, is going to be interested in what the truth is.”

Dale Ho, director of the ACLU Voting Rights Project and one Freedman’s colleagues on the case, said that the Supreme Court should be interested in what happened in New York’s District Court on Wednesday.

“Does the Supreme Court want to issue a ruling in the shadow of those kinds of allegations?” asked Ho. “That’s a question not for us to answer, but for the court.”

Jay Michaelson at The Daily Beast answers the question in the affirmative. Supreme Court Could Ignore Shocking New Evidence Trump Officials Tried to Rig Elections for Whites:

Voting-rights activists fighting the government’s attempt to add a census question about citizenship faced a setback Wednesday when a federal district court postponed any inquiry into new evidence that the question originated with a partisan operative who hoped it would benefit “non-Hispanic whites.”

The case—and the question of what to do about the newly revealed evidence—is now back in the hands of the Supreme Court, which is expected to issue a decision in the next three weeks.

The ACLU, the New York Immigration Coalition, and others had hoped that Judge Jesse Furman would allow expedited discovery in the case. That would enable them to probe for more evidence and potentially question government officials about what they knew and when.

The evidence consists of a trove of documents discovered on the deceased operative’s hard drive and contradicts sworn testimony by government officials who said that they came up with the citizenship question themselves. Exploring that evidence further would likely turn up more damning information, and possibly cause the Supreme Court to pause its own deliberations.

Judge Furman, however, noted that “there’s no urgency on these questions.” That’s because, as a matter of law, they’re only about whether the officials lied or engaged in misconduct. And that has nothing to do with the case itself. Whichever way the Supreme Court rules, the inquiry into potential misconduct can continue regardless.

Judge Furman ordered the plaintiffs to file legal briefs in that inquiry by July 12.

In many ways, though, the cat is already out of the bag. The evidence has been entered into the record and released to the public. And it is truly shocking. It suggests that the purpose of the citizenship question is to redraw congressional districts based on their number of citizens, rather than their total population.

* * *

It’s impossible to un-see that.

Now the question is whether the Supreme Court will take it into account.

Legally speaking, the evidence is relevant because one of the activists’ claims is that the government violated the Administrative Procedure Act by conducting a sham public process when they had already made up their minds to add the citizenship question for political reasons. The new documents support that argument.

At the same time, the new documents actually contradict the activists’ claim that the question was being added to deter Hispanics from answering the census for fear out of triggering governmental action against them or their families, thus depressing results in communities of color.

It now seems that intimidating Hispanics was only the cherry on top of the Trump administration’s sundae. The ice cream was transforming democracy itself to benefit whites over people of color.

Whatever the relevance of this new evidence, however, the Supreme Court has wide discretion in deciding what to do about it.

Theoretically, the court could send the case back down to the district court to consider the new evidence. That would likely doom the citizenship question, because 2020 census forms have to be printed soon.

If you take a cynical view of the court, it’s pretty unlikely that the conservative majority—which seemed to accept the government’s positions at face value at the case’s oral arguments in April—will allow that to happen. It’s quite possible that a majority of the court will simply decide the case on the evidence in front of it, rendering all of the new discoveries legally irrelevant.

After all, if the court’s position is simply to evaluate the rationale the government puts in front of it, and not inquire into how it arrived at that position, then no matter what this new evidence reveals, it doesn’t really matter.

That has been the government’s position all along: that all that is required is “an objectively rational basis” for the rule. Pay no attention to all those men behind the curtain.

On the other hand, the court didn’t have this new evidence in April. It’s possible that Chief Justice John Roberts, who has ruled against Republican political interests many times (saving Obamacare most notoriously), may do so again here.

There are precedents on both sides of the question. Sometimes, the Supreme Court admits new evidence; other times, it doesn’t. Unlike lower courts, the Supreme Court can, more or less, do whatever it wants.

Soon, we’ll find out what that is.

The newly discovered evidence is also being used by the plaintiffs in the U.S. District Court in Maryland. The Washington Post reports, Civil rights groups ask federal judge to reconsider conspiracy ruling on census citizenship question:

Civil rights groups who had sued the government over its addition of a citizenship question to the 2020 Census have asked a federal judge in Maryland to reconsider his ruling on the matter after new evidence in the case emerged last week.

The request, filed Monday night by the Mexican American Legal Defense and Educational Fund (MALDEF) and Asian Americans Advancing Justice (AAJC), said the new findings show the Trump administration sought to intentionally discriminate against Latinos and immigrants of color when it added the question.

U.S. District Court Judge George J. Hazel ruled in April against the question, joining two other federal judges in finding that the government had violated administrative law when it added the question last year. But Hazel did not find enough evidence to support plaintiffs’ claims that the government intended to discriminate against immigrants, Latinos and Asian Americans by adding the question, or that adding the question was part of a conspiracy within the Trump administration to violate the constitutional rights of noncitizens and people of color.

However, files found in the personal effects of deceased Republican redistricting strategist Thomas Hofeller and made public last week suggest he had been working with the Trump administration to add the question to create an electoral advantage for Republicans and non-Hispanic whites, plaintiffs’ lawyers said.

Attorneys for the American Civil Liberties Union last week asked a New York federal judge to impose sanctions on the government, which could include reopening or amending the case there; a hearing before that judge [occurred on] Wednesday. The Justice Department has denied that Hofeller influenced the administration’s decision to add the question.

MALDEF and AAJC already had appealed Hazel’s ruling on intentional discrimination, and that appeal remains in place.

The three lower-court rulings against the question have been appealed to the Supreme Court, which heard the case in April and is expected to decide by the end of this month if the question can be added to the survey.

At oral arguments in April, the Supreme Court’s conservative justices seemed inclined to defer to Commerce Secretary Wilbur Ross’s authority in adding questions to the census form, including the one on citizenship.

If the court followed normal procedure, it voted that week on the outcome of the case, and the justices are now writing the opinion.

But if the Maryland judge overturns his earlier ruling on the conspiracy and intentional discrimination charges, it will take the question into areas the high court is not currently considering.

Experts said it would be rare but not unheard of for the court to reopen the record on a case in which it has completed arguments and presumably is writing an opinion. “I wouldn’t say it’s too late,” said Jeffrey L. Fisher, co-director of the Supreme Court Litigation Clinic at Stanford Law School. “No case is decided until the opinion comes out.”

The court previously has had to take note of changes that have occurred since argument, Fisher noted — when a litigant dies, for instance, or when the law or government regulation at issue has been modified. The options normally could include asking for supplemental briefings or returning the case to a lower court to consider the changed circumstances.

Fisher said the court would be unlikely to “make any conclusions on new evidence” that had not been subjected to the usual adversarial legal process. In this case, the Justice Department contends that “neither Hofeller nor his unpublished study played any role whatsoever in the drafting” the letter requesting the addition of the citizenship question.

Andrew Pincus, a Washington lawyer who regularly argues before the court, said another issue is “the pincer of deadlines” facing the justices. They are scheduled to complete their work at the end of the month, and the government says it needs an answer by then to complete the census form. That would argue against further development of the record.

It would be unlikely that the court would take any action regarding the new information unless the challengers are able to convince the district judges of its merit. If the Maryland litigants were successful in convincing the judge that the decision to add the question was based on discrimination, that could give challengers another way to approach the Supreme Court.

MALDEF and AAJC had claimed the administration intended to cause an undercount of minorities in violation of the equal-protection clause of the Fifth Amendment and that it conspired to deprive racial minorities of their constitutional rights.

In his ruling, Hazel said there was evidence that certain administration officials harbored racial animus and may have been motivated to add a citizenship question for discriminatory reasons, but what was missing was direct evidence that Ross acted on that discriminatory intent.

Plaintiffs’ lawyers say they now have that missing piece.

“The new evidence directly connects the administration’s racially discriminatory motives to Secretary Ross and the other Department of Commerce . . . and DOJ officials responsible for the citizenship question decision,” said Denise Hulett, lead attorney for MALDEF.

UPDATE: Rick Hasen reports Breaking: Plaintiffs in North Carolina Redistricting Case, Using Hofeller Files, Allege NC Republicans Lied To Federal Court in Covington Case About Timing of and Use of Race in Drawing District Maps. The Hofeller hard drives have opened a Pandora’s box.

We are about to find out whether our Supreme Court justices actually believe in what is inscribed in a frieze above the U.S. Supreme Court building: