Supreme Court Asked to Delay Decision on Citizenship Question in Census

June 13, 2019 Updated: June 13, 2019

WASHINGTON—Claiming new evidence contradicts the Trump administration’s rationale for wanting to ask 2020 Census respondents whether they are U.S. citizens, a left-wing open-borders group is asking the Supreme Court to delay its upcoming decision in the case.

The results from the once-a-decade census, which counts both legal and illegally present persons in the United States, are important because they are used to allocate federal dollars and determine representation in Congress.

U.S. Solicitor General Noel Francisco flatly rejected the dilatory demand in a June 3 letter filed with the high court, saying the request “borders on frivolous.”

This is an attempt “to drag this Court into Plaintiffs’ eleventh-hour campaign to improperly derail the Supreme Court’s resolution of the government’s appeal,” he wrote.

The Supreme Court had already heard oral arguments on the merits of the extensively litigated case, known as Department of Commerce v. New York, on April 23.

The high court agreed on Feb. 15 to accept the case, an appeal of a ruling by Manhattan-based U.S. District Judge Jesse Furman, on an expedited basis because the U.S. Census Bureau needs to print its official questionnaires in the coming months.

Furman held that Commerce Secretary Wilbur Ross acted in bad faith and falsely claimed the citizenship question was needed to gather data to help enforce the Voting Rights Act (VRA) and that its addition was requested by the Justice Department.

Opponents of the census change claim the administration wants to include the question to discourage Latinos and illegal aliens from completing the form, and that this would unfairly influence congressional representation for Democratic-leaning states with large populations of illegal aliens. According to one estimate, noncitizens make up about 7 percent of the nation’s inhabitants.

Republicans and Democrats have battled for decades over how the census is carried out. Democrats accuse Republicans of scheming to undercount minorities and illegal aliens out of racial animus. Republicans say Democrats try to game the system and use immigration policy to import illegal aliens and new voters to inflate the headcount, in order to strengthen their hold on so-called blue states and congressional districts.

On behalf of the New York Immigration Coalition, attorney Dale E. Ho filed a “conditional motion to issue a limited remand” with the Supreme Court on June 12. Ho is also the director of the ACLU’s Voting Rights Project.

Ho first advised the Supreme Court of the new evidence in a May 30 letter and filed supporting material on June 12.

Ho claims that new evidence, discovered after oral argument, demonstrates the Trump administration’s voting-rights-based “rationale for adding a citizenship question to the 2020 Decennial Census was concocted by a longtime partisan redistricting strategist, who had concluded that adding a citizenship question would facilitate redistricting methods ‘advantageous to Republicans and Non-Hispanic Whites.’”

Redistricting expert Thomas Hofeller, described by some as “the Michelangelo of the modern gerrymander,” and who died in August 2018, “wrote a portion of an early Justice Department draft letter articulating the VRA [Voting Rights Act] rationale for adding the question,” Ho wrote, and this letter was passed on to Justice Department official John Gore at a meeting arranged by the Commerce Department’s general counsel, the new brief states.

Somehow, this shows the Commerce Department “failed to discharge its ‘responsibility [under the Administrative Procedure Act] to explain the rationale’—the real rationale—for its decision to add a citizenship question,” the brief continues.

“And the new evidence strongly suggests that Commerce’s real rationale was the diametric opposite of its stated reason: not to protect minority voting rights through better enforcement of the VRA, but to facilitate a partisan advantage in redistricting and to dilute the electoral influence of voters of color,” the brief states.

In the case, if the Supreme Court decides to move forward with rendering its official opinion in coming weeks, it could decide the administration’s motives are irrelevant or that the new evidence comes too late.

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