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.
In districts with many (legal) non-citizens living in them, that would mean less congressional representation. Departing from 200 years of American tradition, it would replace “one person, one vote” with “one citizen, one vote.” It would transform democracy in America to the detriment of immigrants, their families and communities, who are overwhelmingly people of color.
As the activists put it in a brief filed with the district court, “damning new evidence reveals hyper-partisan and racially discriminatory motives at the root of the citizenship question.”
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.