Government responds in census citizenship case

Last week the challengers in the dispute over the decision to include a question about citizenship on the 2020 census notified the Supreme Court about new evidence. The new evidence, the challengers argued, indicated that a Republican redistricting strategist played a key role in the decision, which was intended to create an advantage for whites and Republicans in future elections. Yesterday the Trump administration pushed back, calling the challengers’ accusations “meritless” and an “eleventh-hour” effort to “derail the Supreme Court’s resolution of this case.”

The government’s contentions came in its response to the challengers’ motion, made in a federal district court in New York, suggesting that the government should be sanctioned because the new evidence contradicts testimony and representations by government officials in the case. The response was attached to a letter sent to the Supreme Court yesterday by Noel Francisco, the U.S. solicitor general.

In the five-page, single-spaced response, the government dismisses as “false” the challengers’ claim that a senior Department of Justice official, John Gore, relied on a 2015 study by the Republican strategist, Thomas Hofeller, when Gore drafted a 2017 letter asking the Department of Commerce to include the citizenship question. “There is no smoking gun here,” the government stresses; “only smoke and mirrors.”

If the 2017 letter resembles anything, the government suggests, it is “friend of the court” briefs filed in a 2016 case in which the Supreme Court had been asked to decide whether total population or the number of eligible voters should be used to determine whether state legislative districts have equal populations. (Nathaniel Persily, the Stanford law professor who was the author of one of the briefs cited by the government, described himself as “outraged” that his work was “being misrepresented” by the government.)

The challengers’ accusations, the government continues, “are not only false, but legally irrelevant.” Among other things, the government argues, the evidence from Hofeller’s files likely could not be admitted in court. Moreover, the government adds, the key issue in the case is whether Ross had a rational basis for his decision to reinstate the citizenship question: “Nothing in the private files of a deceased political operative can affect that issue.”

The district court is scheduled to hold a hearing on the challengers’ motion for sanctions tomorrow. The Supreme Court is expected to issue its decision before the end of June, so that the government can finalize the census questionnaire and begin printing it.

This post was originally published at Howe on the Court.