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Government says it is looking at “all available options” to include citizenship question on 2020 census (UPDATED)

[Note: This post has been updated to include the district judge’s order in the case.]

Eight days after the Supreme Court ruled that the Trump administration’s stated reason for including a question about citizenship on the 2020 census was a pretext, lawyers for the federal government told a federal district judge in Maryland that the government continues to look for a “path forward” that would allow it to use the citizenship question on the census with a “new rationale.” But they did not offer any insight into either the government’s timetable for making such a decision or what that “new rationale” might be.

The news came in a filing in the U.S. District Court for the District of Maryland, where Asian-American and Latino groups (among others) had challenged the decision to include the citizenship question on the upcoming census. On Tuesday, the government had announced that printers had started to produce the 2020 census questionnaire without the citizenship questionnaire – which was generally interpreted as a sign that the government had thrown in the towel and the legal battle was over. But in the wake of tweets from President Donald J. Trump suggesting otherwise, U.S. District Judge George Hazel on Wednesday ordered the parties in the Maryland case to submit, by 2 p.m. on Friday, either a stipulation that the government would not try to include the question on the census or a plan for fact-finding on the plaintiffs’ claim that the government’s decision to include the question was prompted by an intent to discriminate against minorities.

In its filing today, the government told the district court that the “Departments of Justice (DOJ) and Commerce have been asked to reevaluate all available options following the Supreme Court’s decision and whether the Supreme Court’s decision would allow for a new decision to include the citizenship question” on the 2020 census. If Commerce does rely on a new rationale for the decision, the government continued, it will let the district court know as soon as possible. And that decision, the government noted, would be a “new final agency action” that the plaintiffs could then challenge. But it would be “premature” to go ahead with fact-finding now “in connection with a new decision that has not yet been made.”

On Friday afternoon, Hazel nonetheless ordered the parties to proceed with fact-finding. He acknowledged that there is “some degree of logic” to the government’s argument that fact-finding should be put on hold until Secretary of Commerce Wilbur Ross reaches a “new” decision about the citizenship question, but he ultimately rejected the government’s plea based on what he described as the “unique circumstances of this case.” In particular, he noted, newly discovered evidence from the files of Thomas Hofeller, a Republican redistricting strategist who passed away last year, “goes directly” to the issue of whether Ross acted with discriminatory intent when he decided to add the citizenship question, and discovery relating to “the origins of the question will remain relevant” even if the government finds a new justification for it. “Given that time is of the essence, therefore,” Hazel concluded, “the prudent course is to proceed with discovery.”

Recommended Citation: Amy Howe, Government says it is looking at “all available options” to include citizenship question on 2020 census (UPDATED), SCOTUSblog (Jul. 5, 2019, 3:51 PM),