Challengers of census citizenship question cite new evidence

Challengers to the Trump administration’s decision to add a citizenship question to the 2020 census informed the Supreme Court on Thursday that they believe they have “new evidence” that the move was politically motivated.

They point to a newly disclosed 2015 study written by Dr. Thomas Hofeller, a Republican redistricting expert, who wrote that using “citizen voting age” population as the redistricting population base would be “advantageous to Republicans and Non-Hispanic Whites.”

The challengers, including groups such as the American Civil Liberties Union and Common Cause, say the new information shows Hofeller played a more significant role in the decision to add the citizenship question than has been disclosed and that his study reveals the true motive behind the administration’s decision to add the question.

Separately in a letter to District Judge Jesse M. Furman on Thursday, the challengers say the evidence bolsters their argument that while the administration contends the question was added to better comply with federal voting laws, the real reason was to intimidate Hispanic households from being counted.

“The new evidence thus not only contradicts testimony in this case, but it shows that those who constructed the VRA (Voting Rights Act) rationale knew that adding a citizenship question would not benefit Latino voters, but rather would facilitate significantly reducing their political power,” the letter to the judge reads.

The Justice Department called the challengers’ allegations “baseless,” saying the consultant’s study “played no role” in the decision.

A department spokesperson said Thursday night: “That study played no role in the Department’s December 2017 request to reinstate a citizenship question to the 2020 decennial census. These unfounded allegations are an unfortunate last-ditch effort to derail the Supreme Court’s consideration of this case. The Department looks forward to responding in greater detail to these baseless accusations in its filing on Monday.”

Hofeller died last August.

Furman ruled against the administration in January, holding that Commerce Secretary William Ross’ decision to add the question was unlawful for a “multitude of independent reasons” and must be set aside. He said the decision to add the question violated the Administrative Procedure Act, a federal law that governs the way agencies can establish regulations.

Most critically, Furman who sits on the US District Court for the Southern District of New York, said Ross’ stated rationale for the question — to promote the enforcement of the Voting Rights Act — was “pretextual — in other words that he announced his decision in a manner that concealed its true basis.”

The Supreme Court agreed to take up the appeal in an expedited time frame and heard arguments in April. In court, the conservative justices appeared ready to side with the government and allow the question.

In the letter to Furman, the lawyers attached a copy of a deposition of A. Mark Neuman, who they say was Ross’ expert adviser on the matter.

He testified that Hofeller was the “first person” who suggested to him to add the citizenship question. Neuman said in the deposition that Hofeller had told him it would help maximize “Latino representation.”

“But new evidence obtained in discovery in state court… shows that Dr. Hofeller instead knew that adding a citizenship question would have exactly the opposite effect—it would disadvantage Latinos and benefit “Non-Hispanic Whites,” the lawyers told the judge.

They also say that Hofeller “ghostwrote” a “substantial part” of a draft letter that would ultimately become the Department of Justice’s official letter requesting that Commerce add the citizenship question.

“This is important because it shows that Hofeller’s work formed the basis for DOJ’s request to add the citizenship question,” said ACLU attorney Dale Ho.

The information came to light after Hofeller had passed away and his estranged daughter collected his belongings. They included a hard drive which turned out to hold some 75,000 files. The interest group Common Cause was involved in a case concerning gerrymandering in North Carolina and subpoenaed the documents hoping to get a better understanding of Hofeller’s work in that area. They then found the documents pertinent to their other case concerning the census case.

Richard Hasen, of the University of California Irvine, called the new information “blockbuster” but he said he doubted the conservative justices on the Supreme Court would agree. He noted that during oral arguments they accepted at “face value” the administration’s justification for the law, that the question was “necessary to protect Hispanic voters.”