Resisting efforts by the Trump Administration to take full control of the continuing controversy over the 2020 census, a federal trial judge in Maryland on Friday moved forward on a faster-than-usual schedule to decide whether the plan to ask everyone in America about their citizenship was motivated by racial bias.
Wasting no time after Administration lawyers revealed that they had not yet come up with a new rationale to justify the citizenship question, U.S. District Judge George J. Hazel of Greenbelt, MD, adopted a schedule for a two-month review of the racial discrimination issue.
The judge acted less than two hours after lawyers for the Administration and for groups challenging the citizenship question had given him an update on where the controversy stands, in the wake of President Trump’s personal intervention seeking to salvage that inquiry on the forms for the census. The President overruled two of his Cabinet departments, which had decided not to go ahead with the citizenship inquiry on the census following a partial defeat in the Supreme Court last week..
On Friday, the President sought to offer his own new rationale for asking every household in the nation about the occupants’ citizenship. He told news reporters at the White House that the data gathered from the responses to the question would be needed when a new round of congressional redistricting would take place following the census. It was not clear what he had in mind, and government lawyers did not mention his remarks in their new filing with Judge Hazel Friday afternoon.
The Administration, saying officials were still exploring whether they would be putting forth a new reason for asking the disputed question, urged the judge not to move ahead on the case that is still before him, at least for the time being.
It suggested three things: that the judge abandon the plan to explore the racial bias claim, that he dismiss outright that claim, and that there be no period for gathering new evidence about why the citizenship question was planned in the first place. The Supreme Court last week rejected the only rationale that the Administration had previously offered for the plan – that the data would be helpful in enforcing voting rights laws. The Court said that rationale was “contrived,” and ordered the Administration to reconsider.
Judge Hazel refused all of the Administration requests, and concluded that, even if the Administration comes up with a new reason seeking to justify the citizenship question, the challengers’ racial bias claim would remain a live issue.
That claim, based on both the Constitution’s guarantee of legal equality for the races and on federal civil rights law, is that the citizenship question was adopted to intimidate Hispanic and non-citizens, so that they would refuse to fill out the census forms, resulting in an under-count that would deprive them of representation in government.
What is still before him, the judge’s order said, are claims “based on the premise that the genesis of the citizenship question was steeped in discriminatory motive.” Regardless of any new attempt at justification, he added, an exploration of “the origins of the question will remain relevant.”
He then laid down a 45-day period (starting immediately) for the two sides to ask each other questions to gather evidence on the racial discrimination issue, followed by a hearing – if necessary – on September 3 and 4. A decision presumably would come soon thereafter; the judge that “time is of the essence.”
Although he turned down, for now, the Administration plea to dismiss the racial bias claim, he said the Administration could renew that later, so long as doing so would not interfere with the schedule he had set up for the review. The Administration had suggested the claim was no longer a live controversy, because the situation had changed with the attempt to work out a new rationale.
Once a new rationale is found, if one is, the Administration contended, the challengers would then have the option of starting and entirely new challenge in court.
It was not immediately clear how the Census Bureau will adjust to the unfolding of the judge’s new timetable. The Administration had told the Supreme Court repeatedly that the census forms had to be finalized by last week (June 30) in order for the census to begin on time, next April 1. The point about such a deadline apparently was a factor in the Supreme Court’s willingness to rule on the census issue on an expedited schedule, skipping over one layer of lower-court review.
Some in the Census Bureau have said that it could wait until October 31, at the latest, to complete the forms – if it had additional resources to pay for speeding up the task.
As of Friday, Administration lawyers told Judge Hazel that the Census Bureau was going ahead with the printing of the census forms without the citizenship question. The omission of that question was ordered earlier by Judge Hazel and also by a federal judge in New York City, and those two orders remain in force in the wake of the Supreme Court decision last week.
In its recent filings in lower courts, the Administration has said that, if it does develop a new rationale behind the citizenship question, it would return to the Supreme Court for guidance on what to do then.
The Administration still has time left – about 17 days – before the Supreme Court puts into effect formally its decision requiring government officials to reevaluate the citizenship question. That does not necessarily mean, however, that it must return to the Court during that remaining time; it could conceivably find another procedural way to do it.
