A federal judge in Maryland will determine whether newly discovered evidence indicates unconstitutional discriminatory intent was behind the addition of a citizenship question to the 2020 Census after an appellate court granted a request to remand the case to the district court on June 25.
The ruling by the U.S. Court of Appeals for the Fourth Circuit follows a request by MALDEF (Mexican American Legal Defense and Educational Fund) and Asian Americans Advancing Justice | AAJC (Advancing Justice | AAJC) to return the case to U.S. District Judge George J. Hazel, who presided over the trial on the citizenship question.
“The always-flimsy house of cards shielding the Trump administration’s biased and nefarious intent in adding a citizenship query to Census 2020 is rapidly collapsing,” said Thomas A. Saenz, MALDEF president and general counsel. “We look forward to presenting our enhanced case demonstrating the unlawful nature of the late addition of the citizenship question, and to vindicating one of our most enduring and important constitutional principles.”
Last week, Hazel indicated that he believed newly discovered evidence presented by MALDEF and Advancing Justice | AAJC raised “a substantial issue” in the only lawsuit still pending that alleges that the Trump administration sought to intentionally discriminate against Latinos and non-citizens when it acted in 2018 to add a citizenship question to the Census.
That new evidence showed direct contact among Thomas B. Hofeller, a GOP strategist, Commerce Department officials, and Trump transition team members about adding the citizenship question in order to shift political power in favor of white voters and away from Hispanic voters. The Census Bureau is part of the U.S. Department of Commerce.
Judge Hazel indicated in a longer opinion issued this week that “it is becoming difficult to avoid seeing that which is increasingly clear. As more puzzle pieces are placed on the mat, a disturbing picture of the decisionmakers’ motives takes shape.”
The Fourth Circuit agreed to remand the case but retains jurisdiction.
“We applaud the Fourth Circuit’s decision to remand this case back to the district court. This will ensure that the Administration’s conduct surrounding the addition of the citizenship question to the census is given a full and fair hearing,” said John C. Yang, President and Executive Director of Asian Americans Advancing Justice | AAJC. “We are honored to fight for our communities and ensure the census is free from discrimination.”
The court of appeals order also included a concurring opinion by Judge James A. Wynn, Jr. that raises the possibility of issuing a preliminary injunction “to prevent the printing of the Census questionnaire from, at least from the Government’s perspective, rendering the case moot.”
The government has argued that the 2020 census forms must be printed by June 30. However, other officials have disputed that date, indicating an October deadline.
MALDEF and Advancing Justice | AAJC sued the Trump administration in May 2018 on behalf Latino and Asian American individuals, Native Americans, social service non-profits, state legislative associations, civil rights groups, voting rights organizations, and community partnerships that would be forced to divert resources to combat a potential severe undercount in their respective communities.
On April 5, 2019, Hazel ruled that the addition of the citizenship question violates the Administrative Procedure Act and the Enumeration Clause of the U.S. Constitution.
The court, however, stopped short of granting MALDEF’s and Advancing Justice | AAJC’s claims that the administration’s intention in adding the question was to discriminate against non-citizens and communities of color in the decennial Census, in violation of the Equal Protection Clause of the Fifth Amendment, and that members of the administration conspired to deprive racial minorities of their constitutional right to equal representation.
MALDEF and Advancing Justice | AAJC appealed to the Fourth Circuit on April 14, challenging Hazel’s decision on the question of whether the motive for adding the citizenship question was unconstitutionally discriminatory.
Census data are crucial to allocating seats in Congress, drawing accurate election districts, and ensuring equitable distribution of federal funds for a wide range of vital programs.
Key Dates in the Fight for a Complete Census Count
Following is a list of significant dates in the case:
March 26, 2018: Secretary of Commerce Wilbur Ross announces the addition of a citizenship question to the 2020 Census, the first inclusion of such a question since 1950.
May 31, 2018: MALDEF and Advancing Justice | AAJC challenge the Trump administration’s decision to add a citizenship question in federal court, arguing it is motivated by racial animus, and violates the Enumeration Clause of the U.S. Constitution and the Administration Procedure Act (APA). The case, La Unión Del Pueblo Entero (LUPE) v. Ross, is filed in the U.S. District Court for the District of Maryland.
July 9, 2018: The lawsuit is amended to include an additional claim that the citizenship question was the product of a conspiracy by Donald Trump, former White House advisor Steve Bannon, former Kansas Secretary of State Kris Kobach, Commerce Secretary Wilbur Ross, former Attorney General Jeff Sessions, and other cabinet members and government officials to violate the civil rights of communities of color. It is the first explicit claim of a conspiracy to deprive minorities of their constitutional rights to equal representation and fair allocation of federal funds by adding a citizenship question to the 2020 Census.
Nov. 9, 2018: U.S. District Court Judge George J. Hazel denies the Department of Justice’s motion to dismiss Lupe v. Ross.
Dec. 12, 2018: La Unión Del Pueblo Entero (LUPE) v. Ross is consolidated with another suit filed in Maryland, Kravitz v. United States Department of Commerce.
Dec. 19, 2018: Judge Hazel rejects the Trump administration’s motion for summary judgment of MALDEF’s lawsuit.
January 22, 2019: Trial begins in a Maryland federal court in Kravitz v. United States Department of Commerce.
April 5, 2019: Judge Hazel rules that the Trump administration’s addition of a citizenship question violates the APA and the Enumeration Clause.
April 8, 2019: The Trump administration appeals Judge Hazel’s ruling to the U.S. Court of Appeals for the Fourth Circuit.
April 16, 2019: MALDEF and Advancing Justice | AAJC file a cross-appeal with the Fourth Circuit seeking review of Judge Hazel’s denial of the claim that the Trump administration’s motive for the citizenship question was racially discriminatory.
May 29, 2019: The Fourth Circuit agrees to expedite an appeal filed by MALDEF and Advancing Justice | AAJC.
May 30, 2019: The New York Times publishes a story revealing that now-deceased Republican redistricting strategist Thomas B. Hofeller’s computer hard drives show that he worked with the Trump administration, the Trump transition team, and former Kansas Secretary of State Kris Kobach to include a citizenship question as a way to unlawfully benefit some groups.
June 3, 2019: MALDEF and Advancing Justice | AAJC file a motion asking Judge Hazel to reconsider whether the Trump administration conspired with Hofeller and others to intentionally discriminate against Latinos and immigrants of color when they added the citizenship question to the 2020 Census.
June 18, 2019: MALDEF and Advancing Justice | AAJC to present oral argument before Judge Hazel asking him to reconsider whether new evidence is relevant to the denial of the claim that the Trump administration sought to intentionally discriminate against Latinos and immigrants of color when it added a citizenship question to the 2020 Census.
June 19, 2019: In a response to a request from MALDEF, Judge Hazel issues an order noting that new evidence “raises a substantial issue” regarding whether the Trump administration’s aim for adding the citizenship request was intentionally discriminatory.
June 20, 2019: MALDEF and Advancing Justice | AAJC file a motion in the Fourth Circuit Court of Appeals requesting that the case be sent back to the district court based on Hazel’s ruling.
June 24, 2019: Judge Hazel releases his full opinion saying of the new evidence, “As more puzzle pieces are placed on the mat, a disturbing picture of the decisionmakers’ motives takes shape.”
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