Judge: Census-question case must be reopened over "disturbing" documents on racial bias

Federal judge in Maryland rules evidence on dead GOP operative's computer points toward "discriminatory purpose"

By Igor Derysh

Senior News Editor

Published June 26, 2019 6:30AM (EDT)


A federal judge said that new documents found on a deceased Republican operative’s computer painted a “disturbing picture,” ruling that there is enough new evidence to reopen the case into the Trump administration’s proposed citizenship question on the 2020 census.

Maryland U.S. District Judge George Hazel ruled that new evidence "potentially connects the dots between a discriminatory purpose" and the Trump administration’s decision to add the citizenship question.

"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," Hazel wrote.

The Supreme Court is expected to rule on the case this week, which may render Hazel’s decision moot. Voting rights activists hope that the new evidence will be considered. 

The ACLU included Hazel’s ruling in a new filing to the Supreme Court Monday. The new evidence was found on the hard drives of longtime Republican gerrymandering guru Thomas Hofeller, who died last year. The files show that Hofeller lobbied the Trump administration to add the citizenship question after his study found that redrawn districts based only on the number of citizens rather than the entire population would “clearly be a disadvantage to the Democrats” and “would be advantageous to Republicans and non-Hispanic whites,” according to court filings.

Hofeller also wrote at least part of the justification the Justice Department later used to defend the question, arguing that it was actually necessary to increase Hispanic voter turnout and enforcing the Voting Rights Act, even though his study found the opposite to be the case.

“The evidence suggests that Dr. Hofeller was motivated to recommend the addition of a citizenship question to the 2020 Census to advantage Republicans by diminishing Hispanics’ political power," Judge Hazel wrote. "Taken together with existing evidence, it appears that Dr. Hofeller was involved in the creation of the pretextual [Voting Rights Act] rationale and worked with [Mark] Neuman, [Commerce] Secretary [Wilbur] Ross’s 'trusted advisor,' to drive the addition of a citizenship question."

“If the case is remanded, the court will reopen discovery for no more than 45 days, order an expedited evidentiary hearing, and provide a speedy ruling,” he wrote.

The ACLU filing also included a report released by the Census Bureau last week, showing that “the addition of a citizenship question will have an 8.0 percentage point larger effect on self-response rates in households that may have noncitizens relative to those with only U.S. citizens.”

According to the Census Bureau, that would lead to an “overall 2.2 percentage point drop in self-response in the 2020 census, increasing costs and reducing the quality of the population count.”

The ACLU asked the Supreme Court in the filings to delay its ruling to allow lower courts to examine the new evidence. 

The House Oversight Committee is also investigating the decision to add the citizenship question to the census. In a memo to members of the committee, staffers wrote that James Uthmeier, a former adviser to Commerce Secretary Ross, refused to answer “dozens of questions” but nonetheless confirmed "key information” about the decision.

“Mr. Uthmeier disclosed that Secretary Ross directed him to begin examining the citizenship question within weeks of being sworn in as Secretary and that they had multiple conversations about it well before any request came from DOJ — erasing any doubt about the inaccuracy of Secretary Ross’ claim that he added the citizenship question ‘solely’ at DOJ’s request,” the memo said. 

Committee chair Rep. Elijah Cummings, D-Md., said in a statement to the Washington Post that Ross and administration officials “claimed that the only reason it wanted to add the citizenship question was to help the Department of Justice enforce the Voting Rights Act, but that claim has now been exposed as a pretext.”

“Official after official appearing before the Committee have refused to answer questions about the real reasons behind their effort,” he said, “but the mounting evidence points to a partisan and discriminatory effort to harm the interests of Democrats and non-Whites.”

By Igor Derysh

Igor Derysh is Salon's senior news editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

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