- The Washington Times - Tuesday, June 25, 2019

President Trump’s goal of asking a citizenship question on the 2020 census has turned into a colossal legal headache, as the courts race against a Census Bureau deadline this weekend for finalizing next year’s questionnaire.

The Justice Department added another wrinkle Tuesday by asking the Supreme Court — which was already considering a part of the case — to issue the broadest possible ruling to settle the issue once and for all.

Solicitor General Noel Francisco said the justices should deal with whether the Trump administration acted with discriminatory intent when it included the question.

Trump opponents were aghast, saying the president’s team was trying to pressure the justices to decide an issue that was only tangential in the oral arguments and briefs.

“It’s part to overstate how crazy a request this is,” tweeted Daniel Jacobson, a former Obama White House attorney.



Yet Mr. Francisco said there was little choice.

Without a full ruling clearing the path, the government will bump against a self-imposed Sunday deadline for finalizing the questions for the 2020 count, Mr. Francisco said.

That means more emergency appeals and more arguments — something the top litigator called a “needless prospect.”

The chaos stems from new information Mr. Trump’s opponents dug up after the case had been through three district courts and after the Supreme Court heard oral arguments on an expedited basis in April.

That information, obtained from a now-deceased Republican voting strategist, suggested that one motive for asking about citizenship on the census would be to help maximize the party’s political power in redistricting.

That is different from the explanation that Commerce Secretary Wilbur Ross, who oversees the Census Bureau, told Congress and the courts. He said his goal was to get better data to enforce voting rights laws, which the Justice Department requested.

The Trump opponents — a coalition of Democrat-led states, members of Congress, immigrant rights activists and voting rights groups — begged lower courts to reopen the case.

On Tuesday, they got their wish.

The 4th U.S. Circuit Court of Appeals, in a 2-1 ruling, said the case was worth giving a district judge in Maryland — who heard an earlier round of arguments — a chance to investigate.

Judge George J. Hazel, an Obama appointee to the Maryland court, ruled last week that there were “substantial” questions about the government’s intent and he wanted to get to the bottom of it.

The big issue is timing. Judge Hazel said he would allow up to 45 days of legal discovery, to be followed by a new ruling.

That would blow past the Census Bureau’s deadline.

One of the 4th Circuit appellate judges — another Obama appointee — said Tuesday that Judge Hazel may need to order the bureau to delay finalizing the questions.

“A preliminary injunction may be necessary to prevent the printing of the census questionnaire from, at least from the government’s perspective, rendering the case moot,” Judge James A. Wynn Jr. wrote.

He said the courts should set a low bar for deciding whether the administration had a discriminatory intent in asking the citizenship question.

Mr. Francisco said that suggestion jeopardizes the census schedule.

That a citizenship question can be asked on the census is not in doubt. It was part of the full census up through 1950 and then was shifted to the census long form. It is now part of the American Community Survey, an in-depth census questionnaire sent to a small fraction of families each year.

But the Trump administration cut too many corners and ignored its advisers in rushing to add the question for 2020, three lower courts ruled.

The Supreme Court sped the case onto its docket without waiting for appeals courts to rule.

That has left a legal tangle. Parts of the case are pending in lower courts even as the justices work toward a ruling expected either Wednesday or Thursday.

Immigrant rights advocates have said the answer is for the justices to send the entire case back to the lower courts.

Tom Wolf, a census specialist at the Brennan Center for Justice, said the high court hasn’t been dealing with the discriminatory intent questions and that releasing a ruling this week that covers that issue would be troubling.

“It turns out there is (at least) one thing worse for the appearance of justice in the census citizenship question cases than the Supreme Court ruling the wrong way on legal issues that are before it. And that is SCOTUS ruling the wrong way on legal issues that aren’t before it,” he said in a post on Twitter.

The citizenship question is perhaps the most freighted case that the Supreme Court considered this term, with both sides heavily invested in the outcome.

Mr. Trump has repeatedly mocked opponents of the question. He even used an appearance with the president of Poland this month to say it is ridiculous for a country not to ask its residents whether they are citizens of the country.

He said he is not too invested in the nuts and bolts of the decision-making or the legal argument, but his reelection campaign has not been shy about claiming credit for getting the question added.

On the other side are Trump opponents who say Hispanics and immigrants will be too afraid to answer the census if it asks about citizenship. One of the judges who ruled on the case calculated a 5% decrease in responses.

If there are fewer respondents, then some places with high Hispanic or immigrant populations could lose political clout when seats in the U.S. House are allocated after the census.

A number of states fear they would lose federal money if refuseniks lower the population count.

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