Judge orders census citizenship case to go forward, will look at Trump 'discriminatory motive'

The Supreme Court ruled last month that Commerce Secretary Wilbur Ross did not provide an honest reason for why he wanted to include the question.
Image: U.S. Commerce Secretary Wilbur Ross testifies at a House Oversight and Reform Committee hearing
Commerce Secretary Wilbur Ross testifies at a House Oversight and Reform Committee hearing on oversight of the Commerce Department, in Washington on March 14, 2019.Mary F. Calvert / Reuters

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By Pete Williams

WASHINGTON — A federal judge Friday ordered that a case go forward on whether a citizenship question can be added to the 2020 census and said it will focus on whether the Trump administration was "steeped in discriminatory motive."

U.S. District Court Judge George Hazel's order could allow evidence from recently deceased Republican consultant Thomas Hoeffler to be introduced. Files discovered by his daughter showed that he played a key role in the administration's decision to try to add the question and that it would aid GOP efforts to radically gerrymander legislative districts to the disadvantage of Democrats.

Hazel noted that the claims of those against adding the question "are based on the premise that the genesis of the citizenship question was steeped in discriminatory motive. The discovery contemplated by the Court related to the recently discovered evidence in this case goes directly to that issue."

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The judge issued his order shortly after the administration notified him that government lawyers are looking at "all available options" for adding the question to the 2020 census form that goes to every U.S. household.

The notice, in a brief document filed in federal court in Maryland, was expected, given President Donald Trump's comments early Friday that he has not given up on the idea and might issue an executive order directing the Commerce Department to add the question.

"We have four or five ways we can do it. It's one of the ways and we're thinking about doing it very seriously," Trump said before leaving Washington for a weekend at his golf club in New Jersey.

The Supreme Court ruled late last month that Commerce Secretary Wilbur Ross did not provide an honest reason for why he wanted to include the question. The court accordingly barred the government from using that reason to add the question to the form. That left open the possibility that Ross could offer a new reason, but government lawyers did not view that option as a promising one.

On Tuesday, Ross seemed to concede the point. "The Census Bureau has started the process of printing the decennial questionnaires without the question," he said.

But Trump told administration lawyers to find some way to get the question on the census form.

In the notice filed Friday, Justice Department lawyers said they "have been asked to re-evaluate all available options" following the Supreme Court ruling to "allow for a new decision to include the citizenship question on the 2020 Decennial Census."

If the Commerce Department does come up with a new rationale, the groups that have opposed the question and who have prevailed in court so far "will be fully entitled to challenge the decision at that time," the government's court filing said.

Anything the administration does from here on, whether by stating a new reason for including the question or acting through executive order, will produce a new round of lawsuits, putting added pressure on the government to get all the forms printed in time.

For now, the Justice Department assured the Maryland judge, "the Department of Commerce and Census Bureau currently are enjoining from printing a census questionnaire that includes a citizenship question."