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Census citizenship question opponents make desperate last-minute accusations

Census citizenship question opponents make desperate last-minute accusations

It’s unlikely this dubious publicity stunt will work with SCOTUS due to issue a ruling this month.

The Supreme Court will soon decide whether the Trump administration can include a question about citizenship on the 2020 census.

It might seem strange that such a matter is before the Supreme Court at all. But when the Trump administration explored adding the question it was not…especially solicitous, shall we say, about following administrative law. Nevertheless, the government argues that it is entitled to significant deference on how to best design the census and, after the oral argument in April, most observers got the impression that the five conservative justices agreed. 

Here’s the background: In March 2018, Commerce Secretary Wilbur Ross sought to add a citizenship question to the 2020 census. He claimed to be responding to DOJ officials who told him that citizenship data would help them enforce the Voting Rights Act (VRA). Blue states and various advocacy groups filed suit, alleging that the VRA rationale was a pretext. Ross’s real motivation, they said, was to deter immigrants from responding to the census, which could cost Democratic constituencies federal benefits and seats in the House.

Evidence presented at trial suggests that the DOJ request did not arise independently, but was actually solicited by Ross. This matters because in an Administrative Procedure Act case like this one, the plaintiffs don’t have to show that there is no legitimate reason to ask about citizenship. They need only impeach Ross’s reasons for asking about it. Federal judges in three separate lawsuits concluded that the VRA rationale was contrived and ordered the question removed. Because the Census Bureau needs to start printing the questionnaires over the summer, the Supreme Court agreed to hear an expedited appeal, with a decision to be rendered by the end of this month. 

It certainly appears that the plaintiffs expect to lose, whatever the merits of their arguments. Nothing but the expectation of defeat could possibly explain what drove them last Thursday to file a scorched-earth motion for sanctions against the government.

The motion, styled as a letter to the trial judge in Manhattan, alleges that two key government witnesses lied about the role of Thomas Hofeller, a now-deceased Republican redistricting expert, in getting the question added. The plaintiffs also claim that the officials—then-Acting Assistant Attorney General John M. Gore and Ross adviser A. Mark Neuman—lied about the internal process that produced the DOJ’s request for the citizenship question. The allegations feel like nitpicking: see the below thread by one of the lawyers in the case. 

They’re basically saying that Neuman failed to disclose that he gave Gore a draft of the DOJ letter one year earlier, despite the fact that they never specifically asked Neuman about that letter and the government produced it in full in discovery. That’s the Grand Deception that the plaintiffs want the government sanctioned over.

Less than an hour after the plaintiffs’ letter was filed, The New York Times dropped an in-depth story about the Hofeller revelations. 

The gist of the NYT story is as follows: Thomas Hofeller was a legendary Republican mapmaker who died in August 2018. Recently, his estranged daughter shared his computer files with a law firm representing the plaintiffs. The files revealed that Hofeller wrote an early draft of the DOJ letter that asked Commerce to add the question. What’s more, it turns out that Hofeller also authored a 2015 study that explored redistricting on the basis of eligible voters instead of total population. Such a switch would, in Hofeller’s words, “be advantageous to Republicans and Non-Hispanic Whites.” But there was a major problem: there existed no citizenship dataset that courts would permit to be used in redistricting. The solution, Hofeller advised, was to gather citizenship data on the 2020 census. The plaintiffs believe that these discoveries are important because they directly link the citizenship question to partisan motivations.

Leaving aside the fact that Hofeller’s involvement, even if it is being accurately characterized, does not shed light on Ross’s motives, this “new evidence” is not even in the record, and it’s likely too late to admit it. So what exactly do the plaintiffs hope to accomplish? The WSJ Editorial Board beat me to the punch.

The real goal of flogging the Hofeller memo now is to raise enough of a political stink to intimidate the Supreme Court to block the citizenship question. “Will the Legitimacy of the Supreme Court Survive the Census Case?” asked an op-ed in the New York Times. Whenever you read “legitimacy” in a sentence about the Court, you know it’s a political missile aimed directly at Chief Justice John Roberts.

But after the government’s response Monday night, the missile appears to have misfired. Here are some crucial points from the response:

Also the product of Plaintiffs’ own deposition decisions is Neuman’s alleged failure to inform Plaintiffs of Hofeller’s purported role in drafting the Neuman Letter. Neuman was discussing the letter’s authorship when the questioner cut him off: “I don’t—I don’t want—I’m not asking you to tell me about who the original author was or anything.” It is quite rich for Plaintiffs to now complain about Neuman’s failing to tell them something he was instructed not to tell them. And Plaintiffs did not lack for opportunity; Neuman testified at length about Hofeller and the discussions they had about redistricting and the census.

Gore, it is true, did not testify that Neuman gave him a draft of the Neuman Letter. But that is because Plaintiffs did not ask him about it. Gore disclosed that he talked to Neuman while drafting the Gary Letter…Perhaps more important, Plaintiffs have long known that Gore had the Neuman Letter. The government produced the Neuman Letter in full in discovery. In the cover email to Plaintiffs’ counsel, the government expressly said: “These materials were collected from John Gore” “in hard copy.” Accordingly, Plaintiffs have known since at least October 23, 2018, that Gore had the Neuman Letter—which belies their repeated claims that they learned that fact only recently. It is thus unclear how Plaintiffs could have been misled by Gore’s failure to tell them something they (1) did not ask him and (2) have known since last October. Plaintiffs’ obliviousness is not a valid basis to sanction the government.

At least on first glance, these are pretty decent defenses. Yet based on how the entire census story has developed, you’d think it was indisputable fact that the administration had lied.

Ever since oral argument, important opinion-makers have suggested that the administration’s deception is so damning that a ruling for the government would prove that the Court has been corrupted and politicized. Its very legitimacy—gasp—would “erode,” in the words of former AG Eric Holder. 

“For the sake of its own legitimacy,” Georgetown professor Joshua Geltzer advises, “the court must…avoid getting snookered by Trump’s lawyers.” Slate’s Mark Joseph Stern says that a “partisan ruling in this case”—i.e. the government winning—”would diminish the court’s legitimacy and fuel support for the addition of more justices.” Jessica Levinson, a professor at Loyola Law School, invokes the cliche of “politicians in robes.”

This is looking less and less like an ideological battle between conservative and liberal judges and more like a Supreme Court controlled by partisan politicians in robes. And the census ruling could prove it.

Ryan Cooper at The Week argues that allowing the question would “further erode the legitimacy of the court” and “[strengthen] calls from Democrats to enlarge its size as soon as they regain power.”

This all sounds familiar to people who remember how many media reports claimed that, in response to external pressure, Chief Justice John Roberts flipped his vote on Obamacare in 2012.

Whatever the truth of those stories, they are evidently the inspiration for those staking the Court’s legitimacy on the census case. However, the new evidence really doesn’t seem substantial enough to get any of the Justices to change their votes. So while it is generally pointless to speculate about the internal dynamics of the Court, it is unlikely that the outcome of this case will be influenced by these eleventh-hour allegations.


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In his infamous Obamacare ruling Roberts proved that he cared more about being invited to the Very Best Washington dinner parties than the Constitution. So it seems to me there is a good chance he will roll over for the MSM/DNC axis again in this case.

    Highly likely.

    We know the so-called ‘wise Latina’ is never going to vote to allow it. Kagan is a committed liberal and would never buck them on something like this. Ginsberg and Breyer are too old and stupid to do anything other than blindly vote the party line.

    That just leaves Roberts to crumble like the pussy that he’s proven to be in the past few years.

      Joe-dallas in reply to Olinser. | June 5, 2019 at 9:40 am

      “We know the so-called ‘wise Latina’ is never going to vote to allow it.”

      Ricci & Shutte v Bamn – Both are prime examples of “the wise latino” belief in discrimination.

    “He then, according to the accounts, tried to broker a deal among justices, to find a way to reach the result he wanted. In short, he politicked.

    Granted, some of this goes on in lots of court cases. But most of that sort of “brokering” involves lesser matters, such as how to explain the exact nature of an opinion already reached. In this case, Roberts reportedly negotiated something far more central, namely the opinion itself. As the reports go, he tried hard to gain one of the court “conservatives” to join him, but, failing that, “turned to the Court’s two moderate liberals, Stephen Breyer and Elena Kagan. The threesome negotiated a compromise decision …”

    The unelected judge knows what’s best and is going to negotiate for the rest of us…..again.

Underlying their claims is modern Democrat belief that anything at all is allowed if done for the “right” motives, and nothing is allowed if done for the “wrong” motives.

Progressive morality in simple terms:

Good: anything we or our friends do, because we’re Good.
Bad: anything you or your allies do, because you’re bad.

Just rephrase the question is “unregistered and undocumented future Democrat voter”

Roberts is a very poor and unworthy Chief Justice. He and Jeff Sessions make a matched set.

Yet another desperate hail mary pass. We must be winning.

“For the sake of its own legitimacy” translates out as “When the court rules like we think it will, and we lose, we’re going to throw thousands of screaming protesters at them, call the members who voted against us nasty names, threaten their children, stand in front of their houses, send them death threats, run tens of thousands of news articles proclaiming their ignorance of the law written by people who can’t get a job bagging groceries, and generally make ourselves into such of a royal pain that every conservative on the court will regret it for the rest of their lives, and then we plan on haunting them in the afterlife.”

About right?

We’ve seen this before. States with large populations of noncitizens want them counted to enhance representation while states without large populations of noncitizens want them excluded. The year was 1787, the place, Philadelphia, and the issue how to count slaves.

    dunce1239 in reply to Perfesser33. | June 5, 2019 at 6:45 pm

    slavery was abolished. Are you saying we should abolish any restrictions on who deserves representation in our government??

      Currently there are none as all persons are (supposed to be) counted. I would prefer that, for apportioning representatives, that only citizens and permanent residents be counted and that those here illegally be considered as “tourists” and not counted, but I don’t see that happening any time soon.

      I just found it amusingly ironic that (mostly) liberal states are using essentially the same argument that the slave states used in the Constitutional Convention.

Does anyone else get the feeling that these people dont want to live with the rest of us as much as to force us to live like they believe?

Why exactly are we assigning congressional representation on the basis of the number of illegal immigrants illegally residing in sanctuary cities?

“But when the Trump administration explored adding the question it was not…especially solicitous, shall we say, about following administrative law.”

Pardon me? How on earth would any question be illegal on the census, especially one about the nature of your citizenship?

Also, it’s ‘President Trump’ to you, like it or not. Have some respect.

Would knowing the number of citizens help in addressing the issues regarding voter fraud?

Who in their right mind when answering this question is going to identify as a non-US citizen?

This whole charade reminds me of another time consuming debate: how many angels _can_ dance on the head of a pin?

And we pay these people for this?

    artichoke in reply to molson. | June 5, 2019 at 3:47 pm

    You’re right, enforcement might be hard, but it is a crime to lie on a census question. Hopefully the wouldn’t want to risk it.

    JusticeDelivered in reply to molson. | June 5, 2019 at 5:09 pm

    Those who do not want immediate deportation.

    Sanddog in reply to molson. | June 5, 2019 at 6:08 pm

    I doubt legal residents would have a problem with it. The question isn’t whether or not you’re here illegally, it’s whether or not you’re a citizen. This would at least give us a start in understanding the true number of illegals in this country after legal residents are subtracted from the non-citizen count. The democrats do NOT want the citizens of this country to know how many people are here illegally.

    Cleetus in reply to molson. | June 6, 2019 at 7:53 am

    Two points…

    First, if it is illegal to lie on the census and the responses are anonymous, then how would they know who is lying?

    Second, if illegals do not respond to the census out of fear of whatever, then wouldn’t that, added with those responded as being illegal aliens, tend to give us a more true approximation of the citizen population? Where it gets interesting is when the census shows X adult citizens in any given location and then the number of votes cast in this location exceeds X.

This is the problem that I have with Roberts. Not that he’s a liberal or not, it’s that he’s apparently vulnerable somehow to pressure from the outside and done in an obvious way that makes it clear he submitted to that pressure.

Once again if he caves then his “legacy” is a garbage dump on the way to the Philippines.

Have they proposed that we count illegals as 3/5 of a citizen for apportionment purposes? Should be no problem, what with precedent, and all. Bipartisan compromise, check. Legitimacy of the SC blindly following precedent, check. Sounds like the Dems are onto a winner.

So the bombshell is that the question was proposed as a way to develop census evidence about the population count, to provide legal information important for decisions on redistricting!

That sounds like exactly the sort of thing a census is for. If any Justices were wavering, it should tip them to vote to allow the citizenship question.

    rdmdawg in reply to artichoke. | June 5, 2019 at 4:03 pm

    In a sane world, this is true. We’ve seen way to much sophistry and insanity coming from the judiciary to believe commonsense, reason, and logic will win in any given case.

      dunce1239 in reply to rdmdawg. | June 5, 2019 at 6:51 pm

      The court itself raises serious questions as to their legitimacy with penumbras and BS reasoning.

    JusticeDelivered in reply to artichoke. | June 5, 2019 at 5:07 pm

    We need to make lying about the quest cause for immediate deportation, moving them to the front of the line.

      artichoke in reply to JusticeDelivered. | June 5, 2019 at 9:10 pm

      It could have that effect, because as criminals they are priority deportees. They might not be criminals (visa overstays) or even if they have committed the crime of entering illegally, this would be a big additional crime.

      If we can detect they are lying then we know they’re not a citizen yet they said they were. If we already know this, then what’s the point of the question?

      Somehow I don’t think many are going to respond to the threat of “tell us now or it will go a lot worse for you if we find out later”