DOJ Is Still Looking For ‘New’ Reason To Add Citizenship Question To Census

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The government needs more time to decide how it will move forward on finding a way to add a citizenship question to the 2020 census, Justice Department attorneys told a Maryland federal judge on Friday. In the meantime, the Justice Department wants to delay further discovery on the issue of whether the citizenship question was put forward for racially discriminatory purposes.

Attorneys for plaintiffs in the case wrote in a separate Friday filing that the government had told them that discovery in the case should “be held in abeyance indefinitely until Defendants reach a ‘new’ decision regarding whether or not they will attempt to inquire about citizenship status as part of the 2020 decennial census.”

In a status report, the Justice Department laid out its view.

“Any new decision by the Department of Commerce on remand providing a new rationale for reinstating a citizenship question on the census will constitute a new final agency action, and Plaintiffs will be fully entitled to challenge that decision at that time,” DOJ attorneys wrote.

Per an earlier injunction, census forms will continue to be printed without the question, the government assured U.S. District Judge George Hazel in the Friday filing.

The Maryland case was on appeal to the U.S. Court of Appeals for the 4th Circuit when explosive new evidence emerged about the origins of the push to add the citizenship question. Files discovered on the hard drive of the GOP’s now-deceased redistricting guru showed that he was involved in the push for the citizenship question and suggested that the decision to add the question was motivated in part by a desire to protect white political power at the expense of Hispanics.

In an extraordinary move, the 4th Circuit sent the case back to the trial court to reconsider whether the push for the citizenship case was motivated by racial discrimination in light of the new evidence. The judge in the case had asked both the government and the challengers for a new discovery schedule to explore that question, which gave rise to the confusing series of responses this week by Trump’s Justice Department.

Judge Hazel ordered discovery to begin in a letter issued less than two hours after the DOJ asked for it to be delayed.

“Plaintiffs’ remaining claims are based on the premise that the genesis of the citizenship question was steeped in discriminatory motive,” Hazel wrote. “Regardless of the justification Defendants may now find for a “new” decision, discovery related to the origins of the question will remain relevant.”

Hazel has been trying to keep the new round of discovery on a tight 45-day schedule and has expressed dismay with a confusing series of statements by DOJ lawyers and President Trump this week.

The Supreme Court in a ruling issued last week invalidated a March 2018 decision by the Department of Commerce to add the question. The Maryland case is separate from the New York case challenging the citizenship question, which went all the way to the Supreme Court.

That set off a topsy-turvy series of events, starting with a statement from the Justice Department on Tuesday that 2020 census forms were being printed without the citizenship question.

The next morning, Trump unexpectedly tweeted that the government was “moving forward” with the question.

At a phone-in court hearing later that day, DOJ attorneys on the case told Judge Hazel that they had been “instructed” to find a way to re-add the citizenship questions to census forms, even as printing began earlier in the week.

In an impromptu Friday news conference, Trump told journalists that the citizenship question was needed “for Congress, for redistricting.” That response appeared to contradict the arguments that Trump’s own DOJ made throughout the case, while hewing to what the question’s detractors have argued since the beginning.

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