If the Trump administration does not want another round of discovery into whether its census citizenship question was discriminatory, it has until Monday to tell the judge who is currently considering the claim that it is backing down from trying to add the question.
That is according to Denise Hulett, a lawyer for the Mexican American Legal Defense and Educational Fund, who was on teleconference hearing that U.S. District Judge George Hazel held Thursday afternoon with the parties in the census citizenship case in Maryland. A second source with knowledge of the call also gave TPM that read out.
The judge had scheduled the call before the Supreme Court handed down its decision Thursday morning — which blocked for now the administration from adding the question to the 2020 census — so that the parties could talk next steps on discovery.
The Justice Department, according to the sources, was not able to say yet whether it intended to try to get the question added back onto the census.
Thursday’s opinion, written by Chief Justice John Roberts invalidated Commerce Secretary Wilbur Ross’ March 2018 decision to add the citizenship because he and the court’s liberal wing found Ross’ stated reason for adding it — Voting Rights Act enforcement — to be pretextual.
Roberts’ opinion left wide open the possibility the Trump administration could add the question in the future as long as it put forward a legitimate reason for doing so. The court’s four other conservatives would have let the question stay on the census as is.
The question is whether the administration has enough time to do so. The Justice Department has represented, and the Census Bureau has maintained, that the survey forms need to be finalized for printing by July 1 A Census Bureau official, however, did testify that with “exceptional resources” that deadline could be pushed back until late October.
So far the Commerce Department has not issued an official response to the Supreme Court’s decision. Ross is currently out of the country at the G20 meeting.
In Maryland the judge is reconsidering his previous ruling that there was insufficient evidence of a discriminatory intent in adding the question. He decided to reopen the case last week after the the challengers put forward evidence that a now-deceased GOP consultant was involved in adding the question and that he had previously analyzed the boost the data from it could give Republicans by diminishing the political representation of Latinos.