The ACLU asked the Supreme Court to delay handing down its decision in the census citizenship case so that the trial court could consider new evidence that the group recently had put forward.
The extraordinary request comes as the justices are expected to rule in the case within the next three weeks. The parties had been operating under and end-of-June deadline for the census forms to be sent to the printer.
However, the ACLU pointed to testimony from one of the government’s own witnesses indicating that the Census Bureau could wait until October 31 to finalize the forms.
“If this Court does not affirm [the lower court decision striking down the question] it should withhold judgment until the serious issues raised by the newly discovered evidence are probed by the district court, after which the Court can issue a decision based on the complete record,” the ACLU’s filing said.
The new evidence is files from a now-deceased GOP gerrymandering guru, Thomas Hofeller, suggesting that he played a more pivotal role than previously known in getting the question added to the census and that his reasons for advocating for the question were partisan in nature.
The files were found on back-up hard drives obtained by his estranged daughter, who provided them for a separate, redistricting case in North Carolina. The challengers in the North Carolina case are being represented by the same law firm that is assisting the ACLU in the census lawsuit.
“The Court should not bless the Secretary’s decision without answers to outstanding questions going to the heart of the case—all of which should have been properly reflected in the Administrative Record,” the ACLU told the Supreme Court Wednesday.
The Trump administration has claimed that the reason it was adding the question to the census was to enhance Voting Rights Act enforcement — a rationale three lower courts have said was pretextual in their decisions striking down the question.
Hofeller’s files support this finding, the ACLU has said. Among them was a secret study he wrote in 2015 that said a census citizenship question was necessary to overhaul redistricting in a way that would boost the GOP and white voters. His files also include a document laying out the VRA justification that was included, verbatim, in a draft justification that was given a Justice Department official as the official was working on the administration’s official request for the question.
The new evidence, the ACLU said in its Wednesday filing, “indicates that Commerce understood that adding a citizenship question would enable redistricting methods harmful to voters of color, and that Commerce knew that the VRA rationale was a pretext for that real motivation: i.e., that the purpose of adding a citizenship question was not to protect minority voting rights, but to dilute them.”
The Department of Justice has denied that there was any connection between the formal request for the question and the 2015 Hofeller study.
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