Trump officials ask Supreme Court to rule on discrimination claims in citizenship question decision

The Justice Department is urging the Supreme Court to consider equal protection claims in its forthcoming ruling on the Trump administration’s addition of a citizenship question to the 2020 census following a lower court decision Tuesday.

Solicitor General Noel Francisco wrote a letter to justices Tuesday arguing that an earlier appeals court decision to send a separate lawsuit on the question back to a lower court to review claims of discrimination “underscores the need” for the Supreme Court to weigh in.

Francisco in his letter referenced the “Hofeller files” –– documents recovered from the hard drives of late Republican operative Thomas Hofeller, who is alleged to have played a previously undisclosed role in orchestrating the census citizenship question.{mosads}

Those documents show that Hofeller conducted an unpublished study in 2015 that found that asking about citizenship on the census would help Republican and white groups in redrawing congressional districts, while harming Democrats and Hispanic communities.

And the evidence suggests that Hofeller played a role in drafting a memo used by the Trump administration to argue for the citizenship question, and that he was contacted by a Census Bureau staffer in 2015 about potentially asking about citizenship on the 2020 survey.

If true, those claims undercut the Trump administration’s argument that the question rolled out by the Department of Commerce under secretary Wilbur Ross was added solely to help enforce the Voting Rights Act.

Francisco argued in his letter Tuesday that the Supreme Court should “address the equal-protection claim and the immateriality of the Hofeller files in its disposition” of the case “so that the lawfulness of the secretary’s decision can be fully and finally resolved.”

The solicitor general maintained that justices can rule on the equal protection claims because the administration referenced it in its opening brief for the case. And he said that the evidence involving Hofeller was also “put before this court” in a motion filed by the ACLU, asking the Supreme Court to send the case back down to a lower court to review the discrimination claims.

“Accordingly, the equal-protection issue is squarely before this court for resolution,” Francisco wrote.

In the Fourth Circuit Court of Appeals ruling issued earlier Tuesday, the appellate court sent a separate lawsuit challenging the citizenship question down for reconsideration before U.S. District Judge George Hazel in Maryland.

Hazel, an Obama appointee, has said that new evidence rebutting the Trump administration’s argument that the citizenship question was added to enforce the Voting Rights Act “raises a substantial issue.” He had previously struck down the question, finding that officials violated federal law in adding it to the census.

Francisco, in the letter Tuesday, emphasized the Census Bureau’s deadline to finalize census materials by the end of June in order to get the 2020 survey out in time, as reason the Supreme Court should rule on the allegations of a discriminatory intent now.

He said that the possibility of Hazel finding there was a discriminatory intent and issuing a preliminary injunction against the census citizenship question “jeopardizes that schedule.”

“Were the district court to enter such an injunction, the government would be forced to seek emergency relief from this Court with a need for resolution by June 30, just five days from now. Thus, this Court would have to address the equal-protection issue anyway, only on a highly expedited basis,” Francisco argued.

He said that, in order to “avoid that needless prospect,” the justices “should address the equal-protection claim in its opinion, and make clear that the administrative record, the extra-record evidence, and the Hofeller files do not, individually or together, provide any basis for setting aside the secretary’s decision on the ground that it violates principles of equal protection.”

The Supreme Court could issue its ruling on whether it will allow the citizenship question to appear on the 2020 census as soon as Wednesday.