There’s a lot of crowing right now about the Justice Dept.’s non-response to Judge George G. Hazel’s demand that the government formally state that it will not include a citizenship question. And (via UC Irvine Law and Political Science Professor Rick Hasen) he has now denied their attempt to cleanse the case of animus to allow the Administration to come up with a new lie to justify their perjury in defending the inclusion of the question. But, as Cornell Law Professor Michael Dorf says, Justice Roberts’ opinion was designed with the goal of allowing the Administration to do just that. :
When a court remands a case to an agency because the agency did not comply with proper procedures, the agency is permitted to reach the same conclusion by dotting the i's and crossing the t's.
Pretext is different, however. The Roberts opinion already says that the agency COULD have added the citizenship question for legitimate reasons. And we can be sure that the Trump administration will claim to be doing just that. But EVERYONE KNOWS that the political impact will still be the real reason.
Based on the Travel Ban litigation, there is reason to fear that the SCOTUS will uphold the citizenship question after the administration "lawyers it up" better.
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(2) Nowhere does the Chief Justice actually say that Ross's motive for including the census question was illicit. What he says is that the explanation--to enforce the VRA better--was not the actual reason. The remand is therefore for the purpose of allowing the administration to come up with a better explanation. That is why more than one commentator has characterized the remand as an opportunity for the administration to do a better job of lying.
Thanks to Judge Hazel for making it more difficult for this wicked Administration and their crooked judicial enablers to intimidate Hispanic Americans and to deny resources to areas in which immigrants live. But we will get only the liberty that we demand from twisted men like John Roberts.
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Added, 1:20AM Eastern, 7/6/19
Joyce Vance White, former USA, commenting on another (but related) lie of the Census question case:
UT Professor Steve Vladeck on this same lie (to which Vance is responding):
If the case were not about denying Americans the right to vote through gerrymandering and denying congressional districts necessary resources, as Trump admitted today, then it wouldn’t matter when the citizenship question was posed. It could be done as a non-binding Census survey or in the 2030 Census.
Update 2, which I will edit and expand into a new diary: The ACLU (h/t Leah Litman U. Mich Law) and Marty Lederman (Georgetown Law; h/t Rich Hasen) have provided more detail on why the DoJ’s behavior in the census question is so bad. As a preliminary, to give a sense of the many wrinkles in the Census citizenship question, Hansi Lo Wang, NPR:
This fight has spanned multiple fronts — from lawsuits in New York, Maryland, California, and Washington, D.C., to an ongoing congressional investigation.
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The Census Bureau has said the printing of 1.5 billion paper forms, letters and other mailings is scheduled to start by July 1. But while testifying for the citizenship question lawsuits last year, Census Bureau officials said that "with exceptional effort and additional resources," the deadline for finalizing forms could be pushed back to Oct. 31.
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[In the Maryland case] The Supreme Court [on June 27th] rejected the administration's explanation that it wants a citizenship question to better protect the voting rights of racial minorities.
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But Judge Hazel wrote in an opinion released Monday [June 24th] that plaintiffs in the Maryland-based lawsuits have presented new evidence that "potentially connects the dots between a discriminatory purpose—diluting Hispanics' political power" and the decision to add the question by Commerce Secretary Wilbur Ross, who oversees the Census Bureau. [Hazel’s decision was based on allegations raised
Now, the bottom line is that the Administration used the June 30 deadline for printing in order to hustle the process of discovery. John Roberts blocked testimony by Wilbur Ross that would have exposed the racial discrimination that Hazel identified. That evidence emerged in the New York case by May 30th:
“The new evidence reveals that Dr. Thomas Hofeller, the longtime Republican redistricting specialist, played a significant role in orchestrating the addition of the citizenship question to the 2020 Decennial Census in order to create a structural electoral advantage for, in his own words, ‘Republicans and Non-Hispanic Whites,’ and that defendants [Wilbur Ross and the Commerce Dept.] obscured his role through affirmative misrepresentations,” an attorney for the challengers said in a letter to U.S. District Judge Jesse Furman, who is presiding over the underlying case.
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The ACLU traces the genesis of the citizenship question to Hofeller’s study, commissioned by the Washington Free Beacon, a conservative news outlet backed by hedge fund billionaire Paul Singer, in 2015.
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The ACLU claims that Hofeller also “ghostwrote a substantial part” of the letter that Neuman wrote creating a Voting Rights Act pretext to add the question.
“The new evidence demonstrates a direct through-line from Dr. Hofeller’s conclusion that adding a citizenship question would advantage Republican and non-Hispanic whites to DOJ’s ultimate letter,” the letter states. “The new evidence thus not only contradicts testimony in this case, but it shows that those who constructed the VRA rationale knew that adding a citizenship question would not benefit Latino voters, but rather would facilitate significantly reducing their political power.”
The letter made public today contains light redactions disguising [Mark] Neuman’s allegedly false testimony.
The allegations are formalized in the ACLU July 5th filing for estoppel:
The Defendants used the June 30 deadline to argue successfully to this Court, the Second Circuit, and the Supreme Court to expedite the matter. These actions prejudiced Plaintiffs by condensing the time to litigate the case—which, among other harms, required Plaintiffs to forego discovery they firmly believed would support their claims for relief, including under the Fifth Amendment’s equal protection guarantee. New York v. U.S. Dep’t of Commerce, 351 F. Supp. 3d 502, 671 (S.D.N.Y. 2019) (noting that “Plaintiffs could have carried their burden [to show discriminatory purpose] had they had access to sworn testimony from Secretary Ross himself,. . . [b]ut Plaintiffs were denied the opportunity to depose Secretary Ross because the Supreme Court stayed this Court’s Order authorizing such a deposition . . . [and] [i]n light of the urgency of these proceedings, Plaintiffs decided to press a head to trial rather than waiting to see if the Supreme Court eventually lifts the stay.”). The Defendants then used the pressure of the expedited schedule in tandem with dilatory and obstructionist discovery tactics to conceal material evidence about the origin and true purpose of the citizenship question from coming to light.
Now, this is a lot to take in. But what it shows is that Chief Justice John Roberts blocked discovery that would have exposed the discriminatory intent of Commerce. That discovery would have further shown perjury by Commerce officials, perjury to conceal a conspiracy between Hofeller and Commerce officials to deny voting rights to American citizens and to shift costs from certain American taxpayers (typically in red districts) to taxpayers typically in blue districts. This is a massive fraud, and it was exposed well before the Supreme Court issued its ruling. The Supreme Court, had it not been participating (wittingly or unwittingly) in the fraud, could have delayed that ruling long enough for the allegations to be sorted out. But we have reason to believe that the Supreme Court was wittingly participating in the fraud because John Roberts devoted (per Maya Wiley on AM Joy today) 22 pages to instructing Commerce how they could do the citizenship question no matter how the Court ruled. Furthermore, the Supreme Court did the same thing with the Muslim Ban, laundering the animus which Trump clearly evidenced. Adam Serwer, The Atlantic:
Roberts’s logic is baffling. The chief justice argues that since it discriminates against some Muslims, rather than against every Muslim, the order is not motivated by hostility against Muslims. But the order was expressly motivated by anti-Muslim prejudice, and so it enshrines in law official disapproval of a particular religion. Like all other discriminatory policies, once implemented, it directly affects a fraction of the group it targets, while adopting official condemnation of that group. And few deliberately racist policies in American history have lacked for an explanation of why such laws were in the public interest, and many were said to be necessary for public safety.
By Roberts’s logic, cornerstones of Jim Crow law, the grandfather clause, and the literacy test would be entirely constitutional. Grandfather clauses barred people from voting if they could not vote prior to emancipation, but there were free black Americans prior to the abolition of slavery, and there were blacks capable of passing literacy tests in states where those tests were not deliberately impossible to pass. These laws did not affect all black voters, and neither did they explicitly mention race—so, to apply the tests Roberts has proposed, these devices, meant to secure white supremacy in the South after Reconstruction, were not discriminatory.
Whatever message the Court intended to send, the one that Trump and his administration will take from the ruling is that the president is free to implement any discriminatory policy he likes, so long as his advisers launder the president’s bigotries through facially neutral language.
A pattern by John Roberts of instructing the Administration in how to implement discriminatory policies is established, and Roberts has further demonstrated his ill-will by aiding the Commerce Department in committing perjury and fraud. Strong words, yes. But these are times when strong words are required.