Why Trump will likely lose the census citizenship fight

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President Donald Trump

President Donald Trump’s continued insistence on adding the citizenship question increases the risk of additional disclosures about the White House’s role in the effort. | AP Photo/Alex Brandon

2020 Census

The new DOJ team must find a rationale that the high court will rule consistent with regulatory law and also believable.

President Donald Trump’s fight to add a citizenship question to the 2020 census is one he seems likely to lose.

Eleven days after an unfavorable Supreme Court ruling, a new team ofJustice Department attorneys must persuade three district court judges that a June 30 printing deadline a previous DOJ legal team insisted had to be met no longer applies — even though, the Commerce Department said last week, the questionnaires are being printed already.

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To pass muster with the Supreme Court, the new DOJ team must find a rationale that the high court will rule consistent with regulatory law and also believable — a tough assignment given that the court said in its ruling that the previous rationale was not.

“I think over the next day or two you’ll see what approach we’re taking, and I think it does provide a pathway for getting the question on the Census,” Attorney General William Barr told reporters Monday.

But that effort has been undermined repeatedly by Trump, who last week appeared to concede that his purpose was political. “Number one, you need it for Congress, you need it for Congress, for districting,” he said last week. “You need it for appropriations — where are the funds going? How many people are there? Are they citizens or are they not citizens?” (Districting and appropriations decisions are in fact based on the census’s raw population numbers, not on any citizen count.)

“It just feels like a farce,” said Vanita Gupta, a former head of DOJ’s civil rights division under President Barack Obama and current president of the Leadership Conference on Civil and Human Rights, which opposes adding the citizenship question. “There are people who view this as the president asking the Justice Department to do unlawful things and to violate and undermine the rule of law.”

The idea that judges will agree to ignore existing evidence in the case, Gupta said, “seems absurd.”

Trump’s continued insistence on adding the citizenship question increases the risk of additional disclosures about the White House’s role in the effort.

On Friday one of the three district court judges, Maryland-based U.S. District Judge George Hazel, ordered the start of discovery, a chance for both parties to seek out related evidence in the case.

Civil rights groups say they plan to use that opportunity to pry into communications between the White House and the Commerce Department and Justice Department officials involved in ordering the new query. They may also seek more details on Trump’s own involvement. That will likely trigger renewed legal battles over executive privilege and the confidentiality of White House interactions.

The district court judges will need to be convinced that whatever new rationale the DOJ lawyers produce for adding the census question isn’t undermined by earlier evidence that, among other things, suggested a deceased Republican redistricting strategist, Thomas Hofeller, sought to ask about citizenship to create an electoral advantage for Republicans and non-Hispanic whites.

Hazel previously ruled that only Commerce Secretary Wilbur Ross’s intent was relevant to the legal issues in the case. But with the litigation now focused on issues of intentional discrimination and a conspiracy to deprive Latinos of their civil rights, the plaintiffs are planning a broader effort to turn up evidence that could be problematic for the administration.

“A civil conspiracy claim is what makes the intent of a larger number of people relevant,“ said Denise Hulett of the Mexican American Legal Defense and Education Fund, which represents plaintiffs in the two related cases before Hazel. “We think that’s going to come into play even more than it did before because it’s clear a large group of people were involved in the decision.”

Another lawyer for the plaintiffs said some document demands and deposition subpoenas that were taken off the table during the last rounds of litigation may now be in play again. “We know we didn’t get certain things before and they may now be subject to being revisited,” said Niyati Shah of Asian Americans Advancing Justice.

One of the plaintiffs’ new targets in discovery will be Trump aides who may have been involved in the decision to add a citizenship question.

“It’s been our contention throughout that the White House was directly involved,” Hulett said, “facilitating connections between Ross and whoever they needed to connect him with.”

Hulett noted that just after Ross announced his decision to add the question, Trump’s reelection campaign sent out an email saying the move was the president’s idea.

“The president wants the 2020 United States Census to ask people whether or not they are citizens,” the March 19, 2018, email said.

The civil rights groups’ efforts to obtain more behind-the-scenes details seem certain to trigger further legal battles. “We anticipate resistance,” Hulett said. “Executive privilege is always difficult to overcome, but it’s not sacrosanct.”

Any attempt to add a citizenship question at this point also could run into trouble with logistics and cost.

Trump said Friday the administration had considered “four or five ways” to ask about citizenship on the census, including printing an addendum to the standard questionnaire. But an addendum could cause its own problems, according to John Thompson, a former Census director who spent more than three decades with the bureau and resigned in May 2017.

“I think that’s probably a recipe for disaster,” he said. “It hasn’t been tested, and it will most likely cause confusion and errors.”

The bureau would likely need to send an addendum in a separate mailing — a significant undertaking considering that the Census Bureau seeks to reach 330 million people in more than 140 million households.

The 2020 census will be the first to feature a digital questionnaire, and the Census Bureau has said it will encourage the majority of households to complete the survey that way. Any change to the digital questionnaire would be easier technologically than adding a printed form, but it would still require approval from the Office of Management and Budget and could run afoul of existing court orders.

Another stumbling block could be the sudden move to assign new attorneys to the census case, according to Andrew Reamer, a research professor with George Washington University’s Institute for Public Policy, who’s been tracking the census legal battle.

DOJ announced the new group of lawyers Sunday, but did not offer a reason for the change.

“They just lost their legal staff on this, the guys who have been dealing with this for a year,” he said. “Now they’re stuck with a whole bunch of lawyers from the consumer protection branch.”

Still, he said the change of personnel reflects a broader difficulty in arguing the Trump administration’s position in court.

“I think the staff would have been in personal jeopardy if they had to go forward and argue that June 30 didn’t matter anymore,” he said. “It would have been a professional stain on their careers.”

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