The Census Case Is Shaping Up to Be the Biggest Travesty Since Bush v. Gore

John Roberts, viewed in profile, looking upward.
John Roberts legacy and that of his court are at a critical juncture. Jabin Botsford - Pool/Getty Images

The government’s conduct in the pending Supreme Court case about adding a citizenship question to the census has gone from indefensible to outrageous. In the case, which is likely to be decided this week, Solicitor General Noel Francisco on Tuesday asked the Supreme Court to become complicit in a cover-up of discriminatory activity by doing something the court does not and cannot do: decide a legal issue that is not before it. If the court does so, any pretense of the legitimacy of the decision will be gone.

Here’s the relevant background. At the urging of Republican apparatchiks like Kris Kobach and Steve Bannon, Commerce Secretary Wilbur Ross looked for a way to add a citizenship question to the United States census. After a lot of cajoling, he finally got the United States Department of Justice to say that it wanted the question added to help it enforce the Voting Rights Act’s protections for Hispanic voters. He faced lawsuits throughout the country for adding the question.

The lawsuits raise different questions and the one currently before the Supreme Court asks whether Ross’ decision to include the question was “arbitrary and capricious” in violation of the Administrative Procedure Act. Plaintiffs could not put forward direct evidence of Ross’ state of mind because the Supreme Court blocked Ross’ deposition. But the trial court decided the case on the administrative record and found that, whatever Ross’ actual motive, the claim that Ross did it to help Hispanic voters under the Voting Rights Act was a pretext and not the actual motivation, and thus the question should be excluded.

The story of Ross’ actual motivation turns out to be much worse. Recently released documents coming from the hard drive of the late Republican redistricting operative Thomas Hofeller indicate that the intention behind the inclusion of the question was to give Republican state legislatures a chance to draw districts that—by excluding a large number of noncitizens from the census count used to determine the number and location of districts in each state—would help Republicans gain more seats and minimize the power of Hispanic voters. One such Hofeller memo explicitly said the question would offer “a disadvantage to the Democrats” and be “advantageous to Republicans and non-Hispanic Whites.” Uncontradicted evidence from census department researchers, meanwhile, revealed that the question is likely to suppress the response rate of households containing noncitizens, which would lead to an undercount in places containing more Democrats. To Ross and his compatriots Kobach and Bannon, this would surely be a feature and not a bug.

The Hofeller documents have led to a lot of skirmishing between the parties, and not only in the Supreme Court. Just Tuesday, the 4th U.S. Circuit Court of Appeals agreed to send its own census case—which is not currently before the Supreme Court—back down to the trial court to consider whether the Hofeller evidence is good proof that the government included the census question for a racially discriminatory purpose in violation of the Constitution’s equal protection guarantee. If the government acted out of a racially discriminatory purpose, then the citizenship question must be excluded from the census, even if the government could have included the question for facially legitimate reasons.

To be absolutely clear, the equal protection claim is not currently before the Supreme Court in the case it is about to decide. Nonetheless, in two last minute filings with the Supreme Court, Francisco has asked the court to decide the question: “The Fourth Circuit’s order underscores the need for this Court to address the equal-protection claim and the immateriality of the Hofeller files in its disposition of the above-captioned case so that the lawfulness of the Secretary’s decision can be fully and finally resolved.”

This is outrageous. The issue has not been fully briefed. It was not the subject of oral argument. It involves evidence for which there has been no fact-finding. For the Supreme Court to decide the issue on this basis is the definition of lawlessness. It is not how the Supreme Court normally does business, and the solicitor general should know better. If the court starts doing this, it becomes no more than a branch of the Trump administration.

The government claims the printing deadline is imminent, but the 4th Circuit found that the printing can actually wait until October. This issue deserves full and fair vetting. The Supreme Court can deal with any injunction from the district court or the 4th Circuit in later filings after the trial court finds all the facts about possible discriminatory intent from the Hofeller evidence.

Indeed, in another case of similar political import, a Supreme Court majority declared the following: “The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees.” That case was Bush v. Gore, the case ending the disputed 2000 presidential election and handing the election to Republican George W. Bush over Democrat Al Gore. There, the justices of the Supreme Court let politics get in the way of a fair decision. It looks like history may be about to repeat itself.