The Department of Justice revealed on Friday that it’s still searching for a new justification for a census citizenship question that might pass legal muster. And while it rummages around for that rationale, the DOJ asked a federal judge to delay discovery into the allegedly discriminatory motives that produced the citizenship question, a request he promptly denied. Meanwhile, Donald Trump revealed his actual reason for wanting a citizenship question on the census—and it contradicts statements his own solicitor general made to the Supreme Court.
Welcome to the ongoing clown show of census 2020.
Friday’s DOJ filing was expected to provide a new reason for the citizenship question, after SCOTUS ruled that its previous rationale was bogus. (Secretary of Commerce Wilbur Ross, who oversees the census, said the question was necessary to better enforce the Voting Rights Act, a claim that does not make sense and is contradicted by the record.) Trump ordered administration officials to devise this new pretext just one day after they told a court they had dropped their quest for the citizenship question.
That about-face created difficulties in the ongoing case before U.S. District Judge George Hazel. The Supreme Court blocked the citizenship question because it was illegally supported by pure pretext, not because it was discriminatory. In June, however, plaintiffs uncovered new evidence that seemed to indicate the purpose of the question was to diminish Hispanics’ voting power. In light of these materials, Hazel reopened discovery in the case to let plaintiffs pursue their equal protection claim, a decision affirmed by the 4th U.S. Circuit Court of Appeals.
Had the Trump administration simply dropped the citizenship question, this case would be moot. But Trump has refused to give up on the question, so this case should, in theory, move forward, with discovery commencing as soon as possible.
On Friday, though, DOJ attorneys asked Hazel to pause discovery while they develop a different justification for the citizenship question. They argued that, by “providing a new rationale,” they will have magically cleansed the question of any discriminatory intent. For support, they cited Trump v. Hawaii, in which the Supreme Court held that any prejudiced motives undergirding Trump’s initial travel ban had been washed away by its third iteration. The DOJ, in other words, believes that Trump v. Hawaii prohibits courts from examining illegal motives behind the original citizenship question once it issues a new rationale for that question.
Hazel did not agree, rejecting the DOJ’s request on Friday in an order allowing discovery to move forward. And for good reason.* It would be much more difficult to engage in animus-laundering here, where the administration’s first justification for the citizenship question has already been shot down. Trump officials are now openly contriving a new rationale, beginning with their conclusion and working backward to find some pretext that SCOTUS might accept. The administration must uproot the entire legal structure upon which the citizenship question stands—unlike in the travel ban case, where the stated purpose (national security) was always the same. Any animus attached to rationale No. 1 will surely taint rationale No. 2 when both are fruit of the same poisonous tree.
It is also pretty shocking to see the DOJ take its time in crafting a new pretext when it repeatedly told the Supreme Court that it had to finalize the census forms by June 30. The administration used this deadline to leapfrog over the court of appeals and get a swift Supreme Court ruling. Now that urgency has vanished, creating the inescapable impression that the DOJ lied to SCOTUS about its alleged timeline in a game of chicken that it unexpectedly lost. (The government is already printing census forms without a citizenship question, so any alteration at this late date will cost a huge sum of money.)
Finally, the Justice Department is not being helped by Trump, who acknowledged on Friday that the “number one” reason for a citizenship question is “for districting.” Presumably, Trump means that he wants to let states draw districts by counting only citizens of voting age, not all persons—a scheme that would dramatically boost white voting power. (It has been neither permitted or prohibited by SCOTUS.) That’s a troubling concession, because Solicitor General Noel Francisco told the Supreme Court that using citizenship data for redistricting was not the purpose of the census citizenship question. Once again, Trump is telling a very different story from the narrative carefully crafted by DOJ attorneys.
None of these shenanigans will please Chief Justice John Roberts, who wrote the opinion blocking the citizenship question on the first go-round. With every reversal and misrepresentation, the Trump administration is making it more difficult for Roberts to uphold the question under a new rationale. The DOJ will eventually contrive a new pretext that will likely get laughed out of court. It is destroying its own credibility to pursue what has become a feeble and humiliating vanity project for the president.
Update, July 5, 2019, at 3:48 p.m.: This article has been updated to note that Hazel allowed discovery to move forward.