Appellate court sends 2020 Census case back

This March 23, 2018, file photo shows an envelope containing a census letter mailed to a U.S. resident as part of the nation's only test run of the 2020 Census. (Michelle R. Smith | The Associated Press)

Another turn in the federal lawsuit related to the 2020 Census emerged Tuesday as an appeals court granted a request to remand the case back to district court, court records show.

The lawsuit, filed earlier this year by the Mexican American Legal Defense and Educational Fund, or MALDEF, on behalf of La Union del Pueblo Entero, or LUPE, Asian Americans Advancing Justice, and several others, alleges that Trump administration officials conspired to add a citizenship question to the coming census to discourage people in states with large immigrant communities from filling out the questionnaire, likely resulting in an undercount.

Prior to the lawsuit, U.S. Secretary of Commerce Wilbur Ross, who oversees the U.S. Census Bureau, announced the question’s inclusion in the decennial questionnaire last March, just days before the questionnaire was to be finalized and submitted.

Ross testified before Congress in late March of last year that he added the citizenship question at the U.S. Department of Justice’s request, but emails released as part of ongoing court challenges show that Ross was working to add the question before he received a letter from the DOJ in December 2017.

In a six-page order filed Tuesday, the U.S. Court of Appeals for the Fourth Circuit ruled that the case can go back to U.S. District Judge George J. Hazel, who presided over the trial on the citizenship question, to specifically look at whether new evidence shows that there was unconstitutional discriminatory intent behind the addition of the citizenship question in the new census.

That new evidence shows direct contact among Thomas B. Hofeller, a GOP strategist, U.S. Commerce Department officials, and Trump transition team members, about adding the citizenship question in order to shift political power in favor of white voters and away from Hispanic voters. The Census Bureau is part of the U.S. Department of Commerce.

Hazel indicated in a longer opinion issued Monday that “it is becoming difficult to avoid seeing that which is increasingly clear.”

The filing further states, “As more puzzle pieces are placed on the mat, a disturbing picture of the decision makers’ motives takes shape.”

In the opinion, Hazel stated: “The newly-discovered documents are also not barred by the rule against hearsay. Plaintiffs would not be admitting either of the key documents for their truth but rather to show the motive or intent behind the citizenship question.”

Thomas A. Saenz, MALDEF president and general counsel, said in a prepared release that the organization looks forward to presenting “our enhanced case demonstrating the unlawful nature of the late addition of the citizenship question, and to vindicating one of our most enduring and important constitutional principles.”

The census determines the amount of funding given to the respective states based on the amount of people counted. This money funds government programs for federal highways, early childhood education and children’s health insurance, to name a few, according to data provided by the National Association of Latino Elected and Appointed Officials Educational Fund, or NALEO.

In short, the MALDEF lawsuit alleged that Trump administration officials and others conspired to deprive immigrants of color of their constitutional rights to equal representation and to fair allocation of federal funds by adding a citizenship question to the census, which could potentially lead to the aforementioned group from participating in the count.

Co-conspirators named in the suit are Donald J. Trump, Ross, Stephen Bannon, who served at the time as White House advisor, and Kris Kobach, who then served as Kansas secretary of state, documents show.

The ruling from the appellate court Tuesday comes more than two months after Hazel ruled in favor of the plaintiffs, concluding that adding a citizenship question to the 2020 Census would be unconstitutional.

Hazel, who at that time was the third U.S. district judge to rule in favor of the plaintiffs, in a nearly 120-page opinion stated that the inclusion of the question would be unlawful.

“ Specifically, although Secretary Ross may be able to cure the plethora of APA violations, the record reflects that the inclusion of a citizenship question would still undermine the census’ primary constitutional purpose by unreasonably distorting the accuracy of ‘an actual enumeration,’” the court document stated. “Finally, as the New York and California courts concluded, the injunctive relief requested here could not practically be limited to only one geographic area or certain litigants. The citizenship question will either be included or barred from the 2020 Census on a nationwide basis.”

But MALDEF officials said Hazel stopped short of granting theirs and the other plaintiffs’ claims that the administration’s intention in adding the question was to discriminate against non-citizens and communities of color in the decennial Census, in violation of the Equal Protection Clause of the Fifth Amendment, and that members of the administration conspired to deprive racial minorities of their constitutional right to equal representation.

MALDEF appealed that element to the Fourth Circuit on April 14, challenging Hazel’s decision on the question of whether the motive for adding the citizenship question was unconstitutionally discriminatory.

Prior to Hazel’s ruling on April 5, U.S. District Judge Jesse M. Furman of New York ruled on Jan. 15 that the attempt to add the question was “unlawful,” and ordered it removed from the questionnaire.

Local county officials, who are part of the lawsuit, continue to promote the census because of how crucial a complete count is to the region.

MALDEF officials said as the citizenship question issue moves toward the Supreme Court, Congress can still act by enacting legislation to remove the citizenship question.

The Supreme Court is expected to consider this week whether the administration can add the citizenship question to the 2020 questionnaire, but are not reviewing the element before Hazel regarding the question’s discriminatory nature.

Counsel for MALDEF said an undercount of Latinos in the coming census would disproportionately impact immigrant communities throughout the country.

The government has argued that the 2020 Census forms must be printed by June 30. However, other officials have disputed that date, indicating an October deadline.

lzazueta@themonitor.com