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Why Wednesday’s Hearing Was A Mixed Bag For Census Citizenship Question Challengers

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June 5, 2019 5:50 p.m.

The run-up to Wednesday’s hearing to address misconduct allegations against a Justice Department official and a Trump transition staffer in the census citizenship question case lasted longer than the hearing itself.

After an hour of dozens, maybe hundreds, of people slowly filing into Courtroom 318 in Thurgood Marshall Courthouse in Manhattan — after a stenographer collected counsels’ business cards, reporters rustled, lawyers schmoozed — the whole thing lasted just a few minutes. All rose at 3:02 p.m. ET, the judge left around 3:16 p.m.

Still, challengers got some of what they wanted, including an indication from U.S. District Judge Jesse Furman that he considered their allegations to be serious and worthy of further briefing. But Furman wasn’t rushing things. Instead of hearing arguments Wednesday for why the government should have to turn over documents related to the accusations, the judge told challengers to file a more formal motion for sanctions by July 12.

Challengers in the case, including the New York Immigrant Coalition and the ACLU, have alleged that a DOJ lawyer and another government witness, a Trump transition team official, covered up the extent to which the work of a deceased GOP redistricting expert, Thomas Hofeller, formed the legal foundation of Commerce Secretary Wilbur Ross’ attempt to get a census question on the citizenship. Hofeller wrote in 2015 that using potential citizenship data from the census to draw congressional districts would help Republicans and “non-Hispanic whites” and hurt Democrats.

The Justice Department called the allegations “frivolous” and conspiratorial.

Despite appearing ready to argue their case on Wednesday, challengers put on a brave face after fitting in just a few sentences of oral argument.

“We were prepared to move quickly if he wanted to,” John Freedman of the New York Immigration Coalition told a small clutch of reporters in the courtroom after the judge ended the hearing. He said the challengers would be “filing our brief seeking sanctions.”

The ACLU’s Dale Ho, in many ways the face of the census citizenship question opposition, was asked if he was disappointed with the day’s events.

“It’s just a schedule,” he replied, referring to the judge’s deadline for a formal sanctions motion. Translation: We’re fine.

One lawyer not authorized to speak publicly noted that the judge wasn’t “dropping it — he’s taking it seriously.” The lawyer implied it was understandable that Furman wouldn’t want the sanctions issue casting a shadow over the Supreme Court’s deliberations. 

That court is set to decide on the actual issue of adding a citizenship question to the census any day now. It heard arguments in April after Furman and two other federal judges separately ruled against the Trump administration’s efforts.

Ho, speaking outside the courthouse later, said of the challengers’ call for sanctions: “The fact-finding process takes time. I don’t think it would have been in anyone’s interest for this to be rushed. We need to know exactly what happened.”

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