The Justice Department is throwing everything it can into stopping courts from considering newly obtained evidence, from the files of a now-deceased GOP consultant, to assess the legality of a census citizenship question.
On Tuesday, the Department was arguing before U.S. District Judge George Hazel in Maryland as he weighs whether to take another stab at deciding whether the move to add the question was discriminatory, given the new evidence.
DOJ lawyer Josh Gardner zeroed in on a secret study the consultant, Thomas Hofeller, did in 2015 analyzing the effect of drawing districts based on the number of citizens rather than total population. The study said doing so would boost Republicans and non-Hispanic Whites, to the detriment of Democrats and Latinos. It also concluded that such an overhaul would be unworkable without a citizenship question on the census, leading the challengers in the case to argue the study showed that Hofeller had a discriminatory intent in advocating for the Trump administration to add the question to the 2020 census.
On Tuesday, Gardner denied that the study showed that Hofeller had any sort of racial animus in allegedly helping the Trump administration add the question. (A transition official testified that Hofeller was the first to bring up the citizenship question issue with the administration.) The Justice Department claimed in filings Hofeller’s study was nothing more than a “simple empirical research project.”
But Gardner on Tuesday went even further that, and argued that Hofeller was in fact “critiquing” the idea of overhauling redistricting to draw districts using a citizen-based metric (known as Citizen Voting Age Population, or “CVAP”).
To do so, Gardner pointed to another line in Hofeller’s study that expressed skepticism that the Supreme Court would back such a change.
A close look at the line in question, however, shows that what Hofeller was actually expressing skepticism about was whether the Supreme Court would mandate a citizenship question on the census. Hazel quickly pointed out Hofeller’s use of the word “mandate.”
To understand the 2015 study, and what it does and doesn’t say about Hofeller’s beliefs about a census citizenship question, it’s important to understand the context during which it was created.
Hofeller was commissioned by GOP mega donor Paul Singer — described in emails now being put forward in the litigation as the “principal” of the conservative publication the Washington Free Beacon, which Singer funds — to study the effect of switching to a CVAP-based redistricting model. At the time, conservative legal advocates were spearheading a case, known as Evenwel, seeking that states be required to use CVAP, rather than total population, to draw districts. Singer was weighing whether to throw his financial backing behind the lawsuit, hence his request that Hofeller study its implications.
Hofeller found, as others had, that the overhaul would help Republicans. But he also concluded, as foes of Evenwel had argued, that there wasn’t currently accurate enough citizenship data, for the purposes of redistricting, being produced by the Census Bureau, which uses a smaller scale survey to produce citizenship data for various uses.
“All this leads to a possible conclusion that without a congressional mandate for the United States Census Bureau to add a citizenship question to the 2020 Decennial Census form, or such a mandate from the Supreme Court, the relief sought in the Evenwel case is functionally unworkable,” Hofeller said.
He later noted his skepticism that the Court would ever issue such a mandate to add the a question. Notably, his skepticism appeared to be rooted in the specific context of the Evenwel case. He noted, first, that the Obama administration was in power, and was likely “extremely hostile” to adding such a question, and, second, that the Supreme Court would then thus have to force the Census Bureau to add a question.
That context had obviously, drastically changed, when, after the 2016 election, Hofeller himself was suggesting that the Trump transition look into adding the question. It was an incoming Republican administration that would be overseeing the decennial census — and, it turns out, it was an administration that had no issue ignoring long-held testing protocols and blowing off the advice of career experts to add the question. And the Supreme Court is not asking, nor will it likely be asked, to mandate a citizenship question — or to require states to use CVAP data. Instead what is likely to happen — and what the Commerce Department’s own official laid out — is that some other political actor (a state, a locality or perhaps even Congress or the President) will then seek to use the data collected through the Census for redistricting. And then the Supreme Court will be asked to decide whether they’re allowed to do so.
And despite what the Justice Department claimed in court yesterday, there is no evidence that Hofeller, who died last year, had skepticism about what the Supreme Court would do in that scenario.