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ACLU notifies US Supreme Court of new evidence in citizenship question case

The ACLU informed the U.S. Supreme Court on Thursday that new evidence about deceased mapmaker Tom Hofeller’s involvement in creating the 2020 Census citizenship question ran contrary to the Trump administration’s testimony in a recent hearing.

The high court is set to rule later this month on the legality of the Census question. The new evidence arose after Hofeller’s death, when his daughter Stephanie Hofeller Lizon turned over his hard drives and other digital files to the plaintiffs in Common Cause v. Lewis, a North Carolina partisan gerrymandering case making its way through state court.

The ACLU’s letter states that a district court hearing in the matter is set for June 5, but it wanted to let the high court know it asked for an order to show cause whether sanctions or other appropriate relief are warranted in light of the new evidence.

“The new evidence reveals that Dr. Thomas Hofeller, a longtime redistricting specialist, played a significant role in orchestrating the addition of the citizenship question to the 2020 Decennial Census in order to create a structural electoral advantage for, in his own words, ‘Republicans and Non-Hispanic Whites,’ and that Petitioners obscured his role through affirmative misrepresentations,” the letter states.

It’s not exactly clear if the new evidence can or will have an impact on the Supreme Court’s decision, but Election law expert Rick Hasen, Professor of Law and Political Science at UC Irvine, has speculated it won’t change the conservative votes on the court.

“Those justices, who are usually hostile to the Voting Rights Act, took at face value the government’s assertion that the question was necessary to protect Hispanic voters, despite uncontradicted evidence that voting rights advocates don’t need the census data to defend their cases and despite the Trump administration not bringing a single Voting Rights Act Section 2 case defending Hispanic voters,” Hasen wrote for Slate. “They pointed to foreign practices despite an aversion to citing other countries’ cases in opinions. Most disingenuously, some of the conservative justices rejected the uncontradicted scientific evidence—some offered by those working for the Census Bureau itself—that adding the question will depress turnout, especially among Hispanics.

These justices signaled that they were willing to defer to agency decision-making even when they have questioned such deference in other contexts. Never mind Ross’ real reason for including the citizenship question if Congress gives him broad discretion over how to craft the questionnaire.”

Hasen also discussed timing on Twitter — Census forms need to be printed in July, and the Supreme Court doesn’t typically consider evidence that’s not in the district court record.

“It doesn’t usually take evidence,” he tweeted about the court. “But this case is already unusual given the press of time. There was no opinion (as there usually would be) between the district court opinion and [the Supreme Court from second circuit]. If there WERE time, the Court could dismiss the case and send it back for more fact-finding in the district court, upon a motion from the plaintiffs. It would then consider whether to take the case again. But there’s no time for this.”

He tweeted that he was hard-pressed to think of another situation in which newly-discovered evidence would bear directly on an issue before the court with no time to remand the case back to a lower court.

An inaccurate Census county would have significant consequences not only because the data is used in drawing electoral districts but it also puts hundreds of millions of federal dollars at risk that are allocated based on the same data.

A spokesperson from the Justice Department has denied to media the accusations of Hofeller’s involvement in the developing to Census citizenship question. In one statement reported by the Associated Press, the Justice Department said “these eleventh-hour allegations by the plaintiffs, including an accusation of dishonesty against a senior Department of Justice official, are false.”

“That study played no role in the Department’s December 2017 request to reinstate a citizenship question to the 2020 decennial census,” it said. “The Department looks forward to responding in greater detail to these baseless accusations in its filing on Monday.”

In the meantime, members of Congress and North Carolina officials are starting to weigh in on social media:

This is a case that North Carolina and the rest of the country appears to be keeping a close eye on.

In a sort-of unrelated hearing Thursday — attorneys in Common Cause v. Lewis participated in a teleconference to sort out some discovery issues. The Republican Party was asked by the plaintiffs to respond to a subpoena and they only did so today, at least a month after the deadline.

The Democratic Party was asked by the legislative defendants to turn over support scores. The Party refused and told a three-judge panel Thursday they didn’t think that information was pertinent to the case. The defendants argued the information was probative and necessary and they were entitled to it.

The panel took all matters under advisement to make a decision at a later time.

The trial in that case is set to begin July 15. There is a hearing in the district court level citizenship question case set for June 5. Read the ACLU letter here.

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