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DOJ Lawyers on Census Case Had Until 2 P.M. to Respond to Judge’s Demand. This Is What They Came Up With.


We already knew Department of Justice attorneys would be filing something by 2 p.m. on Friday because a federal judge demanded that they do so. The filing that resulted was supposed to either say that a citizenship question would not appear on the 2020 Census or that the parties had a “proposed scheduling order for how we’re going forward on the equal protection claim” that was “remanded to this court.”

The DOJ response did not say there would be no citizenship question on the census, but it did say the DOJ, despite opposing the case moving forward, had no objection to the plaintiffs’ “proposed discovery schedule.”

The main takeaway here is that the DOJ in no way provided a window into a new rationale for adding the contested question to the census, despite reports that President Donald Trump is considering an executive order and despite Trump’s Friday claim that “We have four or five ways we could do it.”

The relevant lines from the four-page filing were as follows.

1) Citing Trump travel ban and transgender troop ban cases, DOJ said a new citizenship question rationale would constitute a new Commerce Department action.

Any new decision by the Department of Commerce on remand providing a new rationale for reinstating a citizenship question on the census will constitute a new final agency action, and Plaintiffs will be fully entitled to challenge that decision at that time. See, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2403-2406 (2018) (discussing multiple iterations of Executive Order, each of which was separately challenged, and ultimately limiting judicial review to the operative version of the Executive Order); Karnoski v. Trump, No. 18-cv-35347, 2019 WL 2479442 (9th Cir. June 14, 2019) (holding that it was error for the district court to summarily deny a motion to dissolve a preliminary injunction where there had been changed circumstances in the form of a new policy).

2) Plaintiffs shouldn’t be allowed to proceed to discovery right away; DOJ/Commerce still evaluating path forward [emphasis ours].

Here, no amount of discovery will change the fact that the March 2018 decision that was the subject of Plaintiffs’ lawsuit has been vacated and the matter remanded to the agency. The Departments of Justice (DOJ) and Commerce have been asked to reevaluate all available options following the Supreme Court’s decision and whether the Supreme Court’s decision would allow for a new decision to include the citizenship question on the 2020 Decennial Census. In the event the Commerce Department adopts a new rationale for including the citizenship question on the 2020 Decennial Census consistent with the decisions of the Supreme Court, the Government will immediately notify this Court so that it can determine whether there is any need for further proceedings or relief. But proceeding to discovery now in connection with a new decision that has not yet been made would be premature. It would also be extremely inefficient. See Fed. R. Civ. P. 1. Whenever any new decision is made, Plaintiffs presumably would seek discovery on that new decision rather than the old one. Because the status quo currently fully protects the Plaintiffs, there is no justification for proceeding immediately with discovery. Accordingly, Plaintiffs’ Rule 60 motion is moot, discovery in service of that motion is inappropriate, and the final judgment in this case should remain in effect.

3) The DOJ opposes discovery regarding Hofeller evidence, but is okay right now with the proposed discovery schedule if that’s what has to happen.

Although Defendants oppose discovery commencing at this time for the above stated reasons, if discovery does go forward, Defendants do not object to Plaintiffs’ proposed discovery schedule. As the government explained during the July 3, 2019 status conference and as noted above, the Departments of Commerce and Justice have been instructed to examine whether there is a path forward, consistent with the Supreme Court’s decision, that would allow for the inclusion of the citizenship question on the census. Dkt. 612-1, at 10:21-25. “[I]f a viable path forward is found, DOJ’s current plan would be to file a motion in the Supreme Court to request instructions on remand to govern further proceedings in order to simply and expedite the remaining litigation and provide clarity to the process going forward.” Id. at 11:3-9. Accordingly, although it is difficult to determine how such developments may affect any discovery schedule entered in this case, should the Court enter a discovery schedule now, Defendants may seek to revise the discovery schedule in the future as circumstances warrant.

U.S. District Judge George Hazel responded by letter order, saying that he disagreed with the logic of the DOJ regarding discovery “based on the unique circumstances of the case.”

“[I]n accordance with the Order being issued today, discovery shall commence,” the judge said. “Although informal, this is an ORDER of the Court.”

As Law&Crime noted before, challengers of the census question filed documents on June 14 in Judge Hazel’s court, claiming that new documents from the estate of recently deceased Republican operative Thomas Hofeller showed that Hofeller specifically orchestrated the addition of the citizenship census question to achieve certain advantages. Hofeller notoriously specialized in gerrymandering maps to ensure Republican advantages.

“These newly discovered documents…eliminate any colorable doubt about the link between Hofeller and government employees involved in the citizenship question approval process,” the plaintiffs argued.

While the DOJ has dismissed this evidence as a part of an eleventh-hour conspiracy theory, Hazel agreed that the Hofeller evidence “potentially connects the dots between a discriminatory purpose–diluting Hispanics’ political power–and Secretary [Wilbur] Ross’s decision.”

Hazel blocked the citizenship question in April, saying the question was “arbitrary and capricious”; he was the third judge to block the question:

For the following reasons, the Court concludes: Plaintiffs have standing to assert their claims; the decision to add a citizenship question to the 2020 Census was arbitrary and capricious in violation of the APA; the Defendants’ actions violate the Constitution by unreasonably compromising the distributive accuracy of the Census contrary to the Enumeration Clause’s mandate; and Plaintiffs did not meet their burden to prove Defendants’ actions violate the Due Process Clause or amount to a conspiracy to violate civil rights because Plaintiffs failed to show that the addition of the citizenship question was motivated by invidious racial discrimination.

Note that, at the time, Hazel said the plaintiffs did not prove the question was “motivated by invidious racial discrimination.” This was before the Hofeller evidence was brought to his or anyone’s attention. The Friday discussion about discovery is related to an equal protection claim connected to the surfacing of this evidence.

Some appeared to be astonished by the DOJ’s Friday response.

DOJ response re: citizenship question by Law&Crime on Scribd

[Image via Chip Somodevilla/Getty Images]

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Matt Naham is the Senior A.M. Editor of Law&Crime.