Warming up for the next round of the fight over adding a citizenship question on the 2020 census after setbacks in the courts, the Trump administration’s latest effort faces numerous hurdles in court that could spill out into Congress’ annual spending talks.
The administration has been coy about how it will try to relitigate the question, and Attorney General William Barr told reporters Monday the “pathway” to reinstate it may be unveiled later this week.
But any move in court could quickly put the government in a bind, Georgetown Law professor and former Justice Department attorney Marty Lederman said. The government has blown past an oft-repeated June 30 deadline and must quickly come up with a new rationale after the Supreme Court called its first a “pretext.”
“Now the idea that [Commerce Secretary Wilbur Ross] is going to rely on a genuine reason now that he never considered before and not the reasons that he did act before, that’s surely unusual,” Lederman said.
The Supreme Court decision last month rejected the administration’s initial Voting Rights Act enforcement rationale as pretextual and sent it back to the agency. Lederman and others said the next step may take a few forms: an executive order adding the question directly, an order directing Ross to add it, or Ross producing a new rationale for the question on his own.
Additionally, the government repeatedly told courts that it needed a decision by June 30, or it would need additional funds, Lederman noted. “The first [hurdle] is where do they get the resources to do this and the second hurdle is coming up with a rationale that is sufficient,” he said.
Forms are being printed without the citizenship question, and with the massive undertaking underway, it will be hard to turn around, according to former Census Bureau directors. The government’s printing contractor RR Donnelley is responsible for producing more than 1.5 billion documents tied to the census under a $114 million contract.
The Justice Department, in a Supreme Court brief, relied on testimony from a Census Bureau official to argue that a delay until October, when the next Supreme Court term begins, would be feasible only with “exceptional effort and additional resources.” It was one of several times the DOJ told courts that the deadline had to be June.
That number is not yet known, as bureau and other government officials have not estimated how much such a delay might cost.
The administration has a murky path through the courts, though, and the challengers have promised any steps forward will be met with legal opposition.
Even the administration’s attempt to substitute the longtime attorneys handling the case has hit a speed bump. A federal judge in the New York challenge to the question denied that request Tuesday, calling the attempt “patently deficient” and ordering the government to provide assurances future changes won’t disrupt the case.
The litigants in New York also have a pending sanctions motion against the government for its conduct in the case and a request for a permanent injunction, citing evidence that a late Republican redistricting strategist served as the source of the question.
In Maryland, U.S. District Judge George Hazel ordered discovery on claims the question was discriminatory last week, with the process set to wrap up over the summer.
Dale Ho, director of the ACLU’s Voting Rights Project and one of the challengers in New York, said the court fight is nearly over. Any of those lines of litigation could result in a ruling against the administration, Ho said, resulting in another appeal to the Supreme Court on an interim basis.
“When you think about those timelines, there is not enough time to get through to the Supreme Court, with briefing and oral arguments and a decision” before the fall, Ho said.
Even if the administration wins in court, it’s likely to need additional funding on the census to add the citizenship question — and figure out a way around opposition from Democrats.
New York Democrat José E. Serrano, who chairs the House Commerce-Justice-Science Appropriations Subcommittee, which oversees spending for the census, said in a statement Tuesday he would not back the “flagrant waste of money” to reprint census forms adding the question.
The House has already passed a ban on the citizenship question as part of a fiscal 2020 $8.45 billion funding allocation for the Census Bureau. The Senate has not taken up its own Commerce-Justice-Science spending bill yet, as senators are waiting to reach a broader spending agreement before starting markups on annual appropriations bills.
Senate Appropriations Chairman Richard C. Shelby said any discussion of additional census funds would have to come later in negotiations. The Alabama Republican did not say whether he would support adding the citizenship question.
New Hampshire Sen. Jeanne Shaheen, the ranking Democrat on the Senate Commerce-Justice-Science Appropriations Subcommittee, pointed out that Democrats opposed to the question don’t control all the levers in Congress.
“I oppose putting the citizenship question on the census, but I think we have a different dynamic in the Senate that makes it harder to get done here,” Shaheen said. “I’d certainly like to try.”
Todd Ruger contributed to this report.
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