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Federal appeals court orders more fact-finding on Trump administration's plan to add census citizenship question  3 Weeks ago

Source:   USA Today  

WASHINGTON – A federal appeals court Tuesday ordered new fact-finding into possible discriminatory motives for the Trump administration's plan to add a citizenship question to the 2020 census.

The action represents the latest potential setback for the administration following the discovery of documents indicating that the citizenship question could hurt Democrats and Hispanics by reducing their headcount in the census.

But the order by the U.S. Court of Appeals for the Fourth Circuit, based in Richmond, Virginia may have little or no effect on the Supreme Court, which is due to rule on the census question within the next three days. The high court's conservatives sounded supportive during oral argument in April.

The high court is on the verge of deciding whether Commerce Secretary Wilbur Ross had legitimate reasons for requesting the citizenship question, which the Census Bureau has said would slash response rates from households with noncitizens. That in turn would impact the distribution of congressional seats and federal dollars for the coming decade.

Most of the federal district and appeals courts to rule on the dispute thus far have questioned the administration's motive, but none has been able to show that it involved racial discrimination against minorities or noncitizens. 

In recent weeks, however, the New York Immigration Coalition, represented by the American Civil Liberties Union, has claimed that evidence found in the files of a deceased Republican expert on redistricting shows that administration officials knew the citizenship question would depress Hispanic response rates in the census. That could help Republicans when new maps are drawn in states with heavy noncitizen populations, such as California and New York. 

The federal appeals court panel ruled 2-1 Tuesday that federal District Judge George Hazel should reopen the Maryland challenge to the citizenship question in order to consider the new documents. 

One of the judges, James Wynn, went so far as to suggest that Hazel block the Commerce Department from printing 2020 census forms next week, as officials have said they must do to prepare for next year. Census Bureau officials have also said they could wait until October, which would give courts – including the Supreme Court – time for additional fact-finding.

"Even in the absence of direct evidence of invidious discriminatory intent, this court and other courts have found such intent when, for example, a governmental decisionmaker was aware that an action was likely to disproportionately impact a minority group, the decisionmaker declined to impose ameliorative measures to minimize the likely disproportionate impact, the decisionmaker’s process for deciding to take the action deviated from standard practice, and the decisionmaker provided pretextual reasons for taking the action," Wynn said.

U.S. Solicitor General Noel Francisco told the Supreme Court justices in a letter Monday that any additional fact-finding by Judge Hazel would be useless because "it is based on a speculative conspiracy theory that is unsupported by the evidence and legally irrelevant to demonstrating that Secretary Ross acted with a discriminatory intent."

After the Fourth Circuit's action Tuesday, Francisco again wrote the justices and urged them to address this latest dispute in their ruling. None of the original or new evidence provides "any basis for setting aside the secretary’s decision on the ground that it violates principles of equal protection," he said.

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