Dale Ho ACLU’s Voting Rights Project Director Dale Ho addressing media outside the U.S. Supreme Court after arguments in the census case. Credit: Diego M. Radzinschi / ALM

Updated at 9:21 p.m.

The plaintiffs who are challenging the addition of a citizenship question on the 2020 census told the U.S. Supreme Court on Thursday that new evidence supports their claim that Trump administration officials falsely testified about why they wanted to include the question in the first place.

The notice to the justices comes as the Supreme Court likely is in the final stage of drafting its decision in U.S. Department of Commerce v. New York on the legality of adding the citizenship question to the next census. The Supreme Court heard arguments in April, and the court appeared divided. The Trump administration has said it needs a ruling by the end of June in order to print the census questionnaire.

Late-breaking developments at the Supreme Court after arguments, and before decisions, are rare. The new evidence in the census case could present the court with a difficult dilemma: whether to delay its decision by calling for supplemental briefing, remand the case back to the district court, or go forward with a final decision. All of this plays out under the pressure of the looming deadline to print the census.

“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,” Dale Ho of the American Civil Liberties Union, counsel to the New York Immigration Coalition, told the Supreme Court.

U.S. Commerce Secretary Wilbur Ross and John Gore, a top lawyer at the Justice Department, had said the reason for adding the citizenship question was to enforce the Voting Rights Act. The U.S. Justice Department went to the high court to challenge a New York judge’s ruling that said the government had violated the federal Administrative Procedure Act and that the government’s stated reason for the citizenship question was pretextual.

Ho and co-counsel at the law firm Arnold & Porter Kaye Scholer earlier on Thursday filed a motion in the U.S. District Court in Manhattan informing that court of the new evidence, which was derived from computer files belonging to the now-deceased Hofeller. The filing in the Supreme Court advised the justices about the submission in the trial court.

The plaintiffs asked the judge, Jesse Furman, to issue an order to show cause whether sanctions or other appropriate relief are warranted in light of the evidence contradicting the sworn testimony of Gore and Ross’s expert adviser, A. Mark Neuman.

Furman has called for a response from the government by Friday. A hearing is scheduled for next week.

“Witnesses misrepresented the origin and purpose of their effort to add a citizenship question to the census,” Ho said in a statement. “Their goal was not to protect voting rights, but to dilute the voting power of minority communities. We look forward to Wednesday’s hearing and will keep the Supreme Court aware of any further developments.”

A Justice Department spokesperson described as “false” the new claims lodged by the plaintiffs.

“Before today, Mr. Gore had never heard of the unpublished study apparently obtained from the personal effects of a deceased political consultant.  That study played no role in the Department’s December 2017 request to reinstate a citizenship question to the 2020 decennial census. These unfounded allegations are an unfortunate last-ditch effort to derail the Supreme Court’s consideration of this case,” the DOJ said in its statement.

Whether the new evidence of apparent partisan motivations to add the citizenship question will have an impact on the Supreme Court’s final decision is difficult to tell, legal scholars said Thursday.

“At the end of the day, they’re reviewing an administrative record and don’t usually look outside the record,” said Christopher Walker of Ohio State University Moritz College of Law. “A lot of the argument seems to be hinging around what’s not in the record and this may be additional fuel for this.”

The record, which is the basis for judicial review, “only includes evidence directly or indirectly ‘before’ Secretary Ross at the time of decision,” Jennifer Nou of the University of Chicago Law School said in a tweet. “That said, other parts of the record already suggest Ross’s decision was pretextual. New information just confirms it as a matter of reality.”

With or without the official notice to the high court, there are good chances the justices were already aware of the new information about the census case that surfaced in New York on Thursday.

In addition to widespread news coverage, the new developments were discussed across social media platforms by journalists, lawyers and others.

Supreme Court law clerks, if not the justices themselves, are known to follow Twitter. A new law review article—“Virtual Briefing at the Supreme Court”—found that at least 25 of the court’s law clerks from last term and the current term have active Twitter accounts. The article examines the modern-day explosion of sources of news and advocacy, and how it could be affecting the high court.

Online commentary, sometimes at the 11th hour before oral argument, may influence the court, according to Stanford Law School professor Jeffrey Fisher and professor Allison Orr Larsen of William & Mary Law School, the authors of the article.

They point to a late posting by the Heritage Foundation in 2017 that emphasized the religious hostility shown by Colorado officials in the Masterpiece Cakeshop v. Colorado Civil Rights Commission case. That aspect had not been highlighted in the briefing, but it soon loomed large in the outcome of the case.

sonia sotomayor Supreme Court Justice Sonia Sotomayor. Credit: Diego M. Radzinschi/ National Law Journal.

The use of outside-the-record information has been a point of contention among the justices. Last year, in a First Amendment case involving information that California required crisis pregnancy centers to disclose, Justice Sonia Sotomayor indicated during oral argument that she had looked at the websites of some of the centers.

Then-Justice Anthony Kennedy interrupted, “In this case I didn’t go beyond the record to look on the internet because I don’t think we should do that.”

Also last year, Chief Justice John Roberts Jr. expressed anger in a case in which nonrecord information was about to be discussed. Roberts said. “As far as I’m concerned, coming in and saying I want to know about this thing that’s not in the record is no different from somebody else coming off the street and saying: ‘Hey, wait a minute, I know what happened in this case.’”

But even Roberts is not immune from glancing at the internet. During oral argument in a 2011 case challenging the constitutionality of an Arizona campaign finance law, he noted that he “checked the Citizens’ Clean Elections Commission website [that] morning” to determine the purpose of the statute.

 

Read the letter the ACLU sent to the Supreme Court:

 

 


Read more:

Justices, Appearing Divided, Weigh Legality of Adding Citizenship Question

Doug Letter, in Census Case, Will Make 2nd Supreme Court Argument

Third Federal Judge Strikes Down Citizenship Question on US Census

What Makes Chief Justice Roberts Lose His Cool

Stanford Law’s Jeffrey Fisher Joins O’Melveny as Special Counsel

 

This report was updated with comment from the U.S. Justice Department.