Reopened Legal Challenge to Census Citizenship Question Throws Case Into Chaos

The battle over whether to add a citizenship question to the 2020 census was thrown into turmoil on Tuesday, just as the Supreme Court was expected to issue a ruling on the dispute this week.

By allowing a district judge to reopen a case related to the origin of the question, a federal appeals court raised the prospect that the federal government might be unable to meet a deadline for completing census questionnaires that include it, regardless of the Supreme Court’s ruling.

New hearings in the reopened case would stretch well beyond July 1, which is the deadline for printing the questionnaire and other forms. The Census Bureau has said that meeting that deadline is essential to conducting the national head count on time.

The case had appeared to be on a fast track to a resolution — until documents on the computer backups of a deceased Republican strategist, Thomas B. Hofeller, emerged last month. Those documents revealed new details about the genesis of the question, casting additional doubt on the Trump administration’s rationale for asking 2020 census respondents whether they are citizens.

[How a deceased G.O.P. strategist’s hard drives revealed new details on the census citizenship question]

In a 2-to-1 ruling on Tuesday, the United States Court of Appeals for the Fourth Circuit halted its review of a decision in two Maryland lawsuits challenging the citizenship question and returned the case to United States District Judge George J. Hazel. The judge had asked last week to reopen the case so that Mr. Hofeller’s newly discovered files could be factored into his ruling.

Judge Hazel now has license to explore the issue and indicated this week that he would give plaintiffs in the Maryland lawsuit 45 days to gather new evidence. One appeals court judge suggested in the ruling on Tuesday that Judge Hazel should issue an injunction barring the addition of the question to the census until the new proceedings are finished.

Should that happen, as appeared likely on Tuesday, the Census Bureau could print forms with a citizenship question on schedule only if the Supreme Court intervened. On Tuesday, the Justice Department asked the Supreme Court in a letter to step into the Maryland lawsuit and resolve the issue itself. Otherwise, the letter stated, the administration would ask the justices to lift any injunction that Judge Hazel might impose.

The appeals court’s ruling effectively throws a wrench into a hugely consequential legal dispute that already had been expedited through the courts because of the bureau’s printing deadline. The two judges who voted to reopen the case, Robert B. King and James A. Wynn Jr., were nominated by President Clinton and President Obama. The dissenting judge, G. Steven Agee, was nominated by President George W. Bush.

Commerce Secretary Wilbur Ross, who oversees the Census Bureau, has said he ordered the citizenship question added to the census because the Justice Department needed citizenship data to better enforce the Voting Rights Act. But judges in three federal lawsuits opposing the question, including Judge Hazel, have called that a poorly manufactured excuse that conceals a different motivation.

Plaintiffs in the lawsuits — cities, states, advocacy groups and others — say Mr. Ross is trying to turn the census into a political weapon against Democrats. They say the citizenship question will deter noncitizens and minorities from filling out the form, leading to an undercount in the predominantly Democratic areas where they live. And they charge that the Republican Party wants a count of noncitizens so that it can exclude them entirely from the population base used for drawing new political maps.

By that argument, the citizenship question is an extension of the Republican Party’s wildly successful effort in 2010 to gain and hold political power by controlling the redistricting process. The strategy then was to pour money and talent into winning control of the state legislatures that draw political maps.

The strategy now, the plaintiffs say, is to further control redistricting by reducing the number of people who are represented in Democratic districts — and thus reduce the number of Democratic districts as well.

The Trump administration has dismissed that as fantasy. But evidence from the lawsuits showed that Mr. Ross took an interest in the impact of noncitizens on political maps only weeks after taking office and invented the rationale that more data was needed for Voting Rights Act enforcement.

The disclosure of Mr. Hofeller’s files last month added weight to the plaintiffs’ claims. They included a study that Mr. Hofeller prepared for a major Republican donor in 2015, which concluded that the next round of redistricting could be swayed to Republicans’ advantage in some states by excluding mostly Hispanic noncitizens and people under voting age from the population totals used to draw political maps. But that could only happen, he wrote, if the next census included a question on citizenship.

The next year, Mr. Hofeller urged President-elect Trump’s transition advisers to add the question to the 2020 census.

Judge Hazel had ruled in April that Mr. Ross’s actions violated the Constitution’s requirements for the census and federal rule-making guidelines. But he said that the plaintiffs in the Maryland lawsuit had failed to prove a third contention — that the citizenship question was a deliberate effort by Mr. Ross to discriminate against Hispanics for political gain, violating their civil rights and the Fifth Amendment’s equal protection guarantee.

In an opinion issued on Monday, the judge wrote that the Hofeller documents were reason enough to take a second look at that issue.

“It is becoming difficult to avoid seeing that which is increasingly clear,” he wrote. “As more puzzle pieces are placed on the mat, a disturbing picture of the decision makers’ motives takes shape.”

Although the census lawsuit before the Supreme Court is a different case that originated in Manhattan, it includes the same issues that Judge Hazel considered. But the question of discrimination is at issue only in the Maryland lawsuit, which is why the fate of the citizenship question appears to rest on its resolution — and on the July 1 printing deadline.

In papers filed in the Supreme Court last week, the Justice Department took issue with the Census Bureau’s contention that it needed to start printing forms next month, saying the agency could wait as late as Oct. 31 to begin the work. But experts say the printing work is so vast — more than a billion pieces of paper — and such a logistical tangle that the bureau’s ability to put off its start is measured in weeks, not months.

Some of the census forms require high-quality printing equipment that is not commonly available; in 2010, the bureau had to use virtually every such printer in the nation to complete its work. Nor is rescheduling the work a simple matter, because printing companies have contracts to serve other customers that have been scheduled for times when census forms are not being printed.

Nor does the bureau have any give in its own schedule. The first census forms must be distributed in Alaska in January, and by law, the count must be complete by Dec. 31 of next year.

“It’s not like the Census Bureau can demand things at the drop of a hat,” said one former senior official at the bureau, who spoke on condition of anonymity because of an advising relationship with the agency. “You’d really be putting the operational plan at great risk if this stretches into mid-August. You may not have a census at all in 2020.”

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