New Evidence in Census Case May Affect SCOTUS Ruling

and on Bloomberg dot com slash podcasts. A Supreme Court ruling on the Trump administration's plans to add a citizenship question to was expected in June, but now there may be something gumming up the courts well oil process, and it comes from files that surfaced after the death of a Republican redistricting consultant. Joining me is Bloomberg News Supreme Court reporter Greg's store. So Greg start by explaining what was found in the files of Thomas Huffeller and why

it's significant June. What was found? What was a draft study that he performed that talked about how adding a citizenship question to the census would actually help Republicans and white voters because it would allow for districts to be drawn in a different way, such that um a district that might otherwise be say, heavily heavily Hispanic, heavily democratic,

would have to take on more territory. I have to bring in more people and therefore, UM the voters in the in those districts would have a bit less clout UM and that those files seem to match up pretty well with UH some of the documents in the census case. And the allegation is that Mr Hoffeller's UH work actually fed into the census, the Commerce Department's decision to include

the citizenship question on the census. So how would that enter into the Supreme courts discussions of the case before them. So one of the big issues at the Supreme Court is the Trump administration says the reason we're adding this question is because it will help us enforce the Voting Rights Act. In other words, it will make it easier for us to bring cases that say Hispanics are being discriminated against, because we'll have a better sense of, you know,

of where there are citizens in the country. And UH there has the argument. The finding of a federal trial judge in the case was that that that rationale was a pretext. That wasn't the real reason that the administration is trying to add the question. Well, this evidence, if you believe it, UH, could show what the actual reason was, not that they were trying to help enforce the Voting Rights Act, but actually that they were trying to help

elect more Republicans. Now, um, in the the evidence right now, this new evidence is just before Manhattan Judge Jesse Furman, who decided the government and couldn't add assist question question after a trial. What's happening right now? Yeah, So the procedurally this is is pretty much untried territory and certainly complicated. The case supposedly is all at the Supreme Court, and

Judge Ferman shouldn't have anything to do. But uh, those challenging the question have uh filed a letter with Judge Furman saying, hey, look at all this new evidence and it it suggests in fact shows they say that some people on the government side were misleading in their testimony. Um. And so they are essentially trying to get Ferman to open up the case, reopen the case at least in some sense to uh impose sanctions on the Trump administration.

And one possibility at least is that the sanctions would be you have to submit to officials, have to submit to a new deposition, and they may try to, uh, you know, gather some more evidence and more findings from Judge Furman. To present to the Supreme Court before it makes its final decision. The Justice Department says that this had the claims are false and it played no role in the Department's request to put that citizenship question on

the census. Now, the Supreme Court, as you know, usually bases its rulings on the evidence before the trial court, the arguments filed in the in the briefs in the case. Would the Justices even consider new evidence at this point? If not at all clear? I asked a number of Supreme Court lawyers yesterday if they knew of any real precedent for this, and there wasn't a really good parallel um. So it's hard to say, um, exactly what the Court

would do. Now. One possibility, depending on how the Conservatives look at this case, is that they might say it doesn't matter to us regardless. One one argument that the administration has been making is, look, the Commerce Department has put forth a rationale that that makes sense, and you need to defer to that. Because the Commerce Department, which oversees the Census Bureau, has very broad discretion and deciding

what questions go into the sensus. So it's possible that all this evidence really wouldn't matter to the five conservative justices on the Court in any event, Um, I would expect that that all this new information will at least in some way entering into the opinions in the case,

if only in a dissenting opinion. So when we spoke last about the census question, after the oral arguments, you seem to feel that they were basically going to ignore the evidence about you know, Wilbur Ross and whether he who he talked to before and and rule on sort of the concept. Correct me if I'm wrong, because so that would mean that this new evidence really wouldn't matter

to them exactly. That was That was what I was suggesting earlier, that that was at least the sense that that a lot of us got from the argument that that was where it seemed like the Conservative justices were.

Now argument can be deceiving. I I don't think, you know, based on what we know about this case in the way the argument when that this is a slam dunk at this point from the outside, Um, there's certainly a possibility that Chief Justice Roberts is a lot more sympathetic to the challengers to the census question than he led

on during the arguments. Uh, you know, at a minimum, one would imagine that the Chief Justice, who cares a lot about the Court's institutional standing, would be bothered by the image of this court both in in this case and potentially another pair of cases evolving partisan jurymandery, that he would really be bothered by the perception that this

court is doing the bidding of the Republican Party. But there's at least the potential, depending on how those cases come out, that a lot of people are going to think that's what's happening. And Greg, you spoke to Rick Hasson, who's a voting rights expert at u C Irvine, and it's interesting he thought that these revelations could make the courts conservatives even more likely to back the administration. Yeah,

he had an interesting take. Um. So, there was a case a few years ago called Evanwell and had to do with, um, what how when when a state is drawing districts in this case, it was state legislative districts. Um. And it's trying to comply with the one person, one vote principle, whether it should be using the total population which is what states generally use, or citizen voting age population and in this case the Supreme Court said, Um,

this is a fairly narrow ruling. It said, well, at least states are not required to use the citizen voting age population UM. But Justices Alito and Thomas in descent in that case UH said it suggested that they were strungly inclined to say that at a minimum, they should be allowed to use that measure, and that would be

something that would likely help Republicans at the polls. And so Rick Casson's point is that to the extent that this new evidence suggests that the real reason was to help states UH draw districts using citizen voting age population rather than total population, it might be something that some of the more conservative justices are very sympathetic to. All Right, thanks so much, Greg. We'll learn more next week. That's Bloomberg New Supreme Court report of Greg Store. Thanks for

listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brasso. This is Bloomberg. Yeah,