A federal appeals court in Richmond, Virginia, sent a challenge to the addition of a citizenship question to the census back to the lower court to determine whether the Trump administration acted with discriminatory intent when it decided to ask about citizenship.
The divided three-judge panel on the 4thth U.S. Circuit Court of Appeals said in an order Tuesday it was remanding the case back to the federal district court in Maryland for further proceedings on equal protection claims.
The ruling comes after immigrant rights groups presented U.S. District Court Judge George Hazel in Maryland with evidence discovered on hard drives belonging to Republican redistricting strategist Thomas Hofeller, who died in August.
The records showed Hofeller spoke with a Commerce Department transition official about adding the citizenship question to the census. Emails found on Hofeller’s devices also indicated the inclusion of the citizenship question would give Republicans and non-Hispanic whites a political advantage.
Hazel wrote in a filing Monday the evidence presented by the challengers “potentially connects the dots between a discriminatory purpose — diluting Hispanics’ political power — and Secretary Ross’s decision” and said there was enough evidence to reopen the case.
“As more puzzle pieces are placed on the mat, a disturbing picture of the decisionmakers’ motives takes shape,” he said.
The order from the Richmond-based court adds another wrinkle to the ongoing dispute over the Trump administration’s decision to add the citizenship question to the census.
Three district court judges — including the judge in Maryland — blocked the Commerce Department from asking about citizenship on the census, and the Supreme Court heard oral arguments in the dispute in April.
A ruling from the high court on whether the Trump administration can include the citizenship question on the census is expected as early as Wednesday. In that case, the challengers argued the Trump administration violated the Administrative Procedure Act and the Constitution in deciding to ask about citizenship on the census.
But the discovery of the evidence from Hofeller has thrown an 11-hour twist into the disputes. While the Trump administration said it decided to add the citizenship question to the census to ensure better enforcement of the Voting Rights Act, states, major cities, and groups challenging the move argue the findings undercut those claims.
Immigrant rights groups notified the court in New York, which first heard the dispute, of the findings this month, but Judge Jesse Furman indicated he would wait for the Supreme Court to rule.
Lawyers for the American Civil Liberties Union, which is representing the organizations, asked the Supreme Court this month to consider postponing its ruling in light of the new evidence.
But the Justice Department has pushed back on the findings and the requests from the challengers. In a letter to the Supreme Court on Tuesday, Solicitor General Noel Francisco called the claim, based on Hofeller’s records, that the Trump administration acted with discriminatory intent a “speculative conspiracy theory that is unsupported by the evidence and legally irrelevant.”
In a subsequent filing following the 4th Circuit’s order, the Justice Department urged the Supreme Court to address the equal-protection issue and “immateriality of the Hofeller files” in its forthcoming ruling and said the issue is “squarely before this court for resolution.”
The order from the appeals court, Francisco wrote, “jeopardizes” the Census Bureau’s schedule for finalizing and administering the 2020 Census.
