WEBVTT - New Evidence in Census Case May Affect SCOTUS Ruling

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>and on Bloomberg dot com slash podcasts. A Supreme Court

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<v Speaker 1>ruling on the Trump administration's plans to add a citizenship

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<v Speaker 1>question to was expected in June, but now there may

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<v Speaker 1>be something gumming up the courts well oil process, and

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<v Speaker 1>it comes from files that surfaced after the death of

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<v Speaker 1>a Republican redistricting consultant. Joining me is Bloomberg News Supreme

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<v Speaker 1>Court reporter Greg's store. So Greg start by explaining what

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<v Speaker 1>was found in the files of Thomas Huffeller and why

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<v Speaker 1>it's significant June. What was found? What was a draft

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<v Speaker 1>study that he performed that talked about how adding a

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<v Speaker 1>citizenship question to the census would actually help Republicans and

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<v Speaker 1>white voters because it would allow for districts to be

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<v Speaker 1>drawn in a different way, such that um a district

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<v Speaker 1>that might otherwise be say, heavily heavily Hispanic, heavily democratic,

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<v Speaker 1>would have to take on more territory. I have to

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<v Speaker 1>bring in more people and therefore, UM the voters in

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<v Speaker 1>the in those districts would have a bit less clout

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<v Speaker 1>UM and that those files seem to match up pretty

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<v Speaker 1>well with UH some of the documents in the census case.

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<v Speaker 1>And the allegation is that Mr Hoffeller's UH work actually

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<v Speaker 1>fed into the census, the Commerce Department's decision to include

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<v Speaker 1>the citizenship question on the census. So how would that

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<v Speaker 1>enter into the Supreme courts discussions of the case before them.

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<v Speaker 1>So one of the big issues at the Supreme Court

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<v Speaker 1>is the Trump administration says the reason we're adding this

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<v Speaker 1>question is because it will help us enforce the Voting

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<v Speaker 1>Rights Act. In other words, it will make it easier

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<v Speaker 1>for us to bring cases that say Hispanics are being

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<v Speaker 1>discriminated against, because we'll have a better sense of, you know,

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<v Speaker 1>of where there are citizens in the country. And UH

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<v Speaker 1>there has the argument. The finding of a federal trial

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<v Speaker 1>judge in the case was that that that rationale was

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<v Speaker 1>a pretext. That wasn't the real reason that the administration

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<v Speaker 1>is trying to add the question. Well, this evidence, if

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<v Speaker 1>you believe it, UH, could show what the actual reason was,

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<v Speaker 1>not that they were trying to help enforce the Voting

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<v Speaker 1>Rights Act, but actually that they were trying to help

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<v Speaker 1>elect more Republicans. Now, um, in the the evidence right now,

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<v Speaker 1>this new evidence is just before Manhattan Judge Jesse Furman,

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<v Speaker 1>who decided the government and couldn't add assist question question

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<v Speaker 1>after a trial. What's happening right now? Yeah, So the

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<v Speaker 1>procedurally this is is pretty much untried territory and certainly complicated.

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<v Speaker 1>The case supposedly is all at the Supreme Court, and

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<v Speaker 1>Judge Ferman shouldn't have anything to do. But uh, those

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<v Speaker 1>challenging the question have uh filed a letter with Judge

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<v Speaker 1>Furman saying, hey, look at all this new evidence and

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<v Speaker 1>it it suggests in fact shows they say that some

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<v Speaker 1>people on the government side were misleading in their testimony. Um.

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<v Speaker 1>And so they are essentially trying to get Ferman to

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<v Speaker 1>open up the case, reopen the case at least in

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<v Speaker 1>some sense to uh impose sanctions on the Trump administration.

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<v Speaker 1>And one possibility at least is that the sanctions would

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<v Speaker 1>be you have to submit to officials, have to submit

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<v Speaker 1>to a new deposition, and they may try to, uh,

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<v Speaker 1>you know, gather some more evidence and more findings from

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<v Speaker 1>Judge Furman. To present to the Supreme Court before it

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<v Speaker 1>makes its final decision. The Justice Department says that this

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<v Speaker 1>had the claims are false and it played no role

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<v Speaker 1>in the Department's request to put that citizenship question on

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<v Speaker 1>the census. Now, the Supreme Court, as you know, usually

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<v Speaker 1>bases its rulings on the evidence before the trial court,

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<v Speaker 1>the arguments filed in the in the briefs in the case.

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<v Speaker 1>Would the Justices even consider new evidence at this point?

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<v Speaker 1>If not at all clear? I asked a number of

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<v Speaker 1>Supreme Court lawyers yesterday if they knew of any real

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<v Speaker 1>precedent for this, and there wasn't a really good parallel um.

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<v Speaker 1>So it's hard to say, um, exactly what the Court

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<v Speaker 1>would do. Now. One possibility, depending on how the Conservatives

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<v Speaker 1>look at this case, is that they might say it

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<v Speaker 1>doesn't matter to us regardless. One one argument that the

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<v Speaker 1>administration has been making is, look, the Commerce Department has

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<v Speaker 1>put forth a rationale that that makes sense, and you

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<v Speaker 1>need to defer to that. Because the Commerce Department, which

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<v Speaker 1>oversees the Census Bureau, has very broad discretion and deciding

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<v Speaker 1>what questions go into the sensus. So it's possible that

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<v Speaker 1>all this evidence really wouldn't matter to the five conservative

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<v Speaker 1>justices on the Court in any event, Um, I would

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<v Speaker 1>expect that that all this new information will at least

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<v Speaker 1>in some way entering into the opinions in the case,

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<v Speaker 1>if only in a dissenting opinion. So when we spoke

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<v Speaker 1>last about the census question, after the oral arguments, you

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<v Speaker 1>seem to feel that they were basically going to ignore

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<v Speaker 1>the evidence about you know, Wilbur Ross and whether he

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<v Speaker 1>who he talked to before and and rule on sort

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<v Speaker 1>of the concept. Correct me if I'm wrong, because so

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<v Speaker 1>that would mean that this new evidence really wouldn't matter

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<v Speaker 1>to them exactly. That was That was what I was

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<v Speaker 1>suggesting earlier, that that was at least the sense that

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<v Speaker 1>that a lot of us got from the argument that

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<v Speaker 1>that was where it seemed like the Conservative justices were.

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<v Speaker 1>Now argument can be deceiving. I I don't think, you know,

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<v Speaker 1>based on what we know about this case in the

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<v Speaker 1>way the argument when that this is a slam dunk

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<v Speaker 1>at this point from the outside, Um, there's certainly a

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<v Speaker 1>possibility that Chief Justice Roberts is a lot more sympathetic

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<v Speaker 1>to the challengers to the census question than he led

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<v Speaker 1>on during the arguments. Uh, you know, at a minimum,

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<v Speaker 1>one would imagine that the Chief Justice, who cares a

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<v Speaker 1>lot about the Court's institutional standing, would be bothered by

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<v Speaker 1>the image of this court both in in this case

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<v Speaker 1>and potentially another pair of cases evolving partisan jurymandery, that

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<v Speaker 1>he would really be bothered by the perception that this

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<v Speaker 1>court is doing the bidding of the Republican Party. But

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<v Speaker 1>there's at least the potential, depending on how those cases

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<v Speaker 1>come out, that a lot of people are going to

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<v Speaker 1>think that's what's happening. And Greg, you spoke to Rick Hasson,

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<v Speaker 1>who's a voting rights expert at u C Irvine, and

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<v Speaker 1>it's interesting he thought that these revelations could make the

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<v Speaker 1>courts conservatives even more likely to back the administration. Yeah,

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<v Speaker 1>he had an interesting take. Um. So, there was a

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<v Speaker 1>case a few years ago called Evanwell and had to

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<v Speaker 1>do with, um, what how when when a state is

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<v Speaker 1>drawing districts in this case, it was state legislative districts. Um.

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<v Speaker 1>And it's trying to comply with the one person, one

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<v Speaker 1>vote principle, whether it should be using the total population

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<v Speaker 1>which is what states generally use, or citizen voting age

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<v Speaker 1>population and in this case the Supreme Court said, Um,

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<v Speaker 1>this is a fairly narrow ruling. It said, well, at

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<v Speaker 1>least states are not required to use the citizen voting

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<v Speaker 1>age population UM. But Justices Alito and Thomas in descent

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<v Speaker 1>in that case UH said it suggested that they were

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<v Speaker 1>strungly inclined to say that at a minimum, they should

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<v Speaker 1>be allowed to use that measure, and that would be

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<v Speaker 1>something that would likely help Republicans at the polls. And

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<v Speaker 1>so Rick Casson's point is that to the extent that

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<v Speaker 1>this new evidence suggests that the real reason was to

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<v Speaker 1>help states UH draw districts using citizen voting age population

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<v Speaker 1>rather than total population, it might be something that some

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<v Speaker 1>of the more conservative justices are very sympathetic to. All Right,

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<v Speaker 1>thanks so much, Greg. We'll learn more next week. That's

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<v Speaker 1>Bloomberg New Supreme Court report of Greg Store. Thanks for

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<v Speaker 1>listening to the Bloomberg Law Podcast. You can subscribe and

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<v Speaker 1>listen to the show on Apple Podcasts, SoundCloud, and on

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<v Speaker 1>Bloomberg dot com slash podcast. I'm June Brasso. This is Bloomberg. Yeah,