I am almost reluctant to post this as things are changing daily since the ruling on the 27th.
First, some background. When the Commerce Department first decided to add the question to the Census, cases were filed in multiple districts. (The federal judiciary is divided into districts (the trial courts) and circuits (the appellate courts). Each state has at least one district and the larger states have multiple districts. When a case is filed in a district it is randomly assigned to one of the federal judges appointed for that district). The case before the Supreme Court was a consolidate case filed by two separate sets of plaintiffs in the Southern District of New York which the Supreme Court decided to review before the Second Circuit could. There was also a Ninth Circuit case arising from the Northern District of California that the Supreme Court was holding and a Fourth Circuit case from the District of Maryland. While all of these cases challenged the decision to add the citizenship question to the census, each set of plaintiffs raised different legal arguments.
In its decision on June 27, the Supreme Court split into three general groups — one holding that the question was valid, one holding that the question was not supported by the evidence, and a third group composed of one justice — Chief Justice Roberts. Because the other two groups had four justices each, Chief Justice Roberts had the deciding vote. And he decided that while the record might have supported some reasons for adding the citizenship question to the census, the reason given by the Commerce Department for the question was a lie. Based on this conclusion, the Chief Justice sent the case back to the Second Circuit to send it back to the trial court to strike the question from the census but also send the issue back to the Commerce Department to give the Commerce Department the opportunity to reconsider the matter and — if the Department opted to reinstate the question — give a valid reason. The Supreme Court, by order, directed the Ninth Circuit to consider the Supreme Court’s ruling in its decision on its case.
Prior to the 27th, in light of recent evidence suggesting impermissible motives (i.e. to get distorted census numbers that favor the Republicans), the Fourth Circuit had sent its case back to the District of Maryland to consider this new evidence.
On Tuesday, in an e-mail sent to opposing counsel in at least some of the cases, the Department of Justice (who represents the federal government in court) indicated that the questionnaires for the 2020 Census had gone to the printers and did not include the citizenship question. Later that day, the President announced on twitter, however, that the government was still considering the issue. In response to the tweets, the judge in the Maryland case asked the government attorneys to clarify their position. In the response to that judge, and in a similar filing in New York, the government indicated that while the questionnaire (without the citizenship question) had been sent to the printers and the printing process had begun, the Department was still investigating its legal options. The judge in Maryland then ordered the parties to — by yesterday — either reach a binding agreement that there would be no citizenship question or reach a scheduling order for the Maryland case.
In its filing on July 5, the government indicated its belief that, in light of the Supreme Court decision, there was nothing for the Maryland court to decide. The agency action adding the citizenship question had been vacated. If the Commerce Department makes a “new” decision to add the question back in, that would be a new action that plaintiffs could challenge at that point in time. But until that new decision is made, the old case is moot and the new case is not yet ripe. Notwithstanding this argument, the judge in Maryland declined to dismiss the case and ordered that discovery continue in the Maryland case.
In short, as of today, the census is being prepared without a citizenship question. However, the Department could make a decision to add the question back in later this year. At that point, probably at substantial additional expense, the government could discard the questionnaires that had already been printed without the citizenship question and start printing a new batch of questionnaires with the citizenship question. For now, because of this possibility, the Maryland case is currently still pending. It is unclear what the judges in the Southern District of New York and the Northern District of California will do with their cases.
