Judge in Census Case Slaps Feds on ‘Unacceptable’ Discovery Breach

A billboard highlighting the 2020 census is seen last month in Dearborn, Mich. (AP Photo/Carlos Osorio)

(CN) — A federal judge sanctioned the Department of Justice on Thursday for failing to turn over more than a tenth of the files required in the litigation over the 2020 census.

That failure “may well have been inadvertent, but is nevertheless unacceptable for any litigant, and particularly for the Department of Justice,” U.S. District Judge Jesse Furman wrote in a 23-page opinion.

“To be sure, this was not DOJ’s finest hour,” the Obama appointee wrote in conclusion.

The Justice Department insisted that the problem resulted from a “technical error,” caused by a coding glitch in the agency’s digital review platform.

“In other words, defendants’ failure to produce the documents was caused by a lapse that would make a first-year litigation associate wince,” Furman added.

Depicting the problem as worse than technological bungling, the New York Attorney General’s Office and five civil rights groups allege a more sinister plot to deceive the court about a plan to manipulate the census for partisan gain.

Those allegations circle around the discovery of a trove of documents belonging to the late Thomas Hofeller, a now-deceased Republican operative who built a reputation as the party’s “Michelangelo of gerrymandering.”

One of the files showed that Hofeller explicitly and cynically envisioned the citizenship question as benefiting “Republicans and Non-Hispanic Whites.” Even though Commerce Department denied a discriminatory motive, civil rights groups claim that an outside adviser to Secretary Wilbur Ross used some of Hofeller’s language in its own justification.

Judge Furman ultimately found he lacked the power to investigate the accusations of perjury and cover-up.

“To be clear, that conclusion is not based on a finding that plaintiffs’ troubling allegations are wrong; the court intimates no view on that question,” Furman wrote. “Instead, the conclusion is based primarily on the fact that, even if plaintiffs’ allegations are accurate, that would not have changed the outcome of this litigation.”

Nearly a year ago exactly, the Supreme Court largely upheld Furman’s ruling blocking the citizenship question. Secretary Ross had claimed to have needed the citizenship data to enforce the Voting Rights Act, a justification that the high court found “contrived.”

“If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case,” Chief Justice John Roberts wrote in June. 

Since that decision resolved the case, Judge Furman left further fact-finding to the court of public opinion.

“Litigation, despite its truth-seeking function, sometimes produces an incomplete or unsatisfying version of the facts,” he wrote. “In this case, however, the facts that Plaintiffs were able to prove at trial won them complete relief in this court and in the Supreme Court of the United States. If there is more to the story, principles of judicial restraint counsel in favor of letting it be uncovered and told somewhere else.”

An attorney for the civil rights groups — Casa de Maryland, American-Arab Anti-Discrimination Committee, ADC Research Institute, New York Immigration Coalition, and Make the Road — celebrated the decision.

“The court has reaffirmed that the Trump administration’s ‘official story concealed their true reasons’ for attempting to add a citizenship question to the census,” Dale Ho, the director of the American Civil Liberties Union’s Voting Rights Project, said in a statement. “It also found that the Department of Justice’s conduct in this case was ‘not DOJ’s finest hour,’ marred ‘by a lapse that would make a first-year litigation associate wince.’ We couldn’t agree more. The court appropriately imposed monetary penalties on the administration, which will finally bring this litigation to an end.”

Sanctioned with having to pay the attorneys’ fees of its opponents, the Justice Department declined to comment Thursday.

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