Photo: Maria Dryfhout

Civil rights groups suing over the Trump administration's efforts to ask about citizenship on the 2020 U.S. Census filed a motion Tuesday evening to impose sanctions on the U.S. Department of Justice for allegedly providing false testimony about the origin of the question.

They're now seeking additional discovery in the litigation and for the court to allow a series of documents to be made available to them that were previously labeled as privileged.

The American Civil Liberties Union, New York Civil Liberties Union, and law firm Arnold & Porter Kaye Scholer filed the motion in the Southern District of New York, where U.S. District Judge Jesse Furman has presided over the census litigation for more than a year now. Those groups represent the New York Immigration Coalition, which is a plaintiff on the suit.

“The misconduct was intentional,” they wrote in the motion filed Tuesday. “This is clear from the pattern of Defendants using false and misleading statements and testimony to obstruct Plaintiffs' from discovering evidence of their true, discriminatory motive.”

They alleged in late May that two witnesses from the Trump administration falsely testified about the origin of the citizenship question and why the federal government wanted it on the census. Those officials were John Gore, an official at the DOJ, and A. Mark Neuman, who was a member of Trump's transition team.

Attorneys for the NYIC had claimed that Thomas Hofeller, a longtime Republican redistricting specialist, was involved in early conversations with Neuman about how to formally request that the question be added to the national survey. Hofeller died last year, but attorneys said his digital files, produced in unrelated litigation, connected him to the census matter.

A paragraph from one of the files, attorneys said, matched verbatim with one found in documents allegedly used by the Gore to write the letter asking the U.S. Commerce Department to add the citizenship question.

They also claimed that language included in an unpublished study authored by Hofeller bore “striking similarities” to the letter from DOJ. The study, according to attorneys, looked at what the difference would be for redistricting if citizen voting age population data was used rather than total population. He was commissioned for the research by a conservative website.

Attorneys wrote in the motion filed Tuesday that since May they've also uncovered additional evidence showing that Hofeller had been in contact with Christa Jones, a senior official at the U.S. Census Bureau who was involved in crafting a memo last year explaining the Commerce Department's reasoning for accepting the DOJ's request to ask about citizenship.

The Trump administration has denied that Hofeller was involved in the genesis of the citizenship question. Attorneys for the DOJ said in June that the claim “reads more like the product of a conspiracy theorist than a careful legal analysis.”

But the plaintiffs have said that Hofeller's involvement, if viewed as accurate, directly supports their claims that the Trump administration wanted to ask about citizenship for political reasons. The DOJ had previously said it wanted the question on the survey to better help them enforce the Voting Rights Act.

They also argued in the motion filed Tuesday that Trump administration officials should face sanctions for testimony that was allegedly misleading.

Neuman, for example, previously testified that he didn't help draft a formal request from the DOJ to the Commerce Department asking for the citizenship question. But attorneys claimed Tuesday that Gore later said Neuman had given him a draft of the request to work from. Gore later penned the letter that was sent from DOJ to Commerce asking that the question be added.

“Defendants' misconduct was not isolated. It started at the very outset of the case, includes multiple acts of false and misleading statements delivered in testimony, court filings, and communications to Plaintiffs,” attorneys wrote in the motion. “Indeed, Defendants' misconduct continues through the present day as Defendants have never attempted to correct the record and continue to deny the existence of any misstatement of fact.”

The final sanctions the plaintiffs will end up seeking in the litigation may depend on what they're able to obtain through additional discovery, if that's granted by Furman. For now, they're asking to see certain documents on how the citizenship question was crafted, like previous drafts of the DOJ's official request.

They also suggested that Furman order monetary sanctions, including attorney's fees, but it's unclear how that would be quantified in a final order.

The U.S. Supreme Court, in its decision last month striking down the citizenship question from the census, had been skeptical of the Trump administration's motive behind the original decision.

“Reasoned decision-making under the Administrative Procedure Act calls for an explanation for agency action,” Chief Justice John Roberts Jr. wrote. “What was provided here was more of a distraction.”

President Donald Trump said last week that his administration would abandon its plans to ask about citizenship on next year's census. Attorneys with the U.S. Department of Justice said previously they were considering whether they could somehow circumvent the Supreme Court's decision and add the question anyway.

Trump said that, instead, the Commerce Department will seek information from other federal agencies to compile a head count of citizens in the country, versus total population, rather than seek that information on the census.

The announcement was hailed by the states and civil rights groups involved in litigation against the citizenship question as a victory reflected by the merits of their case. They alleged in a handful of lawsuits last year that the Trump administration was misrepresenting why it wanted to ask about immigration status on the survey and that it had failed to go through the correct process for changing the census.

New York Attorney General Letitia James is leading a coalition of states in the census litigation in New York, which is in the Southern District. The lawsuit from the New York Immigration Coalition was combined with James' lawsuit for trial last year.

They've argued that asking about citizenship on the census would lower turnout for the survey in areas with high immigrant populations like New York. That could lead to a population undercount, they claimed, which could have resulted in fewer seats in Congress for those states. It could have also meant less federal funding in areas like education and health care.

The team had litigated the citizenship question for the better part of last year, into this year, with the challenge traveling quickly from the trial court to the U.S. Supreme Court in a matter of months.

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