[EL] “The Census Case Is Shaping Up to Be the Biggest Travesty Since Bush v. Gore”

Tue Jun 25 18:53:53 PDT 2019

Rick,

I tweeted five possible paths forward in the Census Case:

https://twitter.com/JoshMBlackman/status/1143698702831443968

I welcome other thoughts.
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Josh Blackman
http://JoshBlackman.com
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On Tue, Jun 25, 2019 at 5:52 PM Rick Hasen <rhasen at law.uci.edu> wrote:

> “The Census Case Is Shaping Up to Be the Biggest Travesty Since Bush v.
> Gore” <https://electionlawblog.org/?p=105774>
>
> Posted on June 25, 2019 3:50 pm <https://electionlawblog.org/?p=105774>
> by *Rick Hasen* <https://electionlawblog.org/?author=3>
>
>
>
> I have written this piece
> <https://slate.com/news-and-politics/2019/06/census-case-john-roberts-bush-v-gore-tragedy.html> for
> Slate. It begins:
>
>
>
> *The government’s conduct in the pending Supreme Court case about adding a
> citizenship question to the census has gone from indefensible to
> outrageous. In the case, which is likely to be decided this week, Solicitor
> General Noel Francisco on Tuesday asked the Supreme Court to become
> complicit in a cover up of discriminatory activity by doing something the
> court does not and cannot do: decide a legal issue that is not before it
> <https://www.supremecourt.gov/DocketPDF/18/18-966/104091/20190625161322614_DEPT%20OF%20COMMERCE%20ET%20AL%2018-966%20LETTER.pdf>.
> If the court does so, any pretense of the legitimacy of the decision will
> be gone.*
>
>
>
> It concludes:
>
>
>
> *To be absolutely clear, the Equal Protection claim is not currently
> before the Supreme Court in the case it is about to decide. Nonetheless, in
> two <https://twitter.com/ssamcham/status/1143603936315752449> last minute
> filings with the Supreme Court, Francisco has asked the Court
> <https://www.supremecourt.gov/DocketPDF/18/18-966/104091/20190625161322614_DEPT%20OF%20COMMERCE%20ET%20AL%2018-966%20LETTER.pdf> to
> decide the question. “The Fourth Circuit’s order underscores the need for
> this Court to address the equal-protection claim and the immateriality of
> the Hofeller files in its disposition of the above-captioned case so that
> the lawfulness of the Secretary’s decision can be fully and finally
> resolved.” This is outrageous. The issue has not been fully briefed
> <https://twitter.com/ssamcham/status/1143639694917414912>. It was not the
> subject of oral argument. It involves evidence for which there has been no
> fact-finding. For the Supreme Court to decide the issue on this basis is
> the definition of lawlessness. It is not how the Supreme Court normally
> does business, and the solicitor general should know better. If the court
> starts doing this it becomes no more than a branch of the Trump
> administration.*
>
>
> * The government claims the printing deadline is imminent, but the Fourth
> Circuit found that the printing can actually wait until October. This issue
> deserves full and fair vetting. The Supreme Court can deal with any
> injunction from the district court or the Fourth Circuit in later filings
> after the trial court finds all the facts
> <https://slate.com/news-and-politics/2019/06/census-citizenship-question-hofeller-appeals-court.html> about
> possible discriminatory intent from the Hofeller evidence.*
>
>
> * Indeed, in another case of similar political import, a Supreme Court
> majority declared the following: “The press of time does not diminish the
> constitutional concern. A desire for speed is not a general excuse for
> ignoring equal protection guarantees.” That case was Bush v. Gore
> <https://supreme.justia.com/cases/federal/us/531/98/>, the case ending the
> disputed 2000 presidential election and handing the election to Republican
> George W. Bush over Democrat Al Gore. There, the justices of the Supreme
> Court let politics get in the way of a fair decision. It looks like history
> may be about to repeat itself.*
>
>
>
>
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D105774&title=%E2%80%9CThe%20Census%20Case%20Is%20Shaping%20Up%20to%20Be%20the%20Biggest%20Travesty%20Since%20Bush%20v.%20Gore%E2%80%9D>
>
> Posted in Bush v. Gore reflections <https://electionlawblog.org/?cat=5>, census
> litigation <https://electionlawblog.org/?cat=125>, Supreme Court
> <https://electionlawblog.org/?cat=29>
>
>
>
>
>
> --
>
> Rick Hasen
>
> Chancellor's Professor of Law and Political Science
>
> UC Irvine School of Law
>
> 401 E. Peltason Dr., Suite 1000
>
> Irvine, CA 92697-8000
>
> 949.824.3072 - office
>
> rhasen at law.uci.edu
>
> http://www.law.uci.edu/faculty/full-time/hasen/
>
> http://electionlawblog.org
>
> [image: signature_1573953209]
>
>
>
>
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