Appeals Court Sets Up Supreme Court Showdown Over Census Question

3 hours ago
Originally published on October 9, 2018 7:47 pm

A three-judge panel of the 2nd U.S. Circuit Court of Appeals has rejected the Trump administration's effort to stop Commerce Secretary Wilbur Ross from having to sit for questioning under oath as part of the multiple lawsuits across the country over his decision to add a question about U.S. citizenship status to the 2020 census.

But the judges have kept Ross' Oct. 11 deposition temporarily on hold to allow either the administration or the lawsuits' plaintiffs "to seek relief from the Supreme Court," according to the order released Tuesday.

The 2nd Circuit order comes amid a last-minute scramble by the Trump administration's attorneys to stop Ross and another key official behind the citizenship question — Justice Department official John Gore — from having to testify out of court in the two lead lawsuits in New York. Evidence gathering for the two lawsuits is set to end this week.

The decision upholds an earlier ruling by U.S. District Judge Jesse Furman, who wrote: "Secretary Ross must sit for a deposition because, among other things, his intent and credibility are directly at issue in these cases."

Lawyers for the dozens of states, cities and organizations suing the Trump administration were set to question Ross on Thursday, the day after they're scheduled to depose Gore. Gore leads the Justice Department's Civil Rights Division that, the administration argues, needs responses to the citizenship question to better enforce the Voting Rights Act's protections against discrimination of racial and language minorities.

The Trump administration is expected to appeal Tuesday's 2nd Circuit ruling to the Supreme Court. Last week, Justice Ruth Bader Ginsburg turned down the administration's request for the high court to temporarily stop the depositions and requests for internal documents for the lawsuits but left the door open for the administration to ask the court to permanently block them.

All of this legal back-and-forth is building up to the start of the first potential trial over the citizenship question, which is set to begin on Nov. 5, the day before the midterm elections, at the U.S. District Court for the Southern District of New York.

Ross has said he added the question so that the Justice Department can use the citizenship information to better enforce Section 2 of the Voting Rights Act. But the plaintiffs say the federal government does not need the 2020 census to collect citizenship data to enforce Section 2 of the Voting Rights Act. Since the law was enacted in 1965, the government has relied on estimates of voting-age citizens from a Census Bureau survey now known as the American Community Survey.

More than two dozen states and cities, plus other groups, have filed suit to get the citizenship question removed from forms for the upcoming national head count. Citing Census Bureau research, they worry that asking about citizenship status in the current political climate will discourage households with noncitizens from participating in the census.

In their complaints, the plaintiffs say that Ross' decision to add the question was a misuse of his discretion over the census as the head of the Commerce Department. They also allege that the Trump administration's push for the question discriminated against immigrant communities of color.

The Census Bureau has not asked all households in the country about citizenship status since 1950.

Democrats in both the Senate and House of Representatives have been calling for Ross to return to Capitol Hill to testify about the citizenship question after internal memos and emails released as part of the lawsuits contradicted a timeline Ross described in past testimony. Before announcing the addition of the citizenship question in March, Ross told lawmakers that the Justice Department "initiated" the request for the question. Asked whether the White House directed him to add a citizenship question, Ross said during a House hearing, "We are responding solely to the Department of Justice's request."

In June, however, Ross disclosed in a memo filed as part of the lawsuits that he began considering adding the question to the 2020 census "soon after" he took over the Commerce Department in February 2017; the Justice Department sent its formal request to the Census Bureau later that year, in December. Ross also noted that "other senior Administration officials had previously raised" the issue of a citizenship question.

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