SAN FRANCISCO (CN) – As President Donald Trump pushes to add a citizenship question to the U.S. census despite a Supreme Court setback, a federal judge in California said he won’t have a role to play for the foreseeable future.
“Either it’s in the Supreme Court or the Ninth Circuit. It does not appear to be here in any scenario,” U.S. District Judge Richard Seeborg said during a status conference Wednesday.
Before the Supreme Court blocked the question last month, Seeborg issued one of three federal injunctions after finding it would “threaten the very foundation of our democracy.” In March, the San Francisco-based judge ruled Commerce Secretary Wilbur Ross used a bogus reason to justify adding a question that evidence suggests will suppress immigrant and Latino participation in the decennial survey.
On June 28, the Supreme Court vacated Seeborg’s judgment and sent the case back to the Ninth Circuit for reconsideration in light of its opinion. Under Supreme Court rules, at least 25 days must pass before the case gets officially remanded to the Ninth Circuit.
“Literally there is no injunction outstanding by me so preserving the status quo, there is no status quo to preserve because my injunction is not in place,” Seeborg said.
Representing the state of California, which fought against the citizenship question, California Deputy Attorney General Gabrielle Boutin said she thinks Seeborg still has jurisdiction until the Supreme Court’s mandate reaches the Ninth Circuit, a process that could take 90 days.
“Our belief is the injunction is still in place,” Boutin said.
Seeborg replied it would be a “convoluted process” if he were to maintain jurisdiction after the Supreme Court voided his judgment and sent it back to a different court.
“Perhaps plaintiffs need to go to the Ninth Circuit and ask the Ninth Circuit to send it back to me,” he said.
Attorney John Libby, representing the city of San Jose and Black Alliance for Just Immigration, said the plaintiffs are working with the Justice Department to potentially draw up a new injunction that conforms with the Supreme Court’s opinion.
A divided Supreme Court found Secretary Ross had discretion to find the benefits of adding the question outweighed evidence that it will harm the count’s accuracy and increase costs. A slim majority also ruled Ross impermissibly used Voting Rights Act enforcement as a false motive for his decision.
Libby, of Manatt Phelps and Phillips in Los Angeles, said his clients also plan to partake in discovery recently authorized by a federal judge in Maryland into whether the question was added to suppress minority participation.
U.S. District Judge George Hazel of Maryland ruled on June 24 that unearthed files belonging to late Republican strategist Thomas Hofeller suggest he may have recommended including the question to diminish the voting power of minority communities across the country.
Libby said his clients are considering adding an equal protection claim to their lawsuit in light of that new evidence.
Also on Wednesday, Seeborg warned the Justice Department that it must comply with court rules and file the proper motions if it plans to replace its legal team in his court.
“I do need a withdrawal request if counsel are seeking to withdraw,” Seeborg said.
Earlier this week, a federal judge in New York rejected the Justice Department’s motion to withdraw 11 attorneys from that case, finding their requests “patently deficient” because they failed to provide any reasons, “let alone ‘satisfactory reasons.'”