SAN FRANCISCO (CN) - Citing facts still in dispute about the decision to add a citizenship question to the 2020 U.S. census, a federal judge suggested Friday that another trial over the controversial Trump administration policy will likely start early next year.
"Let's operate for planning purposes on the presumption that we will be having a trial," Seeborg said at the end of a two-hour hearing Friday after repeatedly pressing a Justice Department lawyer on how a trial could be avoided with disputed facts still in the air.
The state of California and six cities, including Los Angeles and San Jose, sued the Trump administration earlier this year after Commerce Secretary Wilbur Ross announced in March that a citizenship question would be added to the 2020 census. Opponents say asking that question will lead to an undercount of immigrants and a reduction in political representatives, electoral votes and federal funding for places like California, which has more than 10 million immigrants.
After the lawsuits were filed, emails and other records came to light revealing that Ross was pushing for the question to be added long before the Justice Department sent a letter in December 2017 stating that citizenship data would help it enforce provisions of the Voting Rights Act.
“I am mystified why nothing [has] been done in response to my months old request that we include the citizenship question. Why not," Ross wrote in an email on May 2, 2017.
In court Friday, Justice Department lawyer Martin Tomlinson argued the emails don't prove that Ross had an ulterior motive for adding the citizenship question.
"There's no evidence anywhere in the record that the secretary doesn't believe in the stated rationale," Tomlinson insisted.
But Ross acknowledged in a June 2018 memo that he was the one who first sought to add a citizenship question, and that he asked the Justice Department to submit a letter requesting that the question be added.
"Isn't there some disputed facts as to whether or not there's pretext here or not?" Seeborg asked.
Representing the city of San Jose, Ezra Rosenberg of the Washington D.C.-based Lawyers' Committee for Civil Rights Under Law, emphasized that Secretary Ross ignored the Census Bureau's recommendations against adding the question. The Bureau suggested that other records could be used to get voting-age population data for the Justice Department, and that adding a citizenship question would lower census participation, result in poorer-quality data, and require spending an extra $32 million to follow up with non-responding households.
"The Census Bureau has unequivocally stated this will affect the accuracy and quality of the census," Rosenberg argued. "Yet [Ross] is saying providing accurate citizenship data to DOJ outweighs any adverse effects on the census."
Tomlinson countered the law does not require that inferior government employees agree with their superiors about policy decisions.
When asked about the frustration Ross expressed in emails about the lack of progress in adding a citizenship question, Tomlinson said that was merely "a superior trying to move things along" and that "it does not indicate that he's made up his mind."
Tomlinson told the judge the plaintiffs can't point to a single statement showing Ross had an ulterior motive.
Seeborg noted that despite the government's position, the plaintiffs have pointed to statements that they say, in context, show the directive to add a citizenship question came from the secretary, not the Justice Department as asserted in the March 2018 memo justifying the decision.
"Isn't that kind of the essence of a disputed issue?" Seeborg said.
Seeborg did not issue an official ruling Friday, but he told both sides to be prepared to start a five-to-seven-day bench trial on Jan. 7, 2019.
The judge said he will try to issue a written ruling on the U.S. government's motion for summary judgment and the city of San Jose's motion for partial summary judgment within the next week.
A separate trial on the census citizenship question wrapped up in New York late last month. And a federal judge in Maryland is reviewing another set of lawsuits challenging the new census policy, while the Supreme Court is expected to decide next year whether Secretary Ross should be required to testify about his decision to add the citizenship question to the 2020 census.
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