High Court Asked to Back Off Deposition Spat in Census Case

WASHINGTON (CN) – After a federal judge nixed a new citizenship question on the 2020 census, attorneys for the Trump administration and its challengers told the Supreme Court late Thursday to cancel its upcoming hearing on the case.

The Supreme Court had agreed back in November to consider whether Commerce Secretary Wilbur Ross should be made to testify about why he added the question.

At the time it took up the discovery squabble, however, a trial on the merits was already underway in Manhattan. 

U.S. District Judge Jesse Furman issued his ruling Tuesday, finding that Ross violated the public trust in pushing the question without following normal administrative procedures.

In their joint motion Thursday, the parties said there is no time to waste on revisiting the prospect of deposing Ross.

“Given the entry of final judgment, a piecemeal, interlocutory review of the district court’s discovery decisions would delay, rather than expedite, resolution of the merits of this matter in time to ‘finalize the census questionnaire by mid-2019,’” the filing states. “By contrast, a single course of
appellate review from the final judgment is likely the most efficient way to ensure full and timely review of the district court’s orders before the census questionnaire must be finalized. Accordingly, the court should dismiss the writ of certiorari as improvidently granted.”

Furman did not reach the challengers constitutional questions — that Ross added the question with the intent of discriminating against immigrants of color — but he noted that a deposition of Ross might have showed that very thing.

Ross had claimed that he added the question to help the Department of Justice enforce the Voting Rights Act, but a group of challengers led by the New York Attorney General’s Office alleged that this was a pretext to mask his true goal of depressing participation in immigrant communities. 

Representing 18 states, 15 cities and various civil rights groups, the challengers argued that the undercount caused by such manipulation of the once-in-a-decade survey would reduce political representation and hundreds of billions of dollars in funding.

The Trump administration filed a notice of appeal in the New York case on Thursday as well, setting the stage for Furman’s ruling to go to the Second Circuit.

With the survey’s printing deadline in June 2019, a federal judge in California is weighing a separate challenge to the citizenship question.

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