Judge Cites Bad Faith in Case on Census Change

MANHATTAN (CN) – Advancing litigation over the citizenship question that the U.S. government is adding to the 2020 census, a federal judge on Tuesday highlighted evidence of bad faith by Commerce Secretary Wilbur Ross.

Immigration advocates gather in Foley Square on July 3, 2018, to celebrate what New York Attorney General Barbara Underwood called a “major win” in a constitutional challenge to the addition of a citizenship question to the 2020 census. (ADAM KLASFELD, Courthouse News Service)

New York Attorney General Barbara Underwood, one 19 attorneys general behind the federal challenge, called Tuesday’s ruling a “major win.”

“The federal government has a solemn obligation to ensure a fair and accurate count of all people in this country,” Underwood said in a statement. “By demanding the citizenship status of each resident, the Trump administration is breaking with decades of policy and potentially causing a major undercount that would threaten billions in federal funds and New York’s fair representation in Congress and the electoral college.”

Ordering the government to turn over its privilege log by July 23, U.S. District Judge Jesse Furman appeared troubled by Secretary Ross’s apparent flip-flop on why he decided to reintroduce a citizenship question that has not appeared on the census since 1950.

On June 21, Secretary Ross told the House Ways and Means Committee that the Department of Justice requested that the census include a citizenship question to help enforce the Voting Rights Act.

“It now appears those statements were potentially untrue,” U.S. District Judge Jesse Furman said from the bench this morning, quoting a brief that Ross filed with the court the same day the secretary told a different story to Congress.

“Soon after my appointment as secretary of commerce, I began considering various fundamental issues regarding the upcoming 2020 census, including funding and content,” Ross had said.

“Part of those considerations included whether to reinstate a citizenship question, which other senior administration officials had previously raised.”

Taking issue with this apparent flip-flop, Judge Furman cited the reversal as a reason to initiate discovery for 19 attorneys general who contend that the citizenship question is unconstitutional.

Stopping short of a formal finding, Furman said that the attorneys general provided a “strong showing of a claim of bad faith” by Secretary Ross that the Voting Rights Act served as a “pretextual” reason for the change.

The government must produce its privilege log and complete initial disclosures by July 23.

Judge Furman allowed the states to pursue 10 fact depositions from the Department of Justice and the Department of Commerce, refraining at this time from ordering Secretary Ross and White House officials to take the hot seat.

The ruling fell toward the end of a 2.5-hour hearing in New York’s Thurgood Marshall Courthouse, where Department of Justice attorney Brett Shumate insisted no case like it has been heard before in federal court.

“Congress has reserved itself with the right to review the questions,” Shumate said.

In response, Furman cheekily proposed what he called a “hypothetical” in which the executive branch and Congress under the control of the same party tried to depress the count of the other.

Three lawsuits in New York, California and Maryland accuse the Trump administration of playing that sort of politics with the census.

What’s more, New York Assistant Attorney General Ajay Paul Saini said, that effort is already succeeding.

“We believe there are immediate injuries that have occurred here,” Saini said, saying that pre-census testing has revealed “unprecedented levels of immigrant anxiety.”

Shumate insisted that court would have no power to review census questions, even if the questions were designed to suppress response along partisan lines.

Pressed by Judge Berman, Shumate said that a question by an anti-gun administration requesting information about firearms would also be unreviewable.

“It would not violate the Enumeration Clause,” Shumate said, referring to the constitutional requirement to count those living in the United States.

Finding otherwise, Shumate warned, would invite judicial scrutiny over the font of the census forms.

Assistant Attorney General Elena Goldstein countered that a decision to print census forms in 2-point Garamond font could also compromise the count.

“The decision to send out all the questions in French would affect the accuracy,” she added.

Parrying the government’s claim that the lawsuit is unprecedented, Goldstein replied that the Trump administration’s conduct here is, too.

“That fact reflects the extreme and outlandish nature of the defendants’ behavior here,” Goldstein said.

“Instead of the secretary aiming for accuracy, this is the secretary aiming in the wrong direction,” she added later.

Judge Furman expressed concern about establishing limits over court supervision over the census.

“Can the secretary ask about sexuality?” Furman asked.

Goldstein said that would depend on the testing and procedures the secretary conducted, which were not in place here.

“There may be hard cases out there, your honor,” she acknowledged. “But this is not one of them.”

Furman reserved decision on the government’s motion to dismiss but remarked that it was “unlikely” that he would grant it.

While the states initially requested a trial by Oct. 31, Furman did not set a firm date because he said that the case could resolve on summary judgment before that time.

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