Judge in Census Case Wary of Trial Delay

MANHATTAN (CN) – With the polls set to go to print in less than a year, a federal judge appeared inclined Wednesday to begin a trial on Nov. 5 that will determine whether census takers can probe for citizenship in 2020 forms.

Commerce Secretary Wilbur Ross, testifies before a House Committee on Science, Space, and Technology Space Subcommittee and House Armed Services Committee Strategic Forces Subcommittee joint hearing on Capitol Hill in Washington on June 22, 2018. (AP Photo/Manuel Balce Ceneta)

Chief among his concerns, U.S. District Judge Jesse Furman questioned how the government expects to resolve what will likely be multiple levels of appeal before the census is printed in summer 2019.

“You’re telling me you have confidence that you can achieve all of that before June?” Furman asked.

Refusing to delay the trial would put the Manhattan judge on collision course with the conservative-led Supreme Court.

In a Monday night opinion that followed a limited stay ordered by his colleagues, Justice Neil Gorsuch said Furman would do well to postpone the trial as a writ of certiorari in the case appears imminent.

“One would expect that the court’s order today would prompt the district court to postpone the scheduled trial and await further guidance,” Gorsuch wrote, joined by Justice Clarence Thomas. “After all, that is what normally happens when we grant certiorari or indicate that we are likely to do so in a case where trial is imminent.”

While the full court denied more comprehensive relief Tuesday, it did agree that Commerce Secretary Wilbur Ross should not face deposition in the case until the government has a chance to seek Supreme Court review.

Furman had found in an earlier order that the evidence of bad faith warranted relief as extraordinary as having Ross testify.

The hearing Wednesday followed a motion by the Department of Justice that cited Gorsuch’s opinion in support of a bid to pause all proceedings.

Furman reserved ruling on the possible stay but emphasized in court this afternoon that Gorsuch’s partial dissent did not speak for the seven-member court. As to the appeals process, Furman also pointed out that the Supreme Court does not follow the schedule of any other court.

“It could be a week; it could be six months,” Furman said.

Justice Department attorney Kate Bailey revealed that the government’s next Supreme Court petition will attempt to prevent a trial entirely.

“We do believe the trial is unnecessary in this case,” she said.

Led by New York, multiple states, cities and organizations have joined together to oppose the 2020 census change.

Alleging that Ross added the citizenship question to the census for political and discriminatory reasons, they contend that the citizenship question will discourage participation by immigrants of color, causing population undercounts that will reduce the political power and federal funding of blue states for a decade.

Elena Goldstein, a senior trial counsel at the attorney general’s office, warned those effects could be imminent once the surveys go to press.

“As your honor noted, time is of the essence,” she said.

Although Furman declined to rule on the issue today, he did approve testimony by two expert witnesses, including the Commerce Department’s chief scientist and associate director John Aboud, who recommended against the citizenship question as costly and likely to harm the quality of the count.

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