Judge Orders Secretary Ross to Sit for Deposition in Census Case

MANHATTAN (CN) – Commerce Secretary Wilbur Ross must sit for deposition concerning his move to include a citizenship question on the 2020 census, a federal judge ordered Friday.

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)

Following up on his finding in July that the challengers made a strong showing of bad faith on the part of the government, U.S. District Judge Jesse Furman said the secretary’s “intent and credibility are directly at issue.”

A judge with the Southern District of New York, Furman has since April been presiding over a challenge by 18 states, as well as several cities and civil rights groups, to the attempted shakeup of the decennial census.

They contend that Ross added the citizenship question to discourage participation by immigrants of color. An undercount of these populations, which traditionally vote Democratic, would likely reduce the political power and federal funding of blue states for a decade.

The census has not inquired about citizenship status since 1950.

Amy Spitalnick, a spokeswoman for New York Attorney General Barbara Underwood, celebrated the ruling.

“As we argued, Secretary Ross has unique, first-hand knowledge of why the Trump administration decided to break with decades of policy and demand citizenship status on the 2020 Census,” Spitalnick said. “Secretary Ross testified to Congress that DOJ initiated the request for the citizenship question because of Voting Rights Act concerns; yet documents show otherwise, instead reflecting Secretary Ross’ concern for reducing representation of communities with large immigrant populations. We look forward to getting to the bottom of this as we continue our suit to ensure a full and fair census.”

The Departments of Justice and Commerce have not responded to emails seeking comment.

Furman’s ruling notes that he is not ordering the deposition here “merely because Secretary Ross made the decision that plaintiffs are challenging.”

“Indeed, that could justify the deposition of a high-ranking government official in almost every APA case,” the ruling continues, using an abbreviation for the Administrative Procedure Act.

Furman said the deposition is critical here “because Secretary Ross was personally and directly involved in the decision, and the unusual process leading to it, to an unusual degree.”

From the beginning, the 12-page ruling emphasizes, “Ross manifested an unusually strong personal interest in the matter, demanding to know as early as May 2017 — seven months before the DOJ request — why no action had been taken on his ‘months old request that we include the citizenship question.’”

“And he personally lobbied the attorney general to submit the request that he ‘then later relied on to justify his decision,’” Furman added.

“Finally, as the court has noted elsewhere, he did all this — and ultimately mandated the addition of the citizenship question — over the strong and continuing opposition of subject-matter experts at the Census Bureau.”

Furman put the blame squarely on Ross for undermining his own credibility, noting that the record “casts grave doubt on” the secretary’s claims that he began contemplating the citizenship question only at the urging of the Department of Justice.

“Equally significant, Secretary Ross testified under oath that he was ‘not aware’ of any discussions between him and ‘anyone in the White House’ regarding the addition of the citizenship question,” the opinion states. “But there is now reason to believe that Steve Bannon, then a senior advisor in the White House, was among the ‘other government officials’ whom Secretary Ross consulted about the citizenship question.”

Rejecting the government’s argument that other sources could provide the challengers with the same insight that Ross would offer, Furman noted that the “plaintiffs have already pursued several of these options, yet gaps in the record remain.”

“To be sure,” the ruling states, “depositions of agency heads are rare — and for good reasons. But courts have not hesitated to take testimony from federal agency heads (whether voluntarily or, if necessary, by order) where, as here, the circumstances warranted them.” (Parentheses in original.)

Furman denied the claim from the government that forcing Ross to testify “would have serious repercussions for the relationship between two coequal branches of government.”

“In the final analysis,” Furman added, “there is something surprising, if not unsettling, about defendants’ aggressive efforts to shield Secretary Ross from having to answer questions about his conduct in adding the citizenship question to the census questionnaire. At bottom, limitations on depositions of high-ranking officials are rooted in the notion that it would be contrary to the public interest to allow litigants to interfere too easily with their important duties. The fair and orderly administration of the census, however, is arguably the secretary of commerce’s most important duty, and it is critically important that the public have ‘confidence in the integrity of the process’ underlying ‘this mainstay of our democracy.’”

The ruling specifies that the Ross deposition is not to go longer than four hours, and should be conducted either at the Commerce Department’s offices or some other location that is convenient for the secretary.

Ross also refused to stay his order, saying the government will have ample time to seek such relief from the Second Circuit.

Courthouse News reporter Adam Klasfeld contributed reporting to this story from New York.

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