MANHATTAN (CN) – Under scrutiny for his addition of a citizenship question to the 2020 census, Commerce Secretary Wilbur Ross failed Tuesday to have the Second Circuit take deposition off the table.
“We find that the District Court did not clearly abuse its discretion in authorizing extra-record discovery based on a preliminary showing of ‘bad faith or improper behavior,’” the unsigned order from a three-judge panel states.
“The District Court, which is intimately familiar with the voluminous record, applied controlling case law and made detailed factual findings supporting its conclusion that Secretary Ross likely possesses unique firsthand knowledge central to the plaintiffs’ claims,” the 2-page order continues.
Ross can still seek relief from the Supreme Court, including the newly minted Justice Brett Kavanaugh, and Tuesday’s order gives the Justice Department 48 hours to do so.
The order for Ross to face deposition came a month ago in New York where several states have brought a lawsuit alleging that the citizenship question was added for political and discriminatory reasons.
Ross told the House Ways and Means Committee in March that he added the question at the Department of Justice’s request to enforce the Voting Rights Act. Since that time, however, new evidence has contradicted that assertion.
In September 2017, several months before he testified at the House, Ross received a memo from his deputy Earl Comstock telling him the Justice Department wanted him to leave the census alone.
“I spoke several times with James McHenry by phone, and after considering the matter further James said that Justice staff did not want to raise the question given the difficulties Justice was encountering in the press at the time (the whole Comey matter),” the memo states.
New York Attorney General Barbara Underwood, who is leading a coalition of 18 states and several civil rights group in challenging the change, said that anti-immigration hardliners like Kansas Secretary of State Kris Kobach and ex-White House advisor Steve Bannon have pressured the Commerce Department to politicize the survey.
Internal testing from the Commerce Department has shown that asking about citizenship will discourage participation by immigrants of color, who largely live in metropolitan areas that traditionally vote Democratic. The resulting undercounts could diminish political power and federal funding for blue states for the next 10 years.
Politico noted that, given the current composition of the court, Kavanaugh could cast a deciding vote in keeping a Trump administration cabinet member off the hot seat. Such a decision would be particularly contentious amid criticism over Kavanaugh’s partisan tirade during the congressional testimony that led up to his confirmation.