Supreme Court Will Decide Census Deposition Case Next Year

(CN) – The Supreme Court agreed Friday to decide whether Commerce Secretary Wilbur Ross must testify about a change he OK’d for the 2020 census that could hurt Democratic voting power for the next decade.

Per its custom, the court released the order without any comment, slating the legal wrangle for arguments on Feb. 19, 2019, some three months after a trial on the census change is expected to conclude.

It is unclear whether any ruling in that matter will be moot by that time.

In New York on Friday, U.S. District Judge Jesse Furman formally closed the trial record in the census case with one caveat.

“The court may reopen the trial record for the purpose of obtaining and including Secretary Ross’s testimony in the event that the Supreme Court’s stay of this court’s order compelling that testimony is dissolved before the court issues a final decision,” Furman’s 2-page order today states.

Ross appealed to the Supreme Court after Furman ordered him to face deposition about his sworn testimony to Congress that his addition of a citizenship question to the census followed a request by the Department of Justice, with the aim to help enforce the Voting Rights Act.

Furman, who is hearing the case in New York without a jury, found that the secretary’s testimony appeared to be “false” and made in bad faith. He will decide whether the Commerce Department’s change to the census violates the Administrative Procedures Act’s safeguards against arbitrary and capricious government action and the Fifth Amendment’s due process protections.

Closing arguments in that case are scheduled for Nov. 27, and Furman has not indicated when he will issue a ruling.

The New York Attorney General’s office, which is leading the lawsuit on behalf of 18 states and municipalities and five civil rights groups, did not immediately respond to a request for comment.

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.

The census is case is one of two that the Supreme Court agreed to take up on Friday. The other case, involving fraud claims against a defense contractor in Iraq, requires the Supreme Court to decide how the refusal by the United States to intervene in the case affects the statute of limitations.

Billy Joe Hunt brought the suit in Alabama against his former employer, the Parsons Corp., accusing it and fellow defense contractor Cochise Consultancy Inc. of submitting fraudulent invoices to the U.S. government in violation of the False Claims Act.

Cochise and Parsons disputed this analysis in a petition for certiorari, saying there is a three-way circuit split concerning whether a relator such as Hunt constitutes an official of the United States when the government has decided not to intervene.

The companies are represented by Ted Boutrous with Gibson Dunn, and Juris Day attorney Earl Neville Mayfield III represents Hunt. WilmerHale has filed an amicus brief on behalf of the U.S. Chamber of Commerce.

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