Census Bureau Ordered to Turn Over Key Info in Citizenship Question Fight

Crucial evidence may now be within challengers’ reach

July 3, 2018

A federal district court in New York issued a ruling today requiring the federal government to produce additional — and potentially crucial — evidence relating to the Commerce Department’s highly controversial decision to add a citizenship question to the 2020 Census.

At the end of a lengthy hearing before a packed courtroom, Judge Jesse M. Furman of the U.S. District Court for the Southern District of New York issued a ruling from the bench, granting the plaintiffs — which include states, cities, counties, and civil rights and immigration advocacy organizations, among others — much of what they wanted. 

At issue was the plaintiffs' request to get access to more information than the government originally provided in the administrative record that it had turned over in June. (The administrative record is the set of documents that the Commerce Department claims to have relied upon when it decided to add the citizenship question to the census.) In a run-of-the-mill challenge to a federal agency's decision, plaintiffs might only get the information in the administrative record. But the challengers here claimed that they were entitled to more for a variety of reasons, including that the government had not provided a full and truthful account of how it ultimately decided to add the question. The court largely agreed with the challengers.

Under the court’s order, the plaintiffs will receive an updated version of the administrative record. The court determined that the original version of the record appeared to be missing documents. Chief among them: communications between the Commerce Department and the Justice Department that a June memo from Commerce Secretary Wilbur Ross suggested should exist. 

The plaintiffs will also receive a list from the government that will identify each document that it decides to withhold from the administrative record on grounds of privilege. This will allow the plaintiffs to challenge any documents that they believe the government has improperly withheld. 

Finally — and perhaps most importantly — the plaintiffs will have the opportunity to get evidence from the government beyond what ends up in the administrative record. The court determined that the plaintiffs had brought enough evidence to the table to conclude that the government might not have been truthful about why it added the question. 

Crucially, the court did not find that the government had in fact acted in bad faith when it added the question. Instead, the court simply found that the plaintiffs had raised a substantial enough concern to allow them to look further into the government’s decision-making. This is another place where Ross’s June memo — which offers a different story for the origin of the citizenship question than the one in his original March letter explaining his decision — bolstered the plaintiffs’ case.

The court has placed some initial limits on the kinds of evidence that the challengers can get. They won’t be able to pull evidence from agencies beyond Commerce and Justice; they’ll be limited to deposing 10 potential witnesses; and they won’t be able to question former White House employees or advisors Steve Bannon and Kris Kobach, despite documents suggesting that both might have played a role in getting the citizenship question added. Judge Furman also deferred ruling on whether the plaintiffs could question Ross, suggesting that there might be separation-of-powers concerns with questioning members of the Trump administration.

Still on the table at the close of the hearing was the government’s motion to dismiss the challengers’ case. Judge Furman will rule on that motion, in his words, “in short order.” In the meantime, the government must put together a fuller record, and the parties must agree on a plan to identify additional relevant evidence.

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