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Analysis

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.

(Photo: Shut­ter­stock)