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Federal Appeals Court Steps into Census Fight

The ruling could set the contours for how much the public gets to learn about why the Commerce Department decided to include a question about citizenship.

September 24, 2018

Update: On Wednesday, the appeals court denied the government’s request to overturn the district court’s order. The result is that the groups challenging the citizenship question will be able to continue discovery, and will be able to depose John Gore, the head of the Justice Department’s civil rights division.

For the first time Tuesday, a federal appeals court will hear arguments in one of the challenges to the Commerce Department’s controversial decision to add a citizenship question to the 2020 Census. The Justice Department is asking a three-judge Second Circuit panel to bar the plaintiffs in two of these suits from using information they’ve already gathered in the litigation. The Trump administration is also seeking to prevent the plaintiffs from questioning a high-level Justice official. 

While this may be the first time in this case an appellate panel will hear argument about the plaintiffs’ right to use and gather information, it is not likely to be the last. Late Friday, the federal trial judge hearing the matter took the unusual step of granting the plaintiffs’ request to depose Commerce Secretary Wilbur Ross. If the ruling is upheld, it will be the first time in 19 years a Cabinet official has given sworn testimony in a civil case. 

What’s on appeal?

The Trump administration is asking the appellate court to overrule two orders from trial judge Jesse Furman of the U.S. District Court for the Southern District of New York. 

Furman’s first order — issued July 3 — permitted the parties challenging the citizenship question to obtain documents and other information from the federal government beyond what’s contained in the official administrative record (the set of documents the Commerce Department claims it relied upon when it decided to add the citizenship question). Normally, plaintiffs are limited to the administrative record when challenging a federal agency decision. But plaintiffs can conduct a much broader inquiry when a judge believes the government has acted in bad faith. That is precisely what Furman found in July and what the Justice Deptartment now seeks to overturn. 

The second order, which Furman issued August 17, allowed for the deposition of John Gore, head of the Justice Department’s Civil Rights Division and apparently a key contact between Justice and Commerce officials in discussing the citizenship question. The Justice Department wants to prevent the Gore deposition.

What’s the evidence that the Commerce Department acted in bad faith?

Judge Furman found strong evidence that the Commerce Department acted in bad faith when it added the citizenship question. 

For one, the Commerce Department’s official story doesn’t match the evidence. In the official letter announcing the Commerce Department’s decision in March, Ross claimed he added the citizenship question to satisfy a Justice Department request for better citizenship data to enforce the Voting Rights Act. But other evidence shows that Ross himself had been pondering the question almost a year before he received the Justice Department’s formal request in late December. In fact, in a May 2017 email, six months before the Justice Department letter, Ross wrote he was “mystified” as to why “nothing [had] been done in response to my months old request that we include the citizenship question.” (Ross has already revised the official story.)

There’s also evidence that political considerations drove the addition of the citizenship question. Emails show Kansas Secretary of State Kris Kobach, a leading member of the Trump administration’s notorious discredited voter fraud commission, advocating for the question. In one email to Ross, Kobach wrote that the question is “essential” to combat “the problem” of counting noncitizens “for congressional apportionment purposes.”

These and other facts strongly suggest Ross’s stated reasons for adding the citizenship question were not his actual reasons. That’s a problem for the Commerce Department — and the Justice Department that has to defend it — because the law requires federal agencies to make their decisions for valid reasons, not political pretext.

Why do the plaintiffs want to question John Gore? 

The plaintiffs believe Gore was the actual writer of the December 2017 Justice Department letter asking for addition of the citizenship question to the census. Gore had been involved in this matter before. Emails show that Gore coordinated a September 2017 phone call to discuss the citizenship question between his boss, Attorney General Jeff Sessions, and Ross. These emails show a Sessions adviser telling Ross’s chief-of-staff that, based on “what John [Gore] told [her],” the Justice Department could “do whatever” the Commerce Department needed regarding the citizenship question. 

These emails strongly suggest that the Commerce Department brought the citizenship question to the Justice Department and asked Justice to concoct a credible reason for asking it (“do whatever,” in other words). Given there’s a fair amount of evidence showing that the impetus for the citizenship question went from Commerce to Justice and not the other way around, it’s not surprising that the plaintiffs want to question Gore to learn exactly what happened. 

What’s at stake?

If the Second Circuit rules in favor of the Trump administration and curbs discovery, including blocking the Gore deposition, the plaintiffs will be limited to using the administrative record to prove their case. While the record contains evidence of bad faith — for example, Ross overruling Census Bureau professionals who urged him not to add the question — it doesn’t tell the whole story about how and why the Commerce Department made its decision. 

What’s next?

The Second Circuit is expected to issue an opinion relatively quickly if the litigation is to remain on schedule to meet its November 5 trial date. Of course, if it loses, the administration could always appeal to the Supreme Court, likely delaying the trial.

Update: September 25, 2018

A three-judge panel made up of Judges Pierre N. Leval, Rosemary S. Pooler, and Richard C. Wesley of the Second Circuit heard this appeal today, September 25, in a hearing that lasted about 40 minutes. The judges did not rule on the matter, but they plan to issue a ruling soon given the time concerns of the case.