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Supreme Court Allows Plaintiffs to Continue Gathering Evidence in Citizenship Question Lawsuits

Challengers will be allowed to question a high-ranking Justice Department official under oath and include what he says as evidence at trial

October 23, 2018

Late last night, the Supreme Court issued an order allowing the challengers to continue gathering evidence in cases challenging the Commerce Department’s controversial decision to add a citizenship question to the 2020 census. 

The Court’s decision responds to a request from the Department of Justice to freeze three orders issued by a federal trial court judge in Manhattan. The Court declined to block two of those orders. As a result, the challengers will be allowed to question a high-ranking Justice Department official under oath and include what he says as evidence at trial. They’ll also be able to continue collecting documents and other information from the federal government beyond what’s in the administrative record in the case (the set of documents the Commerce Department claims it relied on when it decided to add the citizenship question).

The challengers have already obtained documents that undercut the Commerce Department’s purported reasons for asking for the citizenship question. Commerce claims that it decided to add the question after the Justice Department requested better citizenship data to enforce the Voting Rights Act. But documents that have emerged over the course of the case show that Commerce Secretary Wilbur Ross had been pondering the question almost a year before he received the Justice Department’s December 2017 request. For example, in an email from May 2017, Secretary Ross said that he was “mystified” as to why “nothing [had] been done in response to my months-old request that we include the citizenship question.” Secretary Ross has even revised his official story as the litigation has progressed, further implicating political actors like Steve Bannon and Kris Kobach in his decision. 

The Supreme Court’s order won’t stop the challengers from using these documents and others to prove that the Commerce Department’s supposed reasons for adding the citizenship question were just a pretext.

The Supreme Court did temporarily freeze the trial judge’s third order permitting the challengers to question Secretary Ross under oath. But whether the Court will permanently block Ross’s questioning remains an open question.

Ross’s questioning is now on hold until the Justice Department files another petition asking the Supreme Court to block it permanently. The Department has until October 29 to file that petition. If the Court denies the petition, the challengers will then be able to question Secretary Ross. If the Court grants it, the citizenship question cases will still proceed, just without direct testimony from Ross on the thinking that informed his decision. Either way, the cases challenging the citizenship question will continue in the trial courts. Time is of the essence to ensure that the 2020 census stays on track.