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Analysis

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.

(Image: Shut­ter­stock.com)