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Analysis

Where Things Stand in the Citizenship Question Lawsuits

Our latest update on the Citizenship Question debate.

October 12, 2018

The trial dates for legal chal­lenges to the Commerce Depart­ment’s contro­ver­sial decision to add a citizen­ship ques­tion to the 2020 Census are approach­ing. But the Trump admin­is­tra­tion’s last-minute request that the U.S. Supreme Court over­rule a few key orders from a New York trial court could affect the path ahead, poten­tially alter­ing the timing of the trials and the evid­ence at play in these cases.

Here’s where the cases stand as of Octo­ber 12, 2018.

What are these cases about?

Last March, the Commerce Depart­ment announced that it would add a citizen­ship ques­tion to the 2020 Census. This decision is highly contro­ver­sial. A citizen­ship ques­tion is very likely to affect the qual­ity and accur­acy of the census by deter­ring parti­cip­a­tion in it, espe­cially in vulner­able communit­ies — for example, house­holds with noncit­izen members. An under­count of these communit­ies would seri­ously and unfairly skew the distri­bu­tion of polit­ical power and fund­ing at the federal, state, and local levels.

States, cities, and advocacy groups quickly chal­lenged the Commerce Depart­ment’s decision, filing six lawsuits (two each in New York, Cali­for­nia, and Mary­land). The lawsuits contend that the ques­tion is uncon­sti­tu­tional because it would viol­ate the federal govern­ment’s duty under the Consti­tu­tion to count the “whole number of persons” in the United States. They also contend that the Commerce Depart­ment acted illeg­ally when it failed to follow proced­ures mandated under the federal Admin­is­trat­ive Proced­ure Act. Some of the suits go on to assert that the admin­is­tra­tion intro­duced the citizen­ship ques­tion inten­tion­ally to discrim­in­ate against Lati­nos, Asian Amer­ic­ans, and other groups with large numbers of noncit­izens, and allege that offi­cials across the federal govern­ment illeg­ally conspired to add the ques­tion.

What’s been happen­ing in these cases?

In the open­ing stages of these cases, the Trump admin­is­tra­tion asked the trial courts to throw the chal­lenges out. Among other things, the admin­is­tra­tion argued that it has basic­ally unfettered say over what to include on the 2020 Census. Every court rejec­ted these argu­ments and has allowed the lawsuits to proceed. 

At present, all of the cases are rapidly moving toward trial:

Court

Evid­ence-Gath­er­ing Dead­line

Trial Date

New York

Octo­ber 12

Novem­ber 5

Cali­for­nia

Octo­ber 26

Janu­ary 7

Mary­land

Novem­ber 2

Janu­ary 22

 

However, the Trump admin­is­tra­tion has poten­tially thrown a wrench into the works with an appeal asking the Supreme Court to over­turn several trial court rulings about what evid­ence the admin­is­tra­tion must provide to the plaintiffs and which offi­cials from the federal govern­ment must sit for ques­tion­ing under oath.

What is the Trump admin­is­tra­tion appeal­ing?

The appeal involves three orders issued by a federal trial court judge in Manhat­tan and upheld by the appeals court that hears cases from New York. 

The first order allowed 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 that the Commerce Depart­ment claims it relied upon when it decided to add the citizen­ship ques­tion). 

The second order allowed the chal­lengers to ques­tion John Gore, the then-head of the Justice Depart­ment’s Civil Rights Divi­sion, under oath. Gore was, the chal­lengers argue, a key mover in discus­sions between the Commerce Depart­ment and the Justice Depart­ment to develop a highly dubi­ous and appar­ently pretextual rationale for asking the citizen­ship ques­tion.

The third order permit­ted the chal­lengers to ques­tion Commerce Secret­ary Wilbur Ross under oath, setting the stage for a Cabinet secret­ary to provide sworn testi­mony in a civil case for the first time in 19 years.

What is the admin­is­tra­tion asking the Supreme Court to do?

Form­ally speak­ing, the admin­is­tra­tion is asking the Supreme Court to issue a “writ of manda­mus,” the legal term for a court order requir­ing a govern­mental offi­cial to do some­thing. In this case, that order would require the trial court judge to dissolve his orders. Writs like this are extraordin­ar­ily hard to get and are rarely gran­ted.

In lay terms, the admin­is­tra­tion is asking the Supreme Court to do two things: first, to over­turn all three of the trial court’s orders, and second, to shield Ross and Gore from sitting for ques­tion­ing while the Court figures out the admin­is­tra­tion’s first request.

If the Court over­turns the orders, that would prohibit the chal­lengers from ques­tion­ing either Gore or Ross, prevent­ing chal­lengers from getting the fullest story about how the decision to add the ques­tion was made at the highest levels of the federal govern­ment. If the Supreme Court grants the admin­is­tra­tion’s request in full, it would also mean that the chal­lengers would be unable to use any docu­ments they have obtained outside of the admin­is­trat­ive record to prove their case.

What happens next?

The appeal is a two-step process. First, the request to shield Ross and Gore from ques­tion­ing while the appeal is proceed­ing will go to Justice Ruth Bader Gins­burg, the justice who hears emer­gency motions that come from New York. Under Supreme Court rules, Justice Gins­burg can decide herself whether to shield them — she already has done so tempor­ar­ily, allow­ing them to forego ques­tion­ing until Octo­ber 11 — or she can refer the request to the whole Court to decide. 

Separ­ately, the admin­is­tra­tion’s request to over­turn the trial court’s orders will go to the entire nine-member court. The justices have consid­er­able flex­ib­il­ity in how they decide that request: They can order addi­tional brief­ing, order oral argu­ment, or simply decide the request based on the exist­ing filings. 

How — if at all — will the admin­is­tra­tion’s appeal affect the timing of these cases?

That remains to be seen. In a case last year involving similar issues, the Court put exam­in­a­tion of witnesses on hold and then took about three weeks to issue a decision. That case is prob­ably the closest hint as to how the justices might proceed here, but it’s not possible to know for sure.

No matter what, the Court needs to move quickly to ensure that these cases get resolved in time for the 2020 Census to stay on track. A number of key dead­lines are approach­ing in 2019, includ­ing the normal dead­line for print­ing census forms.

(Image: Shut­ter­stock.com)