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.
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