On Friday, the U.S Supreme Court refused to delay a trial to start on Monday that will test the legality of Commerce Secretary Wilbur Ross’s decision of addition of a question to the 2020 census asking the taker people whether they are citizens.
Every 10 years, the census is carried out and helps to determine political representation in Congress, federal funding of programs and other matters. The last census in 2010 didn’t include a citizenship question. The Trump administration's decision to add a question about citizenship to the 2020 census has been challenged by Advocacy organizations, 18 states and other cities and counties saying the citizenship question discriminates against immigrants and will reduce the accuracy of the census by lessening participation. The decision has been blasted by democratic lawmakers and immigrant rights groups, who have contended that it will make immigrants and their families less likely to fill out the form, leading to a less accurate and more costly census. For areas with large numbers of non-citizens, a census undercount could shift congressional districts and federal dollars, distributed on the basis of population, away from those communities.
In trying to restrict the evidence the challengers can use, the administration has contended that any challenge to the Commerce Department action should be based on the administrative record, not probes of how top government officials decided it should be added. However, states and organizations that brought the lawsuits have contended that Ross has “offered shifting and inaccurate explanations in his decisional memo and in testimony before Congress” as well as in new documents filed in the case.
Originally, Ross had decided to add the citizenship question at the behest of the Justice Department, which said it was needed to help enforce the Voting Rights Act, which protects minority voting rights. In March, Ross testified to Congress that he hadn’t discussed the citizenship question with anyone at the White House. However, it was later revealed that that he had discussed the issue with Stephen K. Bannon, former White House adviser and a Republican secretary of state who has been a leader in anti-immigration efforts.
Last week, U.S. District Judge Jesse Furman held that the trial could go forward and that the challengers could present evidence beyond the administrative record to try to show the real reason for the move, adding that, it would be decided later as to what to do with that evidence.
In asking the Supreme Court for a delay, the administration had contended that until the justices rule on a fight over evidence, there should be no trial in the legal challenge to the citizenship question. An indefinite postponement of the trial would have made it impossible to resolve the dispute before census forms are printed starting next year. During the hearing, Solicitor General Noel J. Francisco submitted that Ross had explained his actions and said it was improper on the part of the courts to authorize “an intrusive fishing expedition involving the depositions of high-ranking government officials, including a cabinet secretary.”
He also said “the most efficient path forward is to stay the trial and resolve the question whether the district court must confine its review of the Secretary’s decision to the administrative record, while leaving sufficient time for the district court to conduct its review followed by prompt appellate review.” Further, saying that there will be a full trial that includes “whether the Secretary harbored secret racial animus in reinstating a citizenship question to the decennial census”, Francisco said “that harm would not be fully (or even largely) remedied if [the Supreme Court] subsequently confined the district court’s review to the administrative record,” if the judge made such a finding.
On Friday, the Court refused to expand an earlier order that shielded Commerce Secretary Wilbur Ross from being questioned under oath in advance of the trial, without comment. Three conservative justices, Samuel Alito, Clarence Thomas and Neil Gorsuch, said that they would have granted the Trump administration’s request to stop the trial. Since justices are not required to publish their votes in such procedures, how the others voted, including new Justice Brett M. Kavanaugh, is unclear. The trial is scheduled to begin on Monday before U.S. District Judge Jesse Furman in New York.