The Trump administration’s decision to ask U.S. residents about citizenship status on the 2020 Census is set to go to trial Monday morning after the U.S. Supreme Court denied a request from the Trump administration to delay the proceedings.
The Supreme Court said in a one-line order Friday evening that it would not delay the trial beyond the Nov. 5 start date while it reviews a decision from U.S. District Judge Jesse Furman of the Southern District of New York in July that allowed extra-record discovery in the case.
The plaintiffs in the lawsuit, a coalition of states and immigrants’ rights groups, will now make their case before Furman on Monday about why the U.S. Commerce Department’s decision to ask about citizenship violated the Administrative Procedure Act and the equal protection clause of the Fifth Amendment.
New York Attorney General Barbara Underwood is leading a coalition of 18 state attorneys general in the lawsuit. A different suit from the New York Immigration Coalition on the same issue was consolidated with Underwood’s litigation for trial. The group is represented by the American Civil Liberties Union, the New York Civil Liberties Union and Arnold & Porter.
They brought the case earlier this year based on claims that asking about immigration status on the census will lower participation rates in states with large immigrant populations, like New York. That could lead to fewer representatives in Congress and the Electoral College in those states and less federal funding in areas like education and health care.
Attorneys with the U.S. Department of Justice have challenged that argument, calling it “unproven” in their pretrial brief. They said the plaintiffs haven’t shown they have enough evidence to back up their claims at trial.
“Plaintiffs’ claims of Article III injury rest entirely on the unproven assertion that the reinstatement of a citizenship question will result in a differential undercount of the population because of a decline in self-response, leading to putative detrimental effects on apportionment and federal funding,” the DOJ wrote.
The Trump administration argued in the brief that the plaintiffs have been unable to quantify how many people will avoid the census because of the question, and that the U.S. Census Bureau has procedures in place to follow up with addresses that don’t initially respond to the survey. The DOJ plans to present evidence at trial on the latter point, according to their brief.
“Defendants will present considerable evidence of the efforts and resources that the Census Bureau will be devoting to ensure a full and complete enumeration, including the additional efforts and resources the Census Bureau is prepared to expend, if needed, due to the reinstatement of a citizenship question,” the DOJ wrote.
In their own pretrial brief, the plaintiffs wrote that they plan to use the Trump administration’s own data and experts against them to rebut those claims.
A report from the U.S. Census Bureau earlier this year, for example, estimated that the self-response rate of noncitizen households could decline by 5.1 percent, or more, if a question about citizenship is added to the census. That report is in the administrative record.
The report was authored by John Abowd, the chief scientist at the Census Bureau. Abowd is the only witness the Trump administration plans to have live at trial. The plaintiffs said in their brief that Abowd testified during his deposition that the estimated decline in response rates caused by the citizenship question could actually be higher than those initial projections.
They also plan to flip the Trump administration’s argument on proof by indicating the Commerce Department, itself, had no empirical evidence on the benefits of asking about citizenship before it decided to do so. They claimed the Trump administration decided to add the question, then later tried to come up with a way to justify it.
“Defendants affirmatively sought to conceal their reasons for adding the citizenship question to the census, instead shopping the question to multiple agencies, manufacturing a reason to support it, and constructing a record designed to frustrate judicial review of the actual basis of its decision. Such conduct should not be countenanced,” the plaintiffs wrote.
That position is supported by information obtained through discovery about conversations Commerce Secretary Wilbur Ross had about the issue early on in the Trump administration, the plaintiffs argued. Recent filings have shown that Ross spoke with former White House Chief Strategist Stephen Bannon and Kansas Secretary of State Kris Kobach about the citizenship question shortly after his confirmation last February.
“Steve Bannon, who decried the growth of immigrants of color in this country, not only discussed the citizenship question with Secretary Ross, but had him talk with Kris Kobach, who proudly claimed responsibility for the decision and told Secretary Ross the question was important because it would diminish the political power of immigrants and communities of color,” the plaintiffs wrote.
The Trump administration called that argument “cherry-picking of isolated statements” and said while Ross had considered the question early on in the Trump administration, he didn’t make a decision on the issue until much later.
“The secretary’s at-times emphatic language merely reflected a concern that the issue be resolved by March 2018, not a desire that it be resolved in a particular way,” the DOJ wrote.
The Supreme Court is currently considering a petition from the Trump administration to review a July decision by Furman that allowed extra-record discovery in the lawsuit. If the court rules against Furman’s decision, much of the evidence the plaintiffs plan to present at trial will not be allowed. The deposition of Ross, which was approved by Furman in September, will also be blocked.
Senior trial counsel Elena Goldstein and Executive Deputy Attorney General Matthew Colangelo are leading the case for New York. Kate Bailey is the lead attorney for the Trump administration. The trial is expected to last two weeks.