U.S. Solicitor General Noel Francisco. Credit: Diego M. Radzinschi/ ALM

The Trump administration on Tuesday said it will ask the U.S. Supreme Court to overrule a federal judge’s decision that rejected the addition of a citizenship question on the 2020 census, marking the latest rush to the justices before an appeals court has weighed in.

The U.S. Justice Department urged the high court to move quickly to hear and decide the citizenship issue this term because of a looming June deadline for printing the census questionnaire. The government is challenging U.S. District Judge Jesse Furman’s Jan. 15 ruling, which said Trump officials violated various federal laws in moving to include the citizenship question.

The government’s filing, known as a petition for certiorari before judgment, is generally disfavored by the high court, which first seeks the benefit of the reasoning by lower appellate courts. In informing the court of its plan to file such a petition, U.S. Solicitor General Noel Francisco said he would seek expedited briefing in the case so that the justices could hear arguments in April or during a special sitting in May.

“In light of the impending deadline for finalizing the census questionnaire, it is ‘imperative’ for the government (and respondents as well) to obtain a final resolution of the important issues presented by this case,” Francisco wrote in Tuesday’s filing.

Any vote by the justices to block Furman’s ruling would indicate the government likely would prevail in its defense of the citizenship question. Five votes are required for a stay, and one of the criteria for a stay is the likelihood of success on the merits.

But are there five votes for a stay? Not necessarily.

Back in October, the Supreme Court, at the government’s request, blocked the trial deposition of U.S. Commerce Secretary Wilbur Ross but allowed the deposition of John Gore, acting head of the Justice Department’s Civil Rights Division, and other discovery outside the administrative record to go forward. Justice Neil Gorsuch, joined by Justice Clarence Thomas, would have gone further and halted the other extra-record discovery orders.

The justices had agreed to hear the Ross deposition dispute and set arguments for Feb. 19. But on Friday, the court removed the case from the argument calendar and suspended briefing. It’s unclear whether that argument will proceed as planned. Furman ultimately relied only on the administrative record as the basis for his decision striking down the citizenship question. That would suggest a deposition of Ross is moot.

U.S. District Judge Furman of the Southern District of New York. Credit: Rick Kopstein/ALM

In his 277-page decision in New York v. U.S. Department of Commerce, Furman held that Ross’ decision to add a citizenship question to the 2020 census violated the federal Administrative Procedure Act in “multiple independent ways” as well as certain requirements of the Census Act.

Ross, according to Furman, “failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices—a veritable smorgasbord of classic, clear-cut APA violations.”

The trial judge also concluded that evidence showed that Ross’ explanation for adding the citizenship question—to promote enforcement of the Voting Rights Act—was “pretextual.” Furman concluded that Ross “announced his decision in a manner that concealed its true basis rather than explaining it, as the APA required him to do.”

Furman, citing emails and other  administrative evidence, said Ross had made the decision by May 2017, well before the Justice Department asked for the question, and that Ross sought the department’s help to justify his decision.

Furman ruled in two consolidated lawsuits brought by 17 states, seven cities and the U.S. Conference of Mayors, and the New York Immigration Coalition.

The plaintiffs argued that the citizenship question would deter participation and cause an undercount that would undermine the federal government’s constitutional obligation to conduct an “actual enumeration” of the national population. They also claimed Ross’ decision was “arbitrary and capricious” in violation of the Administrative Procedure Act and discriminated against communities of color.

The challengers, whose lawyers included a team from Arnold & Porter, claimed a census undercount would result in the loss of federal funds and representation in Congress. Furman agreed about the potential harms, saying that “hundreds of thousands—if not millions—of people will go uncounted in the census if the citizenship question is included. That undercount, in turn, will translate into a loss of political power and funds, among other harms, for various plaintiffs.”

Similar challenges were filed in federal courts in Maryland, California and the District of Columbia. A trial in two consolidated challenges—Lupe v. Ross; Kravitz v. Department of Commerce—began Tuesday in the U.S. District Court for the District of Maryland.

Those suits, brought by the Mexican American Legal Defense and Educational Fund and Asian Americans Advancing Justice, include claims that Trump administration officials and others conspired to deprive minorities of their constitutional rights to equal representation and to fair allocation of federal funds by adding a citizenship question to the 2020 census.


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