An envelope containing a 2018 census letter mailed to a resident in Providence, R.I., as part of the nation’s only test run of the 2020 Census. Photo: Michelle R. Smith/AP

A federal judge has denied a motion from the Trump administration to stay discovery in state Attorney General Barbara Underwood’s lawsuit over a question about citizenship on the 2020 U.S. Census.

Judge Furman. Photo: Rick Kopstein/NYLJ

U.S. District Judge Jesse Furman of the Southern District of New York said in a decision Friday afternoon that discovery should go forward as scheduled, including a deposition of Acting Assistant Attorney General for Civil Rights John Gore. That deposition is scheduled for Sept. 12.

The Trump administration moved to stay discovery on the Friday before Labor Day weekend, which Furman took note of on three separate occasions in the decision. They were seeking to pause all discovery in the case, but particularly the deposition of Gore, Furman said.

Gore’s deposition could help Underwood get to the root of how the U.S. Department of Commerce decided to add a question about citizenship to the next census. Gore allegedly ghostwrote a letter from Department of Justice to Commerce Secretary Wilbur Ross asking that the question be added, Furman said.

Underwood and 17 other attorneys general are suing the Trump administration for adding the question earlier this year. They claimed in their lawsuit, filed in April, that asking about citizenship will decrease turnout for the census in states with large immigrant populations, like New York. That could cause those states to lose representatives in Congress and the Electoral College, and a smaller recorded population could also mean less federal funding in areas like education and health care, the attorneys general argued.

Furman said in a July decision that there was “strong” evidence the Trump administration acted in bad faith when deciding to add the citizenship question. That decision also advanced discovery in the case, which Underwood’s office has been conducting since that time.

That’s one reason Furman denied the Trump administration’s motion to stay discovery on Friday. He said there clearly wasn’t evidence of irreparable harm to support their motion when they waited so long to file it.

“Defendants waited nearly two full months to seek a stay of the court’s ruling (and even then filed their motion at 6 p.m. on the eve of a three-day weekend)—during which time the parties conducted substantial discovery,” Furman wrote in his decision. “That delay, in itself, belies defendants’ conclusory assertions of irreparable harm.”

Furman also rejected the Trump administration’s argument that he used an incorrect legal standard to determine bad faith in the July decision. Furman rebutted that argument, saying the administration had actually used an incorrect standard in asserting their claim, which was slim on evidence, he said.

Furman also said in a case as time-sensitive as this one, with the census coming up in less than two years, any delay could go against the public interest.

“Given the importance of the census and the need for a timely resolution of plaintiffs’ claims, staying discovery altogether will substantially injure both plaintiffs and the public interest,” Furman wrote.

Furman denied the administration’s request to stay Gore’s deposition separately, citing the same reasons.

“Put simply, a deposition of the person who apparently wrote the memorandum that Secretary Ross himself requested and then later relied on to justify his decision to add the citizenship question is highly relevant ‘to assessing the commerce secretary’s reasons,’” Furman wrote.

Underwood is leading the lawsuit along with attorneys general from Connecticut, Delaware, Illinois, Iowa, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Virginia, Vermont, Washington and the District of Columbia.

Kate Bailey is the lead attorney from the Department of Justice representing the Trump administration. A spokesman from the Census Bureau, which is within the Commerce Department, did not immediately respond to a request for comment.


US Judge Says White House Acted in Bad Faith Over Census Citizenship Question, Advancing AG’s Challenge

Underwood Promises Lawsuit Over EPA’s Latest Obama-Era Rollback

Underwood, Coalition of State AGs Promise Lawsuit Over EPA’s Fuel Efficiency Rollback