A federal appeals court decided on Tuesday that U.S. Commerce Secretary Wilbur Ross must be deposed this week in a lawsuit over his agency’s decision to ask about citizenship on the 2020 U.S. Census unless the Supreme Court rules otherwise.
The Trump administration now has the opportunity to ask the high court to review a decision by U.S. District Judge Jesse Furman of the Southern District of New York in September that allowed Ross to be deposed in the lawsuit.
The appeals court left a stay on his deposition in place until Thursday to allow review from the Supreme Court. Attorneys with Attorney General Barbara Underwood’s office have scheduled the deposition for Thursday. The American Civil Liberties Union and New York Civil Liberties Union are litigating the case alongside Underwood, who is leading a coalition of 18 state attorneys general in the lawsuit.
The parties asked Furman to compel Ross’s deposition in September because other officials from the Trump administration had said during their own depositions that only Ross would be privy to internal conversations surrounding a decision to ask about immigration status on the next census.
Furman approved the motion to compel Ross’s deposition because “his intent and credibility are directly at issue in these cases,” Furman wrote in September.
The Second Circuit said on Tuesday that there was no reason to reverse that decision, especially when other officials who were deposed had pointed to Ross as a key source of information in case.
“The District Court, which is intimately familiar with the voluminous record, applied controlling case law and made detailed factual findings supporting its conclusion that Secretary Ross likely possesses unique firsthand knowledge central to the Plaintiffs’ claims,” the court said. “As the District Court noted, deposition testimony by three of Secretary Ross’s aides indicated that only the Secretary himself would be able to answer the Plaintiffs’ questions.”
A spokeswoman for Underwood’s office said in a statement that the decision is another step forward in their case against the agency’s decision to ask about citizenship.
“The Trump administration has repeatedly tried to block discovery in our suit—and courts have repeatedly rejected their attempts,” said Amy Spitalnick, spokeswoman for Underwood. “You have to wonder what they’re trying to hide. We’ll get to the bottom of how the decision to demand citizenship status was made, as we continue our case to ensure a full and fair Census.”
Neither the Commerce Department nor the U.S. Department of Justice responded to a request for comment on the decision.
The Trump administration had asked the Supreme Court to stay discovery in the case last week as they asked the high court to review a July decision by Furman that allowed extra-record discovery in the case. Justice Ruth Bader Ginsburg, the circuit justice for the Second Circuit, denied the request to stay discovery.
That was the latest in a series of decisions by federal courts rejecting attempts by the administration to halt discovery in the lawsuit after Furman’s decision in July. He has since rejected two attempts by the DOJ to halt discovery altogether, and several others to block depositions and the release of certain documents.
Underwood’s office is also scheduled to depose acting assistant attorney general for civil rights John Gore this week for their case. Gore allegedly “ghostwrote” a letter from the DOJ to the Commerce Department formally requesting that the citizenship question be added. The Commerce Department oversees the U.S. Census Bureau.
Discovery in the case is scheduled to end in the case on Friday, Oct. 12. Furman has set a trial date for Nov. 5 in Manhattan despite the administration’s request to decide the case on summary judgment.
Underwood’s office argued the case should go to trial to show the intent and motivation behind federal officials in adding the question, which was announced in April. The plaintiffs in the case have argued that a question about citizenship will decrease turnout for the census in states with large immigrant populations, like New York.
A lower recorded population could decrease the number of representatives those states are allotted in Congress and the Electoral College, the plaintiffs have argued. It could also mean less federal funding in areas like education and health care.
The Trump administration has said the question was added to better help enforce the Voting Rights Act.
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.