U.S. Commerce Secretary Wilbur Ross Jr. Photo: Andrew Harrer/Bloomberg

The deposition of Commerce Secretary Wilbur Ross Jr. in a lawsuit over his agency’s decision to ask about immigration status on the 2020 U.S. Census will be delayed until later this month, according to a source involved with the litigation.

Ross, who was originally scheduled to be deposed in the case yesterday, will be out of the country for an extended period of time and won’t be available for the deposition until the week of Oct. 22, two weeks before the case is scheduled to go to trial.

The plaintiffs in the case, a coalition of states and immigrants’ rights groups, have been asking to depose Ross for more than a month now. Their request was approved by U.S. District Judge Jesse Furman of the Southern District of New York three weeks ago, but his testimony has been delayed on several occasions by appellate courts and the Trump administration itself.

The U.S. Department of Justice asked the U.S. Supreme Court this week to stay the deposition pending a review by the high court of a decision from Furman in July that allowed extra-record discovery in the case. Furman said at the time there was “strong” evidence the administration acted in bad faith when deciding to add the question.

The DOJ pushed back on that claim in a reply brief on Friday with the Supreme Court on its application to stay the deposition. Solicitor General Noel Francisco wrote in the brief that, contrary to Furman’s decision, an argument from the plaintiffs that Ross was already predisposed to reinstate the citizenship question is not enough to show bad faith.

“Even if that were true, it would be insufficient to show ‘bad faith’ because it does not establish that Secretary Ross had unalterably prejudged the issue, acted on the basis of any legally forbidden motive, or did not actually believe his stated rationale,” Francisco wrote.

The decision was not unilaterally made by Ross, as evidence and testimony obtained through discovery have shown. A filing from the DOJ on Thursday revealed that Steve Bannon, a former chief strategist at the White House, had spoken to Ross at least once about the issue during the early months of the Trump presidency.

“Secretary Ross recalls that Steven Bannon called Secretary Ross in the Spring of 2017 to ask Secretary Ross if he would be willing to speak to then-Kansas Secretary of State Kris Kobach about Secretary Kobach’s ideas about a possible citizenship question on the decennial census,” the filing said.

Kobach has been an outspoken supporter of adding a question about immigration status to the census. He has claimed that not asking about citizenship dilutes the voting power of citizens in congressional districts with high immigrant populations.

Ross spoke to Kobach by phone about the issue during the early months of the Trump administration, according to emails obtained through discovery.

The revelation that Bannon was involved is not necessarily a smoking gun in the case for the plaintiffs. They want to depose Ross because other administration officials have previously testified that only he would be privy to the early conversations about adding the question.

They also want to get Ross on the record on a number of questions they said he has given conflicting answers on over the past year. He testified before Congress, for example, that the DOJ first “initiated” a request to add the citizenship question in December of last year. Ross then said in a memo released earlier this year that the Commerce Department had started considering the question shortly after his confirmation in late February 2017.

The plaintiffs also claimed aides at the Commerce Department arranged for the DOJ to request the question by having former acting Assistant Attorney General for Civil Rights John Gore pen a letter making the request. The letter was signed by another official with the DOJ.

That evidence, the plaintiffs said, more than justifies Furman’s decision to allow extra-record discovery, and subsequently for Ross to be deposed.

“If this is not a strong showing of ‘bad faith’ or pretext, nothing is,” the plaintiffs wrote in their brief to the Supreme Court on Thursday. “In light of this evidence, the district court’s findings that Plaintiffs made a strong showing of bad faith and that they were entitled to extra-record discovery are entirely consistent with this Court’s precedent.”

The New York Immigration Coalition, a plaintiff in the case, is represented by the New York Civil Liberties Union, the American Civil Liberties Union, and Arnold & Porter. New York Attorney General Barbara Underwood is leading a coalition of 18 state attorneys general in a concurrent lawsuit. The two cases were consolidated for trial.

They argued earlier this year that asking about immigration status will lower participation rates on the census in states with large immigrant populations, such as New York. That could lead to fewer representatives in Congress and the Electoral College in those states, they argued. It could also mean less federal funding in areas such as education and health care.

Senior Trial Counsel Elena Goldstein and Executive Deputy Attorney General Matthew Colangelo are leading the case for New York Attorney General’s Office. Kate Bailey, a trial attorney in the U.S. Department of Justice, is representing the Trump administration.

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