Justice Department ‘Tried Everything’ to Dodge Census Case, Judge Says

(Bloomberg) -- A group of U.S. states and cities suing to prevent the Trump administration from including a question about citizenship on the 2020 census at least got to see the end of the trial, after more than a dozen attempts by the federal government to derail it.

The group claims the administration is using the question to scare noncitizens away from the survey and reduce the political power of immigrants, their families and the states and cities where they live.

U.S. District Judge Jesse Furman, who is hearing the case in Manhattan without a jury, last week knocked down a government bid to stop the proceedings, calling its efforts “puzzling, if not sanctionable” and saying they showed an “extraordinary lack of respect” for judicial norms.

As late as Monday, government lawyers filed a request that the U.S. Supreme Court “reconsider” allowing the trial to go forward.

On Tuesday, both sides delivered their closing arguments in the trial, which began Nov. 5 after the high court denied a bid to put it on hold. During the hearing, Furman made several asides about the government’s numerous appeals. At one point, Furman questioned Justice Department lawyer Brett Shumate about an argument he hadn’t made.

“You seem to have tried everything you could to avoid a decision on the merits in this case,” the judge said.

Democracy at Risk?

Matthew Colangelo, a lawyer with the New York State attorney general’s office, argued that a ruling in favor of the Trump administration in the case could “permanently impair core elements of our constitutional democracy.”

“The outcome of this trial will affect every community in this country,” Colangelo said.

Colangelo said Furman could help rewrite the nation’s political map for the next decade. Census results are used to apportion U.S. congressional and state legislative seats as well as the Electoral College votes that determine presidential elections. The data are also used to help distribute hundreds of billions of dollars a year in federal aid.

The top Census Bureau scientist testified during the trial that the citizenship question could drive down responses to the survey in households with at least one noncitizen by at least 5.8 percent.

Commerce Secretary Wilbur Ross, whose department includes the Census Bureau, had said the question was intended to provide better data for the Justice Department to use to enforce the Voting Rights Act -- a rationale Colangelo called a pretext to support a policy that had already been decided.

“It is a question that our government is legally entitled to ask,” Shumate told Furman.

Shumate argued that Ross is entitled to set policy in his department, even against the arguments of lower-ranking officials. He said Ross made his decision after carefully considering all the arguments on the issue. Any negative results of the citizenship question would be the responsibility of individuals choosing to ignore their legal duty to respond to the census, he said.

He also argued the states and cities were merely speculating that asking U.S. residents about citizenship would degrade census data.

Tuesday’s arguments wrap up the first in a raft of lawsuits filed by dozens of states and cities to remove the question -- “Is this person a citizen of the United States?” -- from the once-a-decade census, where it hasn’t appeared since 1950. The plaintiffs in Furman’s courtroom, led by New York State, sued in April.

High Court

The Supreme Court has said it would hear an appeal in February to determine whether Furman is limited to evidence developed in the official administrative process to weigh the census change. Opponents of the administration’s plan want him to consider information from outside that record as well, including Ross’s actions and motives.

Ross has overruled the Census Bureau’s own experts, who opposed adding the question “because it would lead to lower-quality citizenship data at higher cost and increased burden,” the plaintiffs say. They have sought to prove that the addition of the question goes back to the outset of Donald Trump’s presidency, when Kansas Secretary of State Kris Kobach and former White House chief strategist Stephen Bannon, among others, weighed in with an anti-immigrant agenda.

Before the trial, Judge Furman told the two sides to file written arguments that cover both possible outcomes. On Tuesday, he referred to the government’s request Monday that the Supreme Court stop the trial.

“If they do reconsider, you will not hear from me,” Furman said. Otherwise, he said, he would rule “as soon as I can, hopefully in the next few weeks.”

The case is State of New York v. U.S. Department of Commerce, 18-cv-2921, U.S. District Court, Southern District of New York (Manhattan).

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