Trump Administration Tries to Stop Trial Over Census Again

(Bloomberg) -- U.S. President Donald Trump’s administration is trying again to derail a trial over the legality of asking people in the 2020 census about their citizenship.

After 14 judges at various levels rejected the government’s efforts to stop lawsuits over the citizenship question, the administration submitted a seventh request to postpone the trial, this time citing a Supreme Court decision Monday that halted plaintiffs’ attempts to question Commerce Secretary Wilbur Ross about his decision to include the question in the census.

Advocacy groups and more than a dozen states, cities and counties have sued, saying the citizenship question discriminates against immigrants and will reduce the accuracy of the count by lessening participation. An undercount in areas with large numbers of non-citizens could shift congressional districts and federal dollars away from those communities. A trial is scheduled for Nov. 5 in New York.

“There is no basis to further delay adjudication of this matter,” New York Attorney General Barbara Underwood wrote in a Wednesday letter to U.S. District Judge Jesse Furman, saying the Supreme Court ruling over Ross’s deposition won’t affect the trial.

The request to put the trial on hold was filed late Tuesday with Furman, who ordered Ross to sit for a deposition in September, saying the secretary has first-hand knowledge of the claims and was "personally involved in the decision." Should Furman deny the request to postpone the trial, the government is likely to immediately appeal and could go directly to the Supreme Court.

During a status conference on Wednesday, Furman hinted he was skeptical of the request, saying he didn’t see the harm in having a trial given that the case is likely to be eventually decided by appellate courts.

"I am unlikely to be the last word here," Furman said, but he declined to immediately rule.

Kate Bailey, an attorney for the Justice Department, told the judge that not having Ross deposed in the case would "dramatically change" how the suit would proceed and possibly negate the need for a trial. While Bailey said the government believes the case should be resolved quickly, she said there isn’t a "dire" need to determine the issue as the census won’t be finalized until next year. The plaintiffs disagreed.

"Time is of the essence and we should proceed to trial," said Elena Goldstein, an attorney for New York.

While Ross testified to Congress in March that he hadn’t discussed the citizenship question with anyone at the White House, the Justice Department said in a recent court filing that he now recalls having spoken about it last year with Steve Bannon, an advocate of restraints on immigration who was Trump’s chief strategist at the time.

The government also asked Furman to put all pretrial proceedings on hold, including the deposition of Acting Assistant Attorney General John Gore, noting that while the Supreme Court denied its request to stop that part of the case from going forward, two justices dissented from the order and said they would have postponed it.

Underwood said Gore is scheduled to be questioned by plaintiffs’ lawyers Oct. 26, and other depositions have also been set up. The government said its lawyers must prepare to question more than two dozen possible witnesses at the trial, which is scheduled to last about two weeks, including 10 experts "who explicitly seek to second-guess the secretary’s decision."

The Trump administration says census-takers have asked about citizenship as far back as 1820. The last time every household was asked about citizenship on the decennial census was in 1950. From 1960 to 2000, a sample of the population was asked about citizenship. Since 2005, the Census Bureau has asked about citizenship in a separate annual survey sent to some people. The 2010 census did not include a citizenship question.

The case is 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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