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Supreme Court To Weigh In On Dispute Over Census Citizenship Question Evidence

The U.S. Supreme Court is set to hear oral arguments on Feb. 19 about whether Commerce Secretary Wilbur Ross can be deposed for the lawsuits over the citizenship question he added to the 2020 census.
Andrew Harrer
Bloomberg via Getty Images
The U.S. Supreme Court is set to hear oral arguments on Feb. 19 about whether Commerce Secretary Wilbur Ross can be deposed for the lawsuits over the citizenship question he added to the 2020 census.

Updated at 11:25 a.m. ET Monday

The U.S. Supreme Court has agreed to hear oral arguments in a dispute over evidence for the census citizenship question lawsuits. After the Trump administration added a controversial question about U.S. citizenship status to the 2020 census, more than two dozen states and cities, plus other groups, sued to get it removed. The high court will weigh whether Commerce Secretary Wilbur Ross can be deposed and what other evidence can be considered.

A hearing over these issues is scheduled to be held on Feb. 19, according to an order released on Nov. 16. The high court's decision adds another wrinkle to a legal battle that has complicated preparations for the constitutionally mandated head count of every person living in the U.S.

Attorneys for the Justice Department, which is representing the Trump administration, have asked U.S. District Judge Jesse Furman to pause proceedings for the two lead lawsuits in New York until the Supreme Court rules on the evidence dispute. In a court filing, the administration says that if Furman does not grant its request, it plans to ask for a stay from the 2nd U.S. Court of Appeals or the Supreme Court.

A seven-day trial for the New York cases ended a day before the high court announced its order. Furman was expected to issue his final ruling shortly after closing arguments, which are set to take place on Nov. 27.

The hotly-contested question — which asks, "Is this person a citizen of the United States?" — was added to the census in March by Ross, who oversees the Census Bureau.

Ross has said the Justice Department wants the question to better enforce part of the Voting Rights Act, but critics of the question are concerned that asking about citizenship will discourage households with noncitizens from taking part in the census and jeopardize the accuracy of the information collected.

The evidence dispute stems from lower court orders for the New York-based lawsuits. In July, Furman forced the Trump administration to release additional internal documents about Ross' decision beyond the record of emails and memos initially filed with the courts. Furman also allowed plaintiffs' attorneys to depose senior officials at the Census Bureau and Commerce Department. After pushback from the administration's attorneys, the judge ordered Ross to sit for questioning under oath, noting that the commerce secretary's "intent and credibility are directly at issue in these cases."

"The Court found reason to believe that Secretary Ross had provided false explanations of his reasons for, and the genesis of, the citizenship question," Furman wrote in an opinion last month.

Justice Department attorneys argued that the plaintiffs should not be allowed to investigate Ross' mental processes. These lawsuits, they insist, should be resolved based on the record of documents the administration has already released.

The high court's order came shortly after Furman closed the trial record for the two New York-based lawsuits. The judge said he may reopen the record to include testimony from Ross' deposition if the Supreme Court allows it to continue before he issues his final ruling.

During the trial, Furman noted that he was "a little surprised to see" that Ross gave an interview to Yahoo Finance on Nov. 13 about the citizenship question "given that he didn't have time" for a deposition.

The Commerce Department's office of public affairs and a Justice Department spokesperson, Kelly Laco ,declined to comment on the Supreme Court's order.

"The Trump administration is terrified of having to explain on the record why it added a census citizenship question, and has repeatedly tried to shield Commerce Secretary Wilbur Ross from answering questions under oath," Dale Ho, one of the lead plaintiffs' attorneys at the ACLU, said in a written statement. "All relevant evidence should be considered."

"The record clearly shows that the Secretary's decision to demand citizenship status on the 2020 Census is illegal," Amy Spitalnick, a spokesperson for the plaintiffs' attorneys at the New York state attorney general's office, added in an email.

Potential trials for the other citizenship question lawsuits based in California and Maryland are scheduled to start in January. The final district court rulings for all of these cases are expected to be appealed ultimately to the Supreme Court.

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Hansi Lo Wang (he/him) is a national correspondent for NPR reporting on the people, power and money behind the U.S. census.