The Trump administration asked the Supreme Court on Tuesday to bypass its normal procedures and decide quickly whether a question about citizenship can be placed on the 2020 Census.
Last week, U.S. District Judge Jesse Furman of New York ordered the administration to stop its plans to add the question to the survey. Furman said Commerce Secretary Wilbur Ross broke a “veritable smorgasbord” of federal rules by overriding the advice of career officials who said including the citizenship question was likely to cut down the response rate and make the census less accurate.
Normally, the Justice Department’s next stop would be the U.S. Court of Appeals for the 2nd Circuit. But Solicitor General Noel Francisco said that would not leave enough time for a final ruling from the Supreme Court.
“The government must finalize the census questionnaire by the end of June 2019 to enable it to be printed on time,” he told the court. “It is exceedingly unlikely that there is sufficient time for review in both the court of appeals and in this Court by that deadline.”
Citing a Supreme Court rule, Francisco said the “case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.” He said he intends to ask the court to hear oral arguments in April or at a special session May.
Plaintiffs in the New York trial include 18 states and several cities and jurisdictions, along with civil rights groups. The trial addressed two of seven lawsuits that arose from Ross’s March decision to add the citizenship question. A trial over the question is underway in California, and another is beginning in Maryland.
Opponents say asking about citizenship would reduce response rates in immigrant communities, possibly affecting congressional redistricting and the distribution of federal funding. The government said the question was necessary to enforce the Voting Rights Act.
In Furman’s ruling, he said Congress prohibited the commerce secretary from adding a question to census forms if the information was available in some other way. Such data is was available from existing administrative records, he said.
Furman said that in a “startling number of ways,” Ross’s explanation for his decision was “unsupported by, or even counter to, the evidence.”
For instance, Ross said that the impetus for adding the question came from the Justice Department, which needed information to enforce voting rights laws. But the record showed that Ross had wanted to add the question before the Justice Department made any request and that it was the Commerce Department that began efforts to add the question.
The Supreme Court already had scheduled a hearing on one aspect of the case. The plaintiffs wanted to depose Ross about his reasons for adding the question. But the Supreme Court blocked that in October. In November, it said the trial in Furman’s court could go forward and agreed to consider the legal questions about forcing a high-ranking official to be questioned about motivation.
But that question seems less important now, and the court last week removed the case from its Feb. 19 docket.