The Washington PostDemocracy Dies in Darkness

Judge declines to grant stay in census citizenship trial

Commerce Secretary Wilbur Ross testifies during a Senate Finance Committee hearing on Capitol Hill in June.
Commerce Secretary Wilbur Ross testifies during a Senate Finance Committee hearing on Capitol Hill in June. (Kevin Lamarque/Reuters)
Placeholder while article actions load

A federal judge on Wednesday declined to put a stop to a trial set to begin next month over including a controversial citizenship question on the 2020 Census, rejecting for now the Justice Department’s position that the matter will be settled by the Supreme Court.

“There is no stay,” said U.S. District Judge Jesse Furman, though he added that he would need time to consider the government’s arguments before making a final decision. “Everything will continue as previously ordered.”

The Department of Justice had sought late Tuesday night to temporarily block the trial, which is due to begin Nov. 5 in New York, and any pretrial submissions, including four depositions scheduled for this week.

The lawsuit, filed by 18 states plus several cities and civil rights groups and led by the New York attorney general, is seeking to stop the administration from adding a citizenship question to the decennial count.

It is one of six legal challenges to the question, which Secretary of Commerce Wilbur Ross announced March 26 would be added to the survey to help enforce the Voting Rights Act. The states and groups say it will intimidate some from participating and result in an inaccurate census, and a Census Bureau analyst has said it would harm the count.

How Democrats would work to kill the census citizenship question if they win the midterms

In recent months, documents released in the case revealed that Ross pushed for the question more actively, and much earlier, than he testified in congressional hearings.

An appeals court had earlier blocked several attempts by the government to have the trial thrown out and, later, to block the questioning of Ross and Assistant Attorney General John Gore.

But on Monday the Supreme Court ruled that Ross would not have to immediately submit to a deposition about his role in the question’s inclusion, though the deposition of Gore and other evidence-gathering was allowed to proceed. The court said it would entertain other objections from the government before the trial.

Given this, the Department of Justice asked U.S. District Judge M. Jesse Furman for a stay of trial proceedings and pretrial submissions pending a resolution in the high court.

The Department of Justice argued that since the Supreme Court could eventually rule in the government’s favor, the trial was a waste of the government’s resources.

Furman dismissed that argument, saying, “That is true of any trial that goes through the Department of Justice.” He indicated that it would have been useful to get a deposition from Ross.

Furman said that delaying the trial might mean that the appeals process would not be completed in time for the printing deadline. The Census Bureau has said the documents are scheduled to be printed in the summer of 2019.

The top concerns should be “getting a decision sooner rather than later” and “not having to do this again,” the judge said.

He also conceded that any ruling he made would be subject to review by a higher court, adding, “I’m unlikely to have the last word here.”

Elizabeth OuYang, a census consultant with the New York Immigration Coalition, said her group and the other plaintiffs were eager to see the case resolved in their favor. Including the question would “chill participation” in the next Census, she said.

“We are working with a time bomb here. The question needs to be removed,” said OuYang, who is also the coordinator of New York Counts 2020, a statewide coalition. “We have had a year of unrelenting anti-immigrant bashing. There is a huge distrust of the federal government right now and its intentions.”

Robert Barnes contributed to this report.