A day earlier, the government had sought an emergency stay from an appeals court before waiting for Furman’s ruling. That request was denied Tuesday by the U.S. Court of Appeals for the Second Circuit in New York, which called it “premature,” since Furman had not yet ruled. Now that he has, the appeals court will automatically consider the government’s request.
Closing arguments in the trial are scheduled for next Tuesday.
The trial is one of several contesting the government’s March decision to ask respondents to the 2020 Census if they are U.S. citizens, with the rationale that it is necessary to enforce the Voting Rights Act. But opponents see it as a partisan move that will depress response rates in Democratic-majority jurisdictions with a high portion of immigrants. They say the question, which has not undergone the rigorous testing generally done when adding new material to the forms, could scare immigrants and their families from completing the form.
The government has tried multiple times to stop or delay the trial. In the latest request, it argued that because the Supreme Court said last week it will hear arguments over whether Commerce Secretary Wilbur Ross can be questioned about his decision to add the question, the trial should be halted until that ruling, expected in February.
Furman and the appeals court had ruled that Ross could be deposed, but the Supreme Court had temporarily halted his questioning. New York Attorney General Barbara D. Underwood, who is leading the plaintiffs in the New York case, said she believes she can win the case even without Ross’s testimony based on documents already filed in the case.
Furman had given the plaintiffs, which include over two dozen states, cities and organizations, until Tuesday to respond to the government’s request for a stay. In the response, Underwood noted that “Defendants have filed in this Court, the Second Circuit, or the Supreme Court an astonishing twelve requests to delay these proceedings in the eleven weeks since their first such motion was filed on August 31. That’s an average of a request to delay filed each and every single week from Labor Day to Thanksgiving.”
Underwood wrote that a delay would increase the likelihood that the question would not be resolved before census forms are due to be printed in June.
“Delay ill-serves the public interest in assuring that immigrant families and communities of color are not perpetually terrorized by fear and apprehension regarding the federal government’s motives — which the Census Bureau’s own analyses, from as recently as a few weeks ago, prove is occurring,” she wrote.
Furman agreed with her assessment on the timing, saying in his ruling that delaying the trial until February would make it “practically impossible” to resolve the question before the printing deadline.
In his ruling, Furman characterized the government’s efforts as a Sisyphean task, noting that “they sought and were denied virtually the same relief only weeks ago — from this Court, from the Second Circuit, and from the Supreme Court itself,” and saying it was “hard to see the point” of its litigation strategy.
The Justice Department declined to comment further on its request or whether it would seek an emergency stay from the Supreme Court.
In its request to the Second Circuit, the government had written: “Although this Court and the Supreme Court previously denied the government’s request to stay district court proceedings pending the Supreme Court’s resolution of the government’s then-pending petition . . . the Supreme Court’s decision to grant the petition is a significant change in circumstances that merits revisiting the question whether a stay is justified.”
The government quoted Justice Neil M. Gorsuch noting that when the Supreme Court announces it will review a given case, lower courts should “normally” stay proceedings and “await further guidance.”
The government explained that it had not waited for Furman to rule and instead moved on to the appeals court because Furman had given plaintiffs two days to respond to it, “thus implicitly denying the government’s request for an immediate stay.”
In his ruling, Furman disagreed that the Supreme Court’s decision represented a significant change.
In another lawsuit filed Tuesday, the Electronic Privacy Information Center challenged the Commerce Department’s failure to conduct privacy impact studies before undertaking “arguably the most consequential decision in the Census Bureau’s recent history.”
The watchdog group asked a federal judge in Washington to bar the government from adding the question to the 2020 Census until assessments have been competed.
The citizenship question presents “unique threats to privacy, public cooperation, and the accuracy of the resulting data,” the lawsuit alleged, risking the sharing of data for law enforcement purposes despite a law requiring that census data remain private for 72 years.
The center and other groups filed similar privacy impact lawsuits last year that derailed the Trump administrations’s abortive voter fraud commission, prompting the Presidential Advisory Commission on Election Integrity to suspend collection of state voter registration files and delete information that had been illegally obtained.
Spencer S. Hsu contributed to this report.