The legal issue the Supreme Court is asked to decide is whether the challengers must rely on the administrative record regarding the department’s decision, or whether the motivations of the officials should also be considered.
The court’s timing is curious, because one trial, in New York, already is underway.
U.S. District Judge Jesse M. Furman has scheduled closing arguments in that case for Nov. 27. He made a preliminary finding that there was evidence the Trump administration acted in bad faith, and said Ross and other administration officials could be deposed by New York Attorney General Barbara Underwood and other challengers in the suit.
It is unclear if Furman would change the schedule or perhaps delay his ruling because of the Supreme Court’s action.
The Supreme Court last month intervened to block the deposition of Ross, but allowed other depositions and the trial to go forward. Justices Clarence Thomas and Neil M. Gorsuch wrote at the time that they would have delayed the trial until the Supreme Court could weigh in on the bigger questions.
Ross announced in March that the question would be added to the household survey for the first time since 1950, saying it was needed to help enforce the Voting Rights Act. The states, cities and groups challenging it say it will intimidate some – particularly in immigrant communities — from participating and result in an inaccurate count.
All sides have said that the legal battle should move quickly, because the Census questionnaire needs to be completed by next spring.
The Supreme Court set oral argument in the case for Feb.19. Trials in cases in California and Maryland are scheduled for January.
The government has argued that Ross’s testimony is unnecessary, saying he has already explained his actions and that it was improper for courts to authorize “an intrusive fishing expedition involving the depositions of high-ranking government officials, including a cabinet Secretary.”
Plaintiffs in the case say Ross should be deposed based on “shifting and inaccurate” public and private statements he has made regarding his reasons for adding the question.
Ross had told Congress that he added the question in response to a December 2017 request for it from the Justice Department. But emails released as part of the New York lawsuit showed he was communicating with top administration officials, including White House adviser Stephen Bannon, over the matter for months preceding that request, including discussions about asking the Justice Department to make the request.
Dale Ho, director of the ACLU’s Voting Rights Project, said that “all relevant evidence should be considered.”
“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,” Ho said.
Tara Bahrampour contributed to this report.