US seeks to stop NY trial over census citizenship question

October 23, 2018 - 10:58 pm

NEW YORK (AP) — The Department of Justice sought late Tuesday to block a New York trial next month over challenges to putting a citizenship question on the 2020 census, contending that it's got the U.S. Supreme Court on its side.

The Justice Department filed papers ahead of a hearing scheduled in New York for Wednesday before U.S. District Judge Jesse M. Furman.

It said Furman should temporarily halt all evidence gathering for a trial scheduled for Nov. 5 so that the Justice Department can attempt to convince the Supreme Court to halt the litigation.

Furman is considering lawsuits brought by over a dozen states and big cities, among others, who say the citizenship question will discourage immigrants from participating, diluting political representation and federal dollars for states that tend to vote Democratic.

He has permitted lawyers to gather evidence which included the depositions of key figures in the Commerce Department, which oversees the administration of the census every decade.

The Justice Department maintains that rulings regarding lawsuits challenging the census decisions should be based solely on the administrative record, without the gathering of additional evidence.

Furman had ordered Commerce Secretary Wilbur Ross to submit to a deposition, saying others have said that only he could answer certain questions.

On Monday, the Supreme Court ruled that Ross would not have to immediately submit to a deposition, though it allowed other evidence gathering to continue, including the deposition of assistant attorney general John Gore.

In its papers Tuesday, Justice Department lawyers wrote that it would be "inefficient and potentially waste significant resources" to proceed with the November trial while the United States seeks additional relief from the high court.

The papers quoted extensively from a dissent Monday by Justices Neil Gorsuch and Clarence Thomas to the Supreme Court order allowing the bulk of evidence gathering to continue.

The Justice Department noted that plaintiffs plan to call 28 witnesses at trial and have identified 523 exhibits. It estimated that over 3,500 attorney hours would be spent preparing for what was projected to be a two-week trial.

"Indeed, plaintiffs' witnesses include ten purported experts who explicitly seek to second-guess the Secretary's decision — testimony that would be plainly irrelevant if the government prevails in the Supreme Court," the Justice Department's attorneys wrote.

Amy Spitalnick, a spokeswoman for New York Attorney General Barbara Underwood, said that the U.S. lawyers already lost at the Supreme Court and now "are inexplicably trying again" with the lower court judge to halt proceedings.

"We will get to the bottom of how the decision to demand citizenship status was made, as we continue our case to ensure a full and fair Census," she said.

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